Terms and conditions
Doula contract terms and conditions
Definitions and interpretation
Definitions - In this Agreement unless expressed or implied to the contrary:
ABN means Australian Business Number as defined in A New Tax System (Australian Business Number) Act 1999 (Cth).
Business means the business of the Doula and includes any business carried on under any brand name of the Doula’s business or by any other program product or services associated entity of the Doula.
Commencement Date means the date specified in the Schedule as the commencement date.
Confidential Information means information that:
(a) is by its nature confidential;
(b) is designated by the Client as confidential; or
(c) the Doula knows or ought to know is confidential; and includes:
(d) information of or about the Client or the Client’s family, including information about the Client’s health acquired by the Doula solely by virtue of the performance of the Services pursuant to this Agreement;
(e) information created, discovered, developed or made known to the Doula by the Client during the period of, or arising out of, the Doula’s performance of the Services;
(f) done or undertaken or proposed to be done or undertaken by the Client; and
(g) any other information classifiable in equity as confidential information.
Consent and Release Form means the document provided by the Doula to the Client to provide consent, and to release and indemnify the Doula in accordance with what is outlined in the form.
Doula means a person who provides practical and emotional support, for women, couples, and families through pregnancy, labour and birth and the immediate postnatal time.
Substitute Doula means a Doula that the Birth Consultant will provide in their replacement.
Estimated Hours means the number of hours specified in the Schedule.
Fees means the fees specified in the Schedule.
GST means a goods and/or services tax, value added tax, consumption tax on goods or services or some other similar tax on the supply or consumption of goods and/or services.
Healthcare Professional means a person who provides services in the health industry as categorised and regulated by the Australian Health Professional Regulation Agency (AHPRA) and any relevant National Codes or Legislation.
Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, throughout the world, including:
(a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names, knowhow, methodologies and trade secrets, and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world, whether or not such rights are registered or capable of being registered.
Material means any or all materials created by the Doula including but not limited to digital presentations, audio and video recordings, templates, documents, workbooks and all other resources created by the Doula provided to the client for the purpose of or in the course of providing the Services.
Pre-existing Material means any Material which exists at Commencement Date which is owned by the Doula or a third party, which is subsequently incorporated in any of the Client Material. The Client includes:
(a) its successors and permitted assigns.
The Client Material means:
(a) any Material created, written, or otherwise brought into existence by or on behalf of the Client in the course of performing the Services;
(b) any Material provided or required to be provided by the Doula to the Client as part of the Services; and
(c) any adaptation by or on behalf of the Doula of the Client Material or any other Material owned by the Client or its licensors.
Moral Rights means:
(a) a right of integrity of authorship;
(b) a right of attribution of authorship;
(c) a right not to have authorship falsely attributed; and/or
(d) a right of a similar nature, which is conferred by statute, and which exists or comes to exist anywhere in the world, in relation to a copyright work or other subject matter.
Medical Professional means a doctor, surgeon, nurse or any other certified or qualified professional in the medical industry.
Premises means a hospital, medical centre, birthing centre or a private place of residence.
Schedule means the schedule at Annexure A to this Agreement; Services means the services specified in the Schedule; Termination Date means the date specified in the Schedule as the termination date.
Interpretation - In this Agreement, unless the context otherwise requires: (a) words importing the singular include the plural and vice versa; (b) references to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time; (c) references to paragraphs, clauses, recitals and schedules are references to paragraphs and clauses of, and recitals and schedules to, this Agreement; (d) indexes and headings are for convenience only and will be ignored in construing this Agreement; (e) references to law include references to any constitutional provision, treaty, decree, convention, statute, act, regulation, rule, ordinance, subordinate legislation, rule of common law and of equity and judgment; (f) references to any law are references to that law as amended, consolidated, supplemented or replaced from time to time and include any order, regulations, instruments or other subordinate legislation made under that law; (g) references to any person includes references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and governmental agency; (h) references to $ or dollars are references to the lawful currency of the Commonwealth of Australia for the time being; (i) a provision in favour of 2 or more persons is for the benefit of them jointly and severally; (j) a provision binding on two or more persons binds them jointly and severally; (k) a reference to a person includes a reference to the person’s executors, administrators, legal personal representative, successors and permitted assigns; (l) a reference to any one gender includes each other gender (as the case may require); (m) a reference to a party means a person who is named as a party to, and is bound to observe the provisions of, this document; and (n) “includes” or “including” means includes or including without limitation.
