Part 1 Type of Package
1. Differing Packages
(a) The Care Package Application Form will state the type of Care Package which applies to the Care Recipient.
(b) The different Care Packages are defined in the Price List. These definitions include:
- which of the Care Services are included in that Care Package; and
- the amount of each of the Care Services (if any) that are included in that Care Package; and
- the cost for any additional Care Services that are used in excess of the CareServices included in that Care Package.
2. Flexicare Packages
If the Care Package is a Flexicare Package:
(a) Part 2 applies; and
(b) Part 3 does not apply; and
(c) Clause 15(a) does not apply; and
(d) Clause 24 does not apply
3. Home Care Packages
If the Care Package is a Home Care Package:
(a) Part 2 does not apply; and
(b) Part 3 applies; and
(c) Clause 15(a) applies; and
(d) Clause 24 applies.
Part 2 Flexicare Package (Specific Terms)
(a) A Flexicare Package is for a fixed term.
(b) In this case, Term means the period beginning on the Commencement Date and expiring after the period defined in the Price List for the relevant Care Package.
(a) The Care Recipient must pay for the Flexicare Package in available funds before the Commencement Date.
(b) If such payment is not made in available funds before the Commencement Date, then LingCare may terminate this Agreement.
(c) If additional Care Services are required in excess of the Care Services included in the Flexicare Package, then the Care Recipient must pay for those additional Care Services before they are provided.
(d) A Flexicare Package is not refundable. LingCare may, in its absolute discretion, provide a refund for the unconsumed portion of a Flexicare Package in unusual circumstances.
A Flexicare Package may be assigned to another Care Recipient if:
(a) the Care Recipient gives LingCare 2 Business Days’ notice; and
(b) the Care Recipient pays the fee set out in the Price List for a transfer; and
(c) that other Care Recipient signs a new Care Package Application Form with LingCare
Part 3 Home Care Package (Specific Terms)
(a) A Home Care Package Package is for a continuing term.
(b) In this case, Term means the period beginning on the Commencement Date and expiring on the earlier of:
- when LingCare terminates this Agreement under this Part; or
- when this Agreement expires under this Part.
(c) LingCare may terminate this Agreement if LingCare cannot care for the Care Recipient in the community with its resources.
(d) LingCare may suspend the provision of Care Services if the Care Recipient does not:
- pay for the Home Care Package; and
- make alternative arrangements for payment of the Home Care Package to LingCare’s reasonable satisfaction.
(e) This Agreement expires:
- upon relocation, if the Care Recipient notifies LingCare in writing that the Care Recipient wishes to move to a location where home care is not provided by LingCare; and
- 1 month after the Care Recipient notifies LingCare in writing that the Care recipient no longer wishes to receive the Care Services; and
- immediately upon:
- the Care Recipient’s condition changing to the extent that the Care Recipient no longer needs home care; or
- the Care Recipient’s condition change to the extent that the Care Recipient’s needs, as assessed by an aged care assessment team, can more appropriately be met by other types of services or care; and
- immediately upon the Care Recipient failing to meet the Care Recipient’s responsibilities as described in Schedule 2 of the “Charter of care recipient’s rights and responsibilities-home care” for reasons within the Care Recipient’s control.
(a) The Care Recipient must pay for the Home Care Package on a monthly basis in advance.
(b) LingCare may arrange for all or part of that Home Care Package to be paid by one or more of:
- a home care subsidy under the Aged Care Act; and/ or
- requesting an amount be deducted from any entitlement the Care Recipient may have under the Social Security Act 1991 (Cth); and/ or
- payment from the Care Recipient (or the Care Recipient’s nominee).
A Home Care Package consists of will provide the Care Recipient with an amount of Available Funds which is a cumulative amount made up of:
- the payments from, or on behalf of, the Care Recipient described above;
- the Fees charged by LingCare as described in the Price List or the Care Package Application Form; and
- the Fees charged by LingCare for the Care Services provided to the Care Recipient as described in the Price List
(d) If additional Care Services are required in excess of the Care Services included in the Home Care Package, then the Care Recipient must pay for those additional Care Services before they are provided.
