An AGREEMENT FOR COACHING SERVICES is made between you and the Company when:
- you indicate your acceptance of our Terms and Conditions set out here by submitting a request to engage us to provide services, together with the appropriate fee payment, and our bank or other financial institution confirms to us it has received that payment; and
- we confirm to you by e-mail or other means that we have accepted the requested engagement.
TERMS AND CONDITIONS
1. Definitions and Interpretation
2. Services and Fees
3. Payment of Fees
4. Intellectual Property
8. Confidentiality and Privacy
11. Dispute Resolution
12. General Conditions
1.) DEFINITIONS AND INTERPRETATION
In this agreement, unless the context requires otherwise, the following terms shall have the meanings shown here:
• “Client” means the person or entity with which the Company makes this Agreement. Where the person receiving the Services is different from the entity that is a party to the Agreement, for example, the employee or principal of that entity, references to the Client includes the person receiving the Services.
• “Company” means Wild Poppy Coaching & Empowerment PTY LTD.
• “Course Materials” includes all documents and information, in whatever format, including photocopies, printed material, and software, that we provide to you or give you access to for the purposes of the Services, including videos, audio recordings and text documents.
• “Fees” includes all amounts payable by you to us under this Agreement, in consideration for the provision of the Services or otherwise.
• “Loss” includes losses of any kind arising from an event, default or omission, including damages, investigation costs and legal costs.
• “Parties” means both you and us, and “Party” means either you or us.
• “Presenter” means the person providing the Services to you on our behalf.
• “Services” refers to the coaching services that we will provide you under this Agreement, including all meetings, advice, discussions, directed reading and selection and provision of Course Materials.
• “We” refers to the Company, and “us” and “our” have corresponding meanings.
• “Website” refers to the Company’s website at www.mireilleparker.com or such other website as the Company may substitute or add and notify to you.
• “You” refers to the Client, and “your” and “yours” have corresponding meanings.
The following rules apply to the interpretation of this Agreement:
• Headings are for convenience only and do not determine the meaning of clauses.
• Where any word is defined in the plural, the use of the word in the singular will have a corresponding meaning, and vice versa.
• A reference to a person or entity includes corporations, government bodies and partnerships, constituted under the laws of any country.
• Terms used in one gender include all other genders.
2.) SERVICES AND FEES
• Basic agreement. In consideration for your payment of the Fees, we will provide you with the Services.
• Request for Services. You will select the Services you require in the manner indicated on our Website, and will submit your payment of the appropriate Fees when requesting the Services. The appropriate rate of Fees will be indicated on our Website at the time that you submit your request, and that rate is hereby incorporated into this Agreement.
• Right to decline request. If for any reason, we are unable to provide the Services as requested, we may decline your request to provide you with the Services.
• Formation of agreement. If we accept your request, the Agreement is formed at that time.
• Rescheduling. Where our regular Presenter(s) are unable, for some unexpected reason, to provide you with the Services, we will have the right to vary the Services by rescheduling your coaching sessions, or, alternatively, by substituting a different Presenter, who may be a subcontractor. Any subcontractor we use will have the same level of expertise and skill as our regular Presenter(s).
3.) PAYMENT OF FEES
• Payment in advance required. We will provide you with the Services if you have paid the appropriate amount of Fees in advance.
• Use of credit cards. If you pay your Fees by credit card, you must not cancel your authorisation for payment of the Fees to us without our express prior permission. If your bank or other financial institution interrupts the transfer of funds to us via a chargeback or other method, you will remain liable for full payment of the Fees and must arrange payment by another means. If we cancel the Agreement for our convenience, we will refund your Fees payment to you. If we cancel the Agreement because of your material breach of your obligations, including in particular misconduct under clause 6, you will not be entitled to a refund. If you cancel the Agreement, you will not be entitled to a refund. We are unable to offer refunds in such circumstances because we will commit our time in advance for the provision of the Services to you, and may be unable to sell that time to another client in the event of your cancellation. You agree that this refunds policy is reasonable.