Term of Agreement
(a) This Agreement will commence on and from the Commencement Date and will end on, unless earlier terminated under clause 16, the Termination Date. (b) The parties may renew or extend this Agreement for a further term by agreement in writing.
Services
Specification of Services - The Doula must provide the Services at the times nominated by the Client from time to time. It is the intention of the parties that the Doula will provide the Services on average over the Estimated Hours , however the Doula acknowledges that the actual hours worked by the Doula may be more or less than the Estimated Hours.
Quality of Services - The Doula must: (a) perform the Services at the standard that could reasonably be expected of a Doula of the Doula’s level of experience and in keeping with the standard and quality of the Business, and pursuant to Doula’s own the Code of Ethics ; (b) if the Client gives written notice to the Doula of any deficiency in the performance of the Services, use her best efforts to correct any such deficiency immediately.
Maintenance of records - The Doula must maintain records detailing Services provided pursuant to this Agreement in a form approved by the Client and must provide the Client with details of the hours worked and Services provided on a weekly basis and in such format and detail as the Client may require.
Doula’s Performance
Professional manner - The Doula must at all times behave and perform the Services in a professional, timely and competent manner using reasonable care, skill and diligence including without limitation, in accordance with a high standard of honesty and integrity.
Birth Attendance - The Doula must do all things possible to attend the Client’s birth in accordance with this Agreement. If the Doula is unable to attend the birth, and the Client has consented, the Doula may provide a replacement Doula to provide the Services in accordance with this Agreement.
Compliance with Agreement and laws - The Doula must observe and comply with the provisions of this Agreement and all applicable laws in the performance of the Services.
Limitation of Services
Medical, Clinical and Health Care - (a) The Doula does not perform any services of a Medical Professional or a Healthcare Practitioner. The Doula does not perform any clinical tasks including, but not limited measuring blood pressure, internal and external examinations, fetal assessments, general health assessments, vaginal exams, ultrasounds, injections, procedures associated with delivery or provide advice in the capacity of a Medical Professional or Healthcare Practitioner.
(b) In the event the Client chooses not to contract the services of a Medical Professional or Healthcare Practitioner for any part of the birth process, including pre-labour, post labour and during labour, the Client does so at their own risk. The Doula cannot and will not substitute the services, or assume the liability of a Medical Professional or Healthcare Practitioner, regardless of which Premises the birth takes place at and whom is present at the birth.
(c) A contravention of the above clauses (a) and (b) is unlawful. The Client acknowledges that placing, or attempting to place the Doula in circumstances where the Doula is expected to breach this clause 4.3 or any part of this Agreement, will be considered a material breach of the Agreement and result in termination pursuant to clause 13.1.
Birth Attendance - Notwithstanding Clause 3.2 of this Agreement, and provided the Doula took all reasonable steps to prevent it, the Doula cannot be held liable for non- attendance at the Client’s birth in the following circumstances;
(a) The Client failed to provide reasonable and sufficient notice at the first instance of labour and in accordance with the Doula’s instructions;
(b) The Client has an extremely swift birth which falls outside the general standards of expected labour times;
(c) In the event of a force majeure, or unforeseen circumstances out of the Doula’s control.
Birth Type
The Doula will not be in breach of this Agreement in the circumstances where they are unable to provide the Services or any part of the Services due to the Client having to undergo surgery, emergency procedures, a caesarean birth, or in the event of a still-birth.
Procedures, standards, directions
The Doula must comply at all times, including while on-site at any Premise, with all relevant policies, rules and standards of conduct which apply from time to time (including those relating to health, safety, security, business ethics or methodology, or contact with Healthcare Professionals, Healthcare Practitioner or staff). If the Client is aware of any such policies and procedures, the Client will endeavour to provide the Doula with reasonable prior notice.
Directions - The Doula must comply with the reasonable directions (consistent with the scope of the Services and the terms and conditions of this Agreement) of the Client and provide reasonable cooperation with the Client’s Medical Professionals, Healthcare Practitioner guardians, agents, contractors.
Other business - The Doula must not, while on the Premises or performing the Services, engage in or be involved in any other business activity apart from the provision of the Services.