(e) LingCare will provide a summarised monthly statement to the Care Recipient in electronic format. The Care Recipient may from time to time:
- request an ad-hoc summarised statement (which LingCare will provide if the request is reasonable); or
- request an itemised statement (which LingCare will provide upon payment of the fee set out in the Price List); or
- request a paper statement (which LingCare will provide upon payment of the fee set out in the Price List including, the itemised fee if the statement is itemised) or
- request a copy of the most recent statement of the audited accounts of LingCare’s aged care component (that includes the home care service)
9. Care Plans and Budgets
(a) Before the Commencement Date, LingCare must (in partnership with the Care Recipient), prepare and provide to the Care Recipient a care plan and individualised budget as required by the Aged Care Legislation.
(b) LingCare must (in partnership with the Care Recipient) review such care plan and individualised budget as required by the Aged Care Legislation and (if required) provided an updated copy of that care plan and individualised budget after such review.
10. Available Funds
(a) If the amounts paid by, or on behalf of the Care Recipient, exceed the fees for the Care Services provided, LingCare may hold excess funds (called Available Funds) on the Care Recipient’s account.
(b) LingCare holds Available Funds legally and beneficially (and not as stakeholder, depositholder or trustee).
11. Suspension of Services
(a) The Care Recipient may suspend, on a temporary basis, the Care Services by giving notice in writing to LingCare specifying the dates that the suspension will start and end.
(b) LingCare will suspend providing Care Services during such suspension and will not charge the Care Recipient any fees for the Care Services during such suspension.
Part 4 Services
12. Provision of Services
(a) During the Term, LingCare will provide the Care Services specified in the Care Package to the Care Recipient.
(b) LingCare is not responsibility for providing any services other than the Care Services.
(c) The Care Recipient also acknowledges that the Care Services are intended to be supplementary in nature. At all times, the Care Recipient is primarily responsible for his or her own care and wellbeing. The services LingCare provides are in the nature of aid and assistance only.
(d) The Care Services will be provided on a consumer directed care basis.
(e) In providing those Care Services, LingCare will:
- ordinarily, provide Care services between 8:00AM and 6:00PM during Business days (the Ordinary Hours); and
- only provide Care Services outside of Ordinary Hours if:
- expressly agreed between LingCare and the Care Recipient;
- if the surcharge rate expressed in the Price List is paid by the Care Recipient; and
- exercise reasonable care and skill; and
- provide those Care Services in a reasonably timely fashion; and
- comply with the Aged Care Legislation.
13. LingCare’s Discretion
(a) Due to the necessarily broad definitions of each of the Care Services, LingCare has a reasonable discretion to determine what tasks and activities are included or excluded in the definition of each of the Care Services.
(b) That determination may be notified to the Care Recipient by publishing those included or excluded definitions in the Price List or by giving written notice to the Care Recipient.
14. Consumption of Care Packages
(a) Each of the Care Services provided by LingCare will be consumed by the Care Recipient as follows:
- all Care Services will be charged on the basis of a continuous period of time (comprising a Session);
- if Care Services are provided on the same day but there is a break in between, then that shall comprise 2 separate Sessions;
- a minimum charge of one hour for the first hour of a Session applies; and thereafter, the Care Services will be charged in 15 minute blocks.
(b) Where the Care Services provided for a Session:
- comprise part of an hour (during the first hour), that Session is rounded up to one hour; and
- comprise part of a 15 minute block (after the first hour), that Session is rounded up to the closest 15 minute block
(a) If the Care Recipient has specified an Advocate, the Care Recipient specifically authorises LingCare to release to the Advocate:
- all information pertaining to this Agreement; and
- all information pertaining to any care plans and individualised budgets; and
- all information pertaining to any Care Services provided under this Agreement.
(b) The Care Recipient must specify an Authorised Person.
