SERVICES AGREEMENT.
TERMS AND CONDITIONS.
HELLO AGILITY PTY LTD.
0. FOR ORGANISATIONS.
Refer to the Services Agreement Terms and Conditions (for Organisations) rather than the below if you are engaging on behalf of an organisation.
1. DEFINITIONS.
In this Document, unless the context otherwise requires, capitalised terms have the meaning given to them in the Proposal, within this Document, and:
Confidential Information includes information of a confidential nature which:
(a) a Party (including any Worker) or a third party discloses in connection with this Document at any time (including at any event held by us);
(b) is prepared or produced under or in connection with this Document at any time;
(c) relates to a Party’s confidential business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Document (including any information disclosed to us by any Worker),
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever a Party receives that information.
Document means the Proposal, these terms and conditions, and any documents attached to, or referred to in them.
Intellectual Property means any:
(a) copyright;
(b) registered or unregistered design, patent or trade mark rights;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets or Confidential Information;
(e) circuit layouts, databases or source codes; or
(f) similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Party means a Party to this Document, and Parties means both of them.
Personal Information has the meaning given in the Privacy Act 1988 (Cth), and may include sensitive information.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents (including, in respect of you, the Worker).
Term means the period commencing on the Effective Date and ending on the date the Services are completed in accordance with this Document.
Worker means any of your Personnel, being the subject of Services that are related to mentoring or coaching of that particular Personnel.
2. COMMENCEMENT.
(a) You will have accepted this Document by completing one of the following:
signing this Document;
confirming your acceptance of this Document (whether in writing or orally);
instructing us (whether in writing or orally) to proceed with the provision of the Services; or
paying any part of the Price.
(b) This Document takes effect on and from the date on which this Document is accepted in accordance with its terms (Effective Date) and will apply for the Term, unless terminated earlier in accordance with this Document.
(c) You may not make any cancellations after the Effective Date (other than in accordance with clause 8).
(d) Subject to the terms of this Document, we will proceed with the provision of the Services within a reasonable time after the Effective Date.
(e) You agree that any information provided as part of our Services is not an attempt to practice medicine, provide medical advice (including mental health advice), provide legal advice or provide financial advice. The Services should not be used as a substitute for professional diagnosis and treatment of mental health and it is not to be used or relied on by you (and/or any of your Workers) for any diagnostic or treatment purposes, nor should it be used as a substitute for professional legal or financial advice. You (and/or your Worker) are solely responsible for determining the suitability of any of the Services, and your (and/or your Worker’s) reliance on any information that is provided to you (and/or your Worker) through our Services are at your (and/or your Worker’s) own risk.
3. OUR OBLIGATIONS.
(a) In consideration of you paying us the Price, we will provide the Services to you in accordance with this Document, whether ourselves or through our Personnel.
(b) If this Document expresses a time within which the Services are to be provided, you acknowledge and agree that any such time is an estimate only and creates no obligation on us to provide the Service by that time.
(c) You may request a change to the Services by providing written notice to us (Variation Request). We will discuss the Variation Request with you and may agree (in writing) to the change, together with any adjustment to the Price (if required). If we consider that an instruction or direction given by you constitutes a Variation Request, we will not be obliged to comply with the instruction or direction.
(d) If there is a problem with the Services which is caused by a breach of this Document by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our absolute discretion, refunding you that portion of the Price paid by you with respect to the Omission.
4. YOUR OBLIGATIONS.
(a) You must comply with this Document and all of our reasonable requests or requirements (including any request for feedback).
(b) You must obtain, and provide to us (or ensure that your Personnel obtain and provide to us), all things reasonably necessary to enable us to provide the Services, including any access to premises, or information that may affect the provision or nature of the Services, including any relevant mental health information of you or your Personnel.
(c) You acknowledge and agree (if applicable):
to provide the Worker with reasonable time and resources to enable us to provide the Services;
that the Worker is fully responsible for making its own decisions arising out of our provision of the Services; and
you agree to contact us in writing (including by email) immediately if you would like to reschedule any date for the provision of the Services (or any part of the Services). If you contact us to reschedule any date, we will use our reasonable endeavours to cater to your requests (but are under no obligations to do so).
(d) Subject to our obligations under clause 5, we may record audio or video, take photos, create case studies or retain materials created in our provision of the Services, or you may provide us with audio, video, photos or testimonials that you have created in connection with the Services. You consent to us publishing such audio, videos, photos, case studies, testimonials or materials for the promotion or operation of our business. Subject to your written consent, we may include details of your (or your Personnel’s) name (including any business name or logo).
(e) You must pay us the Price, all disbursements (including travel and accommodation costs and third party costs incurred by us in the provision of the Services), and any other amounts payable to us under this Document in accordance with the Payment Terms.
(f) If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion) immediately cease providing the Services, charge you interest (at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 10% per annum, calculated daily and compounding monthly) and/or engage debt collection services.
5. CONFIDENTIAL AND PERSONAL INFORMATION.
(a) Both Parties will (and will ensure its Personnel) keep confidential, and not use or permit any unauthorised use of, any Confidential Information without the other Party’s prior written consent, except where:
the disclosure is required by law; or
(for Confidential Information received by us from you or your Personnel) in our reasonable view, such Confidential Information is considered to be a threat of harm to you (or your Personnel) or any third party.