Disruption - The Doula must not act in any manner, which could disrupt or adversely affect the Client’s birth processes or procedures.
Status as contractor
Independent contractor - The Doula acknowledges that they are an independent contractor to the Client and not an employee, partner or agent of the Client. The Doula must not represent themselves to any other person as an employee, partner or agent of the Client nor represent that they are able to bind the Client to any third party.
Third parties - No party can bind the other to any agreement with a third party.
Filing of forms and documents - The Doula agrees and warrants that they are and will continue to file all necessary documents and will make all payments necessary to the Doula’s status as an independent contractor.
Fees and invoices
Payment of Fees and Expenses - In consideration of the provision by the Doula of the Services and their other obligations under this Agreement:
(a) the Client will pay the Doula the Fees at the rate and in the manner specified in the Schedule;
(b) the Client will pay the expenses properly incurred by the Doula in carrying out the Services provided that the Doula shall obtain the prior consent of the Client if any expenses will be in excess of $100.
Invoices
(a) The Doula is required to submit an invoice to the Client upon receipt of payment for the Services.
(b) Subject to clause 8.1, payment shall be due within 7 days of receipt by the Client of a correctly rendered invoice. An invoice is correctly rendered if the: (i) Fees and are correctly calculated, incurred and due for payment; (ii) invoice enables the Client to ascertain the Services to which the invoice relates and the Fee payable in respect of the Services.
(c) The Doula is required to submit an invoice to the Client for expenses incurred in the provision of the Services , accompanied by original receipts with details of the expenses, date and times (as applicable) and in other cases by verifying documentation where requested by the Client.
GST
(a) The Doula may increase the amount (“original amount”) of any fee, charge, commission or other remuneration payable by the Client to the Doula under this Agreement which has not been specified to include GST, by an additional amount sufficient that the total amount payable by the Client, after discounting for the amount of any GST liability payable by the Doula on that total, is equal to the original amount.
(b) The Doula shall at any time deduct from any cost expense, disbursement or outgoing which: (iii) has been incurred by the Doula in connection with the performance of any supply to the Client; (iv) is reimbursable by the Client to the Doula under this Agreement; and (v) includes any GST payable by the Doula in the amount reimbursable by the Client, the amount of any input tax credit to which the Doula is entitled for any acquisition connected with that cost expense, disbursement or outgoing.
(c) The Doula shall at all times comply with any GST legislation in performing the Services and shall provide to the Client tax invoices in the proper form.
(d) The Doula shall at all times perform any action, including provision of copy invoices and other documents, information and assistance, in form and content sufficient to enable the Client to verify or calculate any input tax credit, reduced input tax credit or other fact relating to the acquisition by the Client of the Services.
(e) the Client acknowledges that the Doula’s ABN has been disclosed in the description of the Doula as a party.
Equipment
The Doula agrees that it must provide all necessary equipment and material required to perform the Services.
Confidential Information
Confidential Information - The Doula acknowledges that during the term of this Agreement, the Doula may be furnished with or may otherwise receive or have access to Confidential Information, including but not limited to medical records or information which relates to the Client’s health or family, or other information which may be considered sensitive or private.
Obligations regarding Confidential Information - The Doula must:
(a) use the Confidential Information, only for the purpose of performing the Services pursuant to this Agreement;
(b) maintain the confidentiality of the Confidential Information and ensure that, without the prior written consent of the Client (which the Client may withhold in its absolute discretion), the Confidential Information is not disclosed to or used for the benefit of the Doula or any third party;
(c) take all steps and do all things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information;
(d) not make or allow to be made copies or extracts of all or any part of the Confidential Information except with the prior written permission of the Client; and
(e) upon the expiration or termination of this Agreement, hand over immediately to the Client and not retain any record, representation or reproduction (written, electronic, photographic or otherwise) of the Confidential Information other than as required for the purpose of maintaining its business records, that the client has expressly consented to, or as required by any law.
Production of documents - The Client may demand (whether in writing or otherwise) the destruction of or delivery up to the Client of all Material in the possession or control of the Doula containing Confidential Information. The Doula must immediately comply with such a demand.
Intellectual Property Rights
Ownership of Intellectual Property Rights - The Doula agrees to:
(a) assign and hereby assigns to the Client all existing and future Intellectual Property Rights subsisting in any Client Material and notwithstanding any contribution that the Doula may have made in any Client Material;
(b) The Client may consent to the Doula’s use of Client Material for the purposes of marketing, or other, as per agreed.