(c) If for any reason, LingCare is unable to obtain instructions from the Care Recipient (including, because the Care Recipient lacks legal capacity or is temporarily incapacitated), the Care Recipient specifically authorises LingCare to release to the Authorised Person:
- all information pertaining to this Agreement; and
- all information pertaining to any care plans and individualised budgets; and
- all information pertaining to any Care Services provided under this Agreement.
(d) The Authorised Person will also act as the Care Recipient’s emergency contact in the event that any emergency arises (which shall be determined by LingCare in its reasonable discretion). In that event, the Care Recipient authorises LingCare to release to the
Authorised Person all information pertaining to that emergency.
(e) For any purpose under this Agreement, instructions of the Advocate (if any) and the Authorised Person (while acting as such) are deemed to be instructions of the Care Recipient.
(f) LingCare may determine whether it requires any instructions to be verbal or in writing. It may do so by advising the Care Recipient, Advocate or Authorised Person (as appropriate) of the same).
Part 5 Your Obligations
16. No Gifts
(a) LingCare has a strict no gift policy.
(b) Do not provide any form of gift or consideration to any of LingCare’s Representatives – this includes gifts in kind or of goods and services.
17. Access to Premises
(a) During the Term, the Care Recipient must provide LingCare with reasonable access to the Care Recipient’s premises so that LingCare is able to provide the services.
(b) LingCare may suspend the provision of Care Services during any period where LingCare is unable to reasonably access the Care Recipient’s premises.
18. Safe Premises
(a) The Care Recipient must ensure that the Care Recipient’s premises and building (and equipment in it) is in a good, safe and working condition.
(b) LingCare may suspend the provision of Care Services during any period where the Care Recipient’s premises and building (and equipment in it) is not in a good, safe and working condition.
Part 6 Disputes/ Complaints
19. No Reprisals
LingCare must not take any adverse action against the Care Recipient because the Care Recipient has raised a dispute or made a complaint.
20. Legal Proceedings
Subject to Clause 20, the Care Recipient must not commence or proceed with a Claim against LingCare unless the Care Recipient has complied with the mechanism under this Part 5.
21. Disputes/ Complaints to LingCare
(a) If the Care Recipient has a dispute or complaint, the Care Recipient should first raise that dispute or complaint with the Care Recipient’s home care manager.
(b) That dispute or complaint should set out in detail:
- the cause of the dispute or complaint
- any relevant background facts or information; and
- the Care Recipient’s requirements to remedy the dispute or complaint.
(c) That home care manager will review the dispute or complaint and must exercise reasonable discretion to resolve that dispute or complaint.
22. Disputes/ Complaints to Independent Officer
(a) If the Care Recipient is not satisfied with the resolution of the home care manager, the Care Recipient should raise a dispute with the Privacy Officer by sending a copy of the original dispute or complaint to the Privacy Officer.
(b) Despite the Privacy Officer being engaged by LingCare, LingCare has authorised the Privacy Officer to act independently in respect of any dispute and in his role the Privacy Officer will act as an expert and not an arbitrator.
(c) The Privacy Officer will consult with both the Care Recipient and LingCare in order to gather all information and instructions that the Privacy Officer deems is necessary to resolve the dispute or complaint.
(d) The Privacy Officer will give notice to the parties setting out all of the information and instructions in question before the Privacy Officer makes a decision. That notice will form the last opportunity of the Parties to make any further submissions.
(e) The Privacy Officer will provide a recommendation to LingCare, that recommendation is binding on LingCare (but only if accepted by the Care Recipient). That recommendation is not binding on LingCare (if not accepted by the Care Recipient).
23. Aged Care Legislation
The mechanism under this Agreement does not exclude any other mechanism available under the Aged Care Legislation. Further information is available in the Aged Care Legislation and we will advise you of those mechanisms upon request.
Part 7 Order of Precedence and Variations
24. Aged Care Legislation
(a) This Agreement is subject to the Aged Care Legislation.
(b) In the event of any inconsistency between the Aged Care Legislation and this Agreement, the Aged Care Legislation prevails.