• Debt created. If you fail to pay any Fees due from you under this Agreement, you will continue to owe us the outstanding part of the Fees until they are paid in full, and you agree that we may, in addition to those Fees, demand from you, and that you will be obliged to pay, our costs of collecting the Fees or enforcing the payment of the Fees, including litigation costs and the fees of mercantile agents or legal fees.
4.) INTELLECTUAL PROPERTY
• No transfer of IP rights. By providing the Services and making available the Course Materials to you, we have no intention of transferring, and do not transfer, any ownership of the Course Materials to you, or any of our Intellectual Property rights, in those materials, including rights as owner or licensee.
• Limited licence. We grant you a limited licence to use the Course Materials for the sole purpose of your use of the Services, and to retain one copy for your future personal reference.
• Use of third party materials. Where the Course Materials include any material owned by a third party or in which a third party has Intellectual Property rights, we declare that we have authority to include that material in the Course Materials.
• No resale or copying permitted. You are not permitted to resell or copy our Course Materials, or to permit any other person to do so.
• Limited warranty. We will endeavour to design and provide the Services in a manner best suited to your requirements. We also promise that the Services will be provided by us in a professional and competent manner, having regard to the standards currently prevailing in the Australian business coaching industry. We make no other express guarantees, and, to the extent permitted by law, we exclude all implied guarantees regarding the quality or fitness for purpose of the Services (including the Course Materials).
• Outcome dependent on Client. You acknowledge and agree that the outcome of the Services will largely depend on the quality of your participation, including your diligence in engaging with the Presenter and the Course Materials, your regular attendance at coaching sessions, and the level of your care and attention in understanding and implementing our suggestions. We expressly disclaim liability for any Loss incurred by you as a result of your failure to participate properly in our delivery of the Services, and you hereby release us from any claims that you have or may in future have in respect of such Loss.
•Release. You hereby release us from all claims for Loss arising from your use of the Services or otherwise from this Agreement, other than claims for breach of the limited warranty given in clause 5.1.
• Disclaimer regarding nature of Services. You acknowledge and agree that the Services are strictly in the nature of coaching services, and are not marketed or provided by us as therapy or counselling, in particular psychological or psychiatric therapy or counselling. IF YOU BELIEVE YOU MAY REQUIRE PSYCHOLOGICAL ADVICE OR PSYCHIATRIC TREATMENT, WE URGE YOU TO CONSULT A PSYCHOLOGIST OR DOCTOR IMMEDIATELY. You hereby release us from any claims that you have or may in future in respect of any Loss arising from your failure to obtain psychological or psychiatric assistance in a timely manner.
• Cap on damages. In the event that we are liable to you for any Loss due to a breach by us of our obligations under this Agreement, our liability will be limited to the following amount: three times the total Fees payable in respect of the Services. You agree that this is a reasonable limitation, having regard to the nature of the Services.
• Obligation to follow instructions. You agree that you must strictly comply with all reasonable instructions given to you by our Presenter regarding your conduct while engaged in receiving the Services with, including any written code of conduct. In the event that you attend a coaching session held at any particular premises, you will also comply with all reasonable requests and rules imposed by the owner or operator of those premises, in particular any rules regarding health and safety.
• Inappropriate conduct. In the event that you engage in any inappropriate conduct, including any violation or wilful ignoring of instructions, requests or rules provided to you under clause 6.1, or any tortious or criminal conduct, we may immediately terminate the provision of the Services to you, request you to leave any premises at which the Services are being provided, and terminate this Agreement without further notice.
• Termination by Client. You may terminate this Agreement at any time.
•Termination by Company. We may terminate this Agreement at any time either at our convenience or for any reason provided by this Agreement, or because you have breached any material obligation imposed on you by this Agreement.
• Refunds on termination. In the event of termination under either clause 7.1 or 7.2, you will receive a refund of your Fees only if clause 3.2 entitles you to do so.