Pre-existing Material - This Agreement does not affect the Intellectual Property Rights in Pre-existing Material. Except as provided in this Agreement, both parties retain intellectual property ownership of their Pre-Existing Materials.
Moral Rights - To the extent permitted by applicable Law, the Doula must unconditionally and irrevocably:
(a) consents to any act or omission of the Client, that would otherwise infringe their Moral Rights, if any, in relation to the Client Materials, whether occurring before or after their consent is given; and
(b) waives all Moral Rights in relation to the Client Materials for the benefit of the Client.
Grant of Licenses
(a) All Materials provided to the Client in the course of providing the Services are the property of the Doula, and are licensed to (not sold or given) to the Client under this Agreement;
(b) Subject to the terms of this Agreement, the Doula grants the Client a limited, non-exclusive, non-transferable, non sublicensable license to download, use and install a copy of the Materials made available to the Client solely for the purpose of the Services or as otherwise agreed;
(c) The Client warrants to the Doula to not (without the Doulas’ written consent) (i) copy, modify, or create derivative works based on the Services or Materials, (ii) distribute, transfer, sublicense, lease, lend, or rent the Materials to any third party, and (iii) modify, decompile, or disassemble the Materials.
Securing Intellectual Property Rights - During and after the term of this Agreement, the Doula will assist the Client in securing the Intellectual Property Rights as the Client requests, including the completion and execution of all documents and the doing of all things which may reasonably be necessary for the better protection or enforceability of such Intellectual Property Rights.
Return of Material
Client Material - Upon the expiration or earlier termination of this Agreement or upon demand, the Doula must return to the Client all the Client Material remaining in her possession.
Doula Material - Upon the expiration or earlier termination of this Agreement or upon demand, the Client must return to the Doula all the Doula Material remaining in her possession that the Doula has not expressly provided as part of the Services.
Destruction of material - The Doula must, delete or erase, or otherwise destroy any Confidential Information contained in computer memory, magnetic, optical, laser, electronic, or other media in the possession or control of the Doula that is not otherwise capable of delivery to the Client, or that the client expressly consents to the Doula keeping.
Use and disclosure - The Doula must ensure that any Material provided by the Client to the Doula is used only exclusively for the purposes of this Agreement. The Doula must ensure that such Material is not disclosed or made available to any person without the consent of the Client.
Doula’s representations and warranties
Representations - The Doula acknowledges that the Client has entered into this Agreement in reliance on the Doula’s representations as to her skill, experience, ability and resources to perform the Services in accordance with this Agreement.
Degree of skill, care and diligence - The Doula represents and warrants that:
(a) they will perform the Services with the degree of skill, care and diligence expected of a Doula experienced in providing similar services;
(b) they will comply with all applicable laws and standards relating to the performance of the Services; and
(c) any materials supplied will be reasonably fit for the purpose for which they are supplied.
No other understanding or agreement - The Doula represents and warrants that she is able to perform the Services and does not have any understanding or agreement with any other person which restricts their ability to perform or may be in competition with the Client or the Business.
No infringements of Intellectual Property Rights - The Doula warrants that: (a) the performance of the Services does not; and (b) the use by the Doula of the Client’s Material will not infringe the Client’s Intellectual Property Rights or any other rights of any person.
Indemnity
Physical or material harm or damage - By engaging the Services of the Doula, the Client does so at the Client’s own physical risk entirely and the Doula will not be liable jointly or severally to the Client for:
(a) loss of or damage to the Client’s personal property or effects;
(b) the death of or injury to the Client or the Client’s baby, whether born or unborn ; or
(c) any other loss, physical damage or injury sustained by the Client, in respect of any act, omission or event occurring during the term of this Agreement and in respect of and to the extent which the Doula is not entitled to a right of indemnity with respect to any of such loss or damage, death or injury under any policy of insurance effected by each such entity.