25. Order of Precedence
In the event of any inconsistency between documents comprising this Agreement, the following order of precedence applies:
(a) the Care Package Application Form;
(b) the Price List;
(c) these Terms and Conditions; and
- posting the updated version of the relevant document on its website; or
- giving notice to you of the varied document
(b) For existing Care Recipients, the Care Recipient is deemed to consent to those changes 1 month after the update version is posted or that notice is given (provided that the Care Recipient does not object to those changes).
(c) For new Care Recipients, those changes take effect immediately
(d) Changes to the Care Package Application Form may only be made in writing signed by the Care Recipient and LingCare.
Part 8 Mechanical Terms and Interpretation
27. Integrity Warranties
(a) Each Party warrants, undertakes and represents that it has the necessary power and authority to execute, deliver and perform this Agreement and to become bound by it.
(b) Nothing in this Agreement is intended or will be construed as constituting a partnership, agency, association or trust between the Parties. Neither Party will represent itself or hold itself out as being the partner, agent, principal, associate, trustee or beneficiary of the other
(c) To the greatest extent allowed by law, any warranty, representation, or implied term is excluded.
28. Time is of the Essence
Any stipulation of time in this Agreement is essential unless the context requires otherwise.
(a) Unless otherwise explicitly stated, all notices under this Agreement must be in writing and addressed to the relevant Party using the last known contact details of that Party.
(b) A Party may change its contact details for the purposes of this Agreement by notice to the other Parties.
(c) A notice, if validly given under this Agreement, is taken to have been received:
- if posted, 2 Business Days after posting;
- if sent by email, on the next Business Day
30. Entire Agreement
(a) This Agreement forms the entire agreement between the Parties as to its subject matter.
(b) All prior representations, statements, warranties and guarantees are expressly waived unless incorporated into this Agreement.
31. Severance/ Reading Down
(a) A term or part of a term of this Agreement that is void, illegal or unenforceable must be read down to avoid that result.
(b) If that term or part of a term cannot be read down to avoid that consequence, then that term or part of a term may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.
(a) LingCare may Transfer this Agreement to another approved provider capable of providing Care Services without the consent of the Care Recipient.
(b) This Agreement is personal to the Care Recipient and the Care Recipient may not Transfer this Agreement.
33. No Waiver
No failure by a Party to enforce that Party’s rights under this Agreement nor any forbearance delay or indulgence granted by that Party to any other Party shall be construed as a waiver of that Party’s rights under this Agreement.
34. Other Acts
Each Party must:
(a) use their best efforts to promptly do all things reasonably necessary to give full effect to this Agreement; and
(b) maintain all consents, approvals and authorities necessary for any party to perform its obligations under this Agreement
35. Default Interest
(a) Where an amount under this Agreement is due and payable but is not paid, then default interest shall accrue on that amount and shall be calculated daily.
(b) That default interest shall be payable at the following rate:
- Indicator Lending Rates; Lending rates; Small business; Variable; Small overdraft published by the Reserve Bank of Australia from time to time plus 2%
(a) In this Agreement, unless the context otherwise permits, all references to payments and obligations to make payments, including all references to compensation (including by way of reimbursement or indemnity), are, but for the operation of this Clause, exclusive of
(b) If a Party (the supplier) is required to pay GST in respect of a supply made under or in connection with (including by reason of a breach of) this Agreement, the recipient of the supply must (in addition to any other payment for, or in connection with, the supply) pay
to the supplier an amount equal to such GST (GST gross-up).
(c) If a GST gross-up is payable, then the supplier must give the recipient a Tax Invoice for the supply before making a demand for the GST gross-up.
(d) Provided a Tax Invoice has been given, the GST gross-up must be paid by the recipient:
- if any monetary consideration is payable for the supply, at the same time and in the same manner as such monetary consideration;
- if no monetary consideration is payable for the supply within 10 Business Days after the day on which the Tax Invoice is given.