8.) CONFIDENTIALITY AND PRIVACY
• Confidentiality obligations. In the event that you disclose any confidential information to us, or we disclose such information to you, the Party receiving the information will safeguard and maintain the confidentiality of that information. For the purposes of this clause, “confidential information” does not include information already in the public domain, or which the receiving Party has received by another means which is lawful, and does include any information that the disclosing Party indicates, at the time of disclosure, is intended to be confidential, or which is clearly marked as confidential, or which, from the circumstances in which the information is disclosed, the receiving Party can reasonably be required to infer is intended to be confidential.
9.) GENERAL INDEMNITIES
• Client indemnity of Company. In addition to any other indemnities provided by you to us under this Agreement, you hereby indemnify us, and will continue to indemnify us, against any Loss experienced by us or by any person claiming through us arising from any breach by you of your obligations under this Agreement.
• Limited indemnities by Company. We hereby indemnify you against any Loss caused by our breach of our warranty given in clause 5.1, subject to the cap on our liability provided by clause 5.5. In the event that there is any claim against you by a third party for a breach of their Intellectual Property rights by reason of your use of our Course Materials, we will indemnify you against all Loss resulting from that claim.
The Parties agree that they will not engage in any conduct or communications, public or private, intended to disparage each other. In the event that any dispute arises between the Parties, they will resolve that dispute in accordance with clause 11. You acknowledge that our goodwill and reputation is extremely valuable to us, and that any slander, defamation, or unfair criticism of us or the Services may have serious consequences for us and cause us irreparable Loss, and you expressly indemnify us against any Loss caused to us by a breach by you of your obligations under this clause.
11.) DISPUTE RESOLUTION
• Except in relation to applications for urgent injunctions (which includes any threatened or ongoing breach of clause 10), the Parties agree that they must follow and implement the following procedure, in good faith, in relation to any dispute that arises between them regarding the interpretation or application of this Agreement.
• STEP ONE: An aggrieved Party must inform the other Party of the nature of the dispute, providing full particulars. The Parties will then confer, in person or by electronic means, in good faith, to resolve the dispute by negotiation.
• STEP TWO. If negotiation with in accordance with clause 11.2 does not resolve the dispute, within a reasonable time, then either Party may refer the dispute to a mutually acceptable mediator, and the Parties will participate in a mediation in good faith with a view to resolving the dispute with the assistance of the mediator and in accordance with a recognised code of mediation practice. In the event that the Parties are unable to agree upon a suitable mediator, either of them may request the President for the time being of the Law Society of Western Australia to appoint one.
12.) GENERAL CONDITIONS
• Governing law and jurisdiction. The Parties agree that the law in force in the State of Western Australia, Australia, will govern all aspects of this Agreement, and that they submit to the exclusive jurisdiction of the courts of that State.
• Severability. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be treated as severed from the Agreement, and the rest of the agreement will remain in force and be binding upon the Parties to the greatest extent possible.
• Entire agreement and relationship to marketing materials. This Agreement constitutes the entire agreement between the Parties with respect to all subjects considered here, and supersedes all other discussions and negotiations, and excludes all other prior or collateral agreements between the Parties. In the event that there is any discrepancy between the Agreement and our marketing materials, the terms of the Agreement will prevail.
• Binding nature of agreement. This Agreement will be binding on the legal representatives and successors at law of each Party, and will inures to the benefit of their heirs and successors.
• Nature of relationship. The nature of the relationship created by this Agreement is that of service provider and client, and nothing in this Agreement is intended to establish any other type of relationship between the Parties. In particular, nothing in this Agreement will give either Party authority to represent the other Party in any capacity, or to incur any liability or obligation on behalf of the other Party.
• Compliance with laws. The Parties will comply with the laws of any country that applies to them in the performance of their respective obligations under this Agreement, and nothing in this Agreement is intended to induce or oblige them to disobey any such law.
• Continuing obligations. The following obligations will continue in operation after the expiry or termination of this Agreement and will continue to be binding on the Parties, namely: all warranties, indemnities, payment obligations, confidentiality obligations, releases, and disclaimers, and clauses 3.3; 5; 8; 9, 10, 11; and 12.
LAST UPDATED: 02/05/2014