Termination
Termination by the Client the Client may terminate this Agreement by written notice with immediate effect, if
(a) the Doula breaches the terms or conditions of this Agreement, and: (i) such breach is not capable of remedy (other than by payment of damages); or (ii) such breach is capable of remedy but the Doula fails to remedy such breach within 7 days of being requested to do so in writing by the Client;
(b) the Doula fails to perform her obligations under this Agreement and such failure to perform amounts to a fundamental non-performance;
(c) the Doula becomes bankrupt or is unable to pay her debts when due or is deemed unable to pay her debts when due under any applicable legislation;
(d) a distress, attachment or other execution is levied or enforced upon or against any asset of the Doula;
(e) the Doula ceases to carry on business; (f) in the Client’s reasonable opinion, the conduct of the Doula is legally, ethically or morally incorrect;
(f) the Doula commits an act of dishonesty or fraud or is otherwise dishonest or fraudulent in performing the Services.
Notice of termination - When the Doula receives a notice of termination under clause 15.1, it must:
(a) cease performing the Services;
(b) immediately minimise any losses caused by the termination;
(c) co-operate fully in assisting any new Doula; and (d) promptly return all applicable records and the Client;
(d) reimburse or refund the Client for the Services which the Doula has failed to provide or has not provided in accordance with this Agreement
Termination by the Doula - The Doula may terminate this Agreement by written notice with immediate effect, if the Client fails to pay any Fees or expenses properly payable to the Doula in accordance with clause 6 or if the Client is in any other way, in breach of this Agreement.
No entitlement to compensation
(a) If the Client terminates this Agreement, except as expressly provided in this Agreement, the Doula will not be entitled to any compensation, but will be entitled to any Fees and expenses payable under clause 8.
(b) If the Doula Terminates this Agreement, except as expressly provided in this Agreement, the Client will not be entitled to any compensation, but will be entitled to any Fees paid in advance for any Services that have not been provided, under clause 7.
Conflict of interest
No conflict of interest - The Doula represents and warrants to the Client that, to the best of its knowledge, at the Commencement Date no conflict of interest exists or is likely to arise in the performance of the obligations by the Doula and under this Agreement.
Undertakings by Doula - The Doula undertakes that:
(a) subject to the remaining parts of this subclause, it will not enter into any arrangements, schemes or contracts, however described, which may cause a conflict of interest concerning the Doula’s performance of the Services; and
(b) should it become aware of the existence or the possibility of a conflict of interest, it will immediately notify the Client, provide details of the conflict of interest or potential conflict of interest, and provide details of the steps that it proposes to take to resolve or deal with the conflict.
Notices
Any notice, or other communication given or served under this Agreement by the Client or the Doula must be:
(a) in writing;
(b) if sent by prepaid ordinary post, addressed and sent to the receiver’s address (either the address of the Client or the Doula’s address);
(c) taken to be received: (iii) if delivered personally, on the date of delivery; (iv) if sent by prepaid ordinary post within Australia, upon the expiration of two working days from the date it is posted; or
(d) if transmitted electronically, upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient.
General
Assignment and subcontracting. The Doula cannot assign or subcontract any of her rights under this Agreement without first obtaining written permission of the Client.
Disputes - Where a dispute arises between the parties to this Agreement, the parties will in good faith and acting reasonably, use best efforts to resolve such dispute. If a dispute cannot be resolved by the parties using their best efforts, the parties may appoint a mediator appointed by the Law Society of New South Wales to mediate a resolution of the dispute. Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
Severability - If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the rest of this Agreement shall be read as far as possible as if the severed provision or part had never existed.
Entire agreement and variation - The parties agree that:
(a) this Agreement is the entire agreement between the Doula and the Client in respect of this consultancy arrangement and supersedes any other communication or understandings (whether written or oral) between the Doula and the Client in that regard; and
(b) any changes to this Agreement must be agreed in writing between the Doula and the Client prior to the changes coming into effect.
Governing law - This Agreement shall be governed by and construed according to the laws of New South Wales, Australia.
Compliance - In the performance of the Services, the Doula must comply with all applicable industrial awards or agreements, laws, standards, statutes, regulations, ordinances and codes.
Waiver - Failure by a party to exercise or delay in exercising a right under this Agreement does not prevent its exercise or operate as a waiver.
Survivorship - Clauses 11, 12, 13, 14, 17, 18.2, 18.5 and this clause 18.8 survive any expiration or termination of this Agreement and will have effect for the benefit of the parties.
Further assurances - The Doula will sign all documents and do all things necessary or desirable to give effect to this Agreement.