(e) If any payment to be made to a Party under or in connection with this Agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that Party, then the amount of the payment must be reduced by the amount of any input tax credit to which that Party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with Clause 28(a).
(f) If an adjustment event has occurred in respect of a supply made under or in connection with this Agreement, any Party that becomes aware of the occurrence of that adjustment event must notify the other Party as soon as practicable, and the Parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that supply, or any refund of GST (or part thereof), is paid no later than 20 Business Days after the supplier first becomes aware that the adjustment event has occurred.
(g) Terms used in this Clause 28 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them in that Act and, in addition, GST includes a reference to any sales tax, turnover tax, duty, value added tax or other tax or duty in the nature of GST.
(h) In this Clause 28, a reference to a payment includes any payment of money and any form of consideration other than payment of money.
37. No Set-off/ Deduction
Payments under this Agreement must be made without set-off or deduction (except as authorised by the law or this Agreement).
38. Consents and Discretions
Where in this Agreement, a Party (the Requesting Party) requires the approval, consent or other discretion (together, the Decision) of another Party (the Deciding Party):
(a) the Requesting Party must:
- make a request for the Decision in writing; and
- provide the Deciding Party with all reasonably relevant facts and information required to make the Decision;
(b) the Deciding Party must make the Decision:
- in a reasonable manner;
- within a reasonable time; and
- must inform the Requesting Party of the Decision in writing provided that, such Decision may be subject to any reasonable conditions or terms;
(a) Except as expressly provided by this Agreement, each Party must bear their own costs in relation to the negotiation, preparation, execution and performance of this Agreement.
(b) Each Party must pay all stamp duty, registration fees and other government duties payable in respect of this Agreement and any document required by this Agreement.
40. Governing Law/ Jurisdiction
(a) This Agreement is governed by the laws of the State.
(b) The Parties submit to the non-exclusive jurisdiction of the Courts of the State and the Courts of the Commonwealth of Australia (in the registry in the capital of the State) and any Courts which may hear appeals from those Courts.
(c) The Parties agree not to object to the jurisdiction of those Courts on the basis of forums non conveniens, under the Service and Execution Of Process Act 1992 (Cth) or any other basis.
In this Agreement, unless the contrary intention appears:
(a) reference to:
- a gender includes all genders as is appropriate in the context;
- the singular include the plural and vice versa;
(b) a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, unincorporated body, authority or other entity;
(c) headings and the contents (if any) are for convenience only and do not affect interpretation;
(d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) a reference to a party to this document includes that party’s executors, administrators, successors and permitted assigns;
(f) the word (including) is not to be treated as a word of limitation;
(g) reference to a statute includes its amendments and replacements and any regulations under it;
(h) unless stated otherwise, one word or provision does not limit the effect of another;
(i) references to the whole includes any part;
(j) all obligations are taken to be required to be performed properly and on time;
(k) reference to any person, body or authority which has ceased to exist will be to its successor in title and where none then to the person, body or authority as then serves substantially the same objects as that person, body or authority;
(l) reference to the president of a body or authority, will in the absence of a president, be read as a reference to the senior officer or other person fulfilling the duties of president;
(m) reference to an Annexure, Clause or Schedule is to a clause or schedule (as the case may be) of or to this Agreement;
(n) a reference to this Agreement is a reference to this Agreement as amended, varied, novated, supplemented or replaced from time to time;
(o) a provision of this Agreement must not be construed to the disadvantage of a party because that party was responsible for the preparation of the Agreement;
(p) the Schedules and Annexures (if any) to this Agreement form part of this Agreement and have effect as if set out in full in this Agreement
(q) the Parties acknowledge that the facts set out in the Background are correct and the Background forms part of this Agreement and has effect as if set out in this Agreement except to the extent of any inconsistency with this Agreement;
(r) where an act would be required to be done, or a time limit or period would expire, on a day which is not a Business Day, the act may be done, or the limit or period will expire, on the following Business Day;
(s) this Agreement is written in plain English as far as possible. Its terms are to be interpreted so as to give efficacy to the Parties’ agreement;
(t) the specific provisions of this Agreement will not limit the interpretation of general provisions;
(u) a reference to a period of time means in the case of a day, the period of time commencing at midnight and ending 24 hours later, in the case of a month, a calendar month, and that period of time is calculated exclusive of the day on which any event occurs or on which the thing relates to;
(v) references to $, currency and money means Australian dollars;
(w) references to payment in available funds means any form of payment which is capable of being cleared in the bank account of the payee on the same day the payment is made;
(x) in the case of something to be done on any given day, that thing must be done by 5:00pm in the State on that day on a Business Day.
In this Agreement, unless the context otherwise requires, terms defined in the Key Terms section have the meaning given there and:
|Advocate||The Advocate (if any) specified in the Care Package Application Form|
|Aged Care Act||Aged Care Act 1997 (Cth)|
|Aged Care Legislation||The Aged Care Act and all determinations, instruments, principles and other subordinate legislation made under the Aged Care Act|
|Agreement|| (a) The completed Care Package Application Form; and|
(b) The Price List
(c) These Terms and Conditions; and
|Authorised Person||The Authorised Person (if any) specified in the Care Package Application Form|
|Authority|| (a) Any government agency, body corporate, department, minister or instrumentality; or|
(b) any Approved Stock Exchange within the meaning of the Income Tax Assessment Act 1997 (Cth); or
(c) any other regulatory body
|Business Day||Any day except Saturdays, Sundays and declared public holidays in the State|
|Care Package||The Care Package selected by the Care Recipient in the Care Package Application Form|
|Care Package Application Form||The form set out at http://www.lingcare.com.au/care-package-applicationform.pdf|
|Care Recipient||The Care Recipient named in the appropriate Care Package Form|
|Care Services|| Any combination of:|
(a) Domestic Care; and/ or
(b) Social Support; and/ or
(c) Personal Care; and/ or
(d) Personal Alarm
|Claims||Any action, claim, proceeding or demand whatsoever, whether presently existing or arising at any time in the future and whether referable to events or circumstances which have already occurred or which may occur in the future|
|Confidential Information|| (a) All unpatented inventions (including those the subject of a patent application), ideas, know-how, concepts, trade secrets, drawings, processes, recipes, specifications, ingredients, ingredients lists, weights and measures, techniques, software, source code, object code, productions, business plans, business projections, financial statements, management financial statements, management reports, contracts with non-Parties, customer and Care Recipient information, marketing information, sales information, information regarding orders, price lists, pricing structures and all other intellectual property, financial and business information;|
(b) all other commercially valuable information which is regarded as confidential;
(c) any private conversations between the Parties (or any of their respective Representatives);
(d) all copies, notes and records and all related information generated or derived from any other item above,
(e) anything in the public domain (except by breach of this Agreement);
(f) anything properly available to the public;
(g) anything which would otherwise form Confidential Information but is disclosed to a Party by a person who is not a Party
|Domestic Care||Ordinary household and domestic activities which would typically be performed on at least a weekly basis|
|Intellectual Property Rights||Includes all rights and interests, vested or arising out of any industrial or intellectual property, whether protected at common law or under statute, which includes any rights and interests in inventions (both patentable and unpatentable), copyrights, moral rights, designs (whether registered or unregistered), plant breeders rights and trade marks (whether registered or unregistered).|
|LingCare||LingCare Pty Ltd ABN 16 161 681 081|
|Party||A party to this Agreement|
|Personal Alarm||A device which alerts another person in the event of an emergency|
|Personal Care||Assisting the Care Recipient with personal maintenance activities|
|Price List||The price list set out at http://www.lingcare.com.au/price-list.pdf|
|Representatives||Includes an employee, officer, agent, contractor, consultant or partner|
|Social Support||Assisting the Care Recipient with social activities and visits outside of the Care Recipient’s home|
|Transfer||Includes an assignment, conveyance, declaration of trust or novation|