(b) You acknowledge and agree that:
we are prevented from disclosing Confidential Information received from any Worker, to you, unless required under this clause 5;
we may disclose Confidential Information and/or Personal Information if the disclosure is to a third party who assists us in providing the Services to you (including any coaching supervisors or regulatory or professional authorities); and
we may disclose Personal Information (including, but not limited to, you or your Personnel’s name, phone number, email, details of Services received by you or your Personnel) to an accrediting body for the sole purpose of us obtaining any relevant accreditation and you consent (and will ensure that you receive your Personnel’s consent) to such use of your (or your Personnel’s) Personal Information.
6. INTELLECTUAL PROPERTY.
(a) As between the Parties, all Intellectual Property developed, adapted, modified or created either before or after the Effective Date
by or on behalf of us (or our Personnel), will at all times vest, or remain vested, in us;
by or on behalf of you (or your Personnel), will at all times vest, or remain vested, in you; and
in collaboration between the Parties (including the Parties’ Personnel) will at all times vest, or remain vested in, us.
(b) We grant you (including any relevant Personnel) a royalty-free, conditional and revocable licence to use our Intellectual Property for the sole purpose of obtaining the benefit of the Services. You agree (and you agree to ensure that your Personnel agrees not to) breach or infringe our Intellectual Property rights, including, but not limited to, allowing our Intellectual Property to be used by any third party or using our Intellectual Property for commercial purposes.
(c) You grant us a royalty-free, world-wide, transferable and revocable licence to use, develop, adapt and modify (Use) all Intellectual Property provided by you to us, for the sole purposes of us performing our obligations under this Document.
(d) You must ensure that the provision of any Intellectual Property to us does not infringe any Intellectual Property rights of third parties and that you have all the necessary rights to provide the Intellectual Property to us.
(e) If you or any of your Personnel have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any material provided, used or prepared in connection with this Document, you must (and must ensure that your Personnel) consent to the use or infringement of those Moral Rights in accordance with this Document.
(f) This clause 6 will survive the termination or expiry of this Document.
7. LIMITATIONS.
Despite anything to the contrary, to the maximum extent permitted by law:
(a) you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Effective Date;
(b) you agree that this Document excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Document;
(c) we will have no Liability to you for the loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
(d) our maximum aggregate Liability arising from or in connection with this Document will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim;
(e) we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:
event or circumstances beyond our reasonable control;
acts or omissions of you or your Personnel;
defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or
third party Intellectual Property claims in relation to the Intellectual Property (including information, images, artwork or other documents) that you have provided to us under this Document;
(f) you will indemnify us for and against all Liability arising from or in connection with any wrongful act or omission by you or your Personnel; and
(g) (for USA/Canada) we will have no Liability, and you waive, release, discharge and agree to hold us harmless for and against, all Liability, arising from or in connection with any act, error or omission in our performance of the Services.
8. TERMINATION.
(a) This Document will terminate upon written notice by:
either Party, if mutually agreed in writing between the Parties;
us, if you breach this Document and that breach has not been remedied within five working days of being notified by us; or
us, if in our reasonable opinion, our relationship with you (or any Personnel) has irretrievably broken down so that the provision of the Services if futile;
us, if the Worker ceases to be an employee, agent or contractor of you; or
us, if in our reasonable opinion, we are unable to perform the Services to the best of our ability, including if we are not qualified or do not have adequate training to provide the relevant Services;
you, if we breach a material term of this Document and that breach has not been remedied or overcome within 15 working days of being notified by you.
(b) On termination of this Document, you will:
where this Document is terminated under clauses 8(a)2 to 8(a)4, immediately pay to us the Price and all other amounts due and payable to us under this Document and all of our additional costs resulting from the termination;
where this Document is terminated under clause 8(a)1, 8(a)5 or 8(a)6 immediately pay to us the Price for the Services performed up to the date of termination and all other amounts due and payable to us under this Document;
(and we will) immediately return to the other Party all property, including Confidential Information and Intellectual Property, belonging to the other Party (or the other Party’s Personnel), unless otherwise agreed between the Parties.
(c) Termination of this Document will not affect any rights or liabilities which a Party has accrued under it.
9. GENERAL.
(a) Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Document (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute (unless that Party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause). If the Parties do not resolve the Dispute or decide on an alternate method for dispute resolution, the Dispute may be referred by either Party (by notice in writing to the other Party) to litigation (if both Parties sit within the jurisdiction of Australia) or arbitration in accordance with the arbitration rules of the Australian Centre for International Commercial Arbitration (if only we sit within the jurisdiction of Australia and the other Party sits outside the jurisdiction of Australia). The seat of arbitration shall be Sydney, Australia. The language of arbitration shall be English. The number of arbitrators shall be one.
(b) Notices: Any notice given under this Document must be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
(c) Relationship of Parties: This Document is not intended to create a partnership, joint venture or agency relationship between the Parties.
(d) Severance: If a provision of this Document is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Document without affecting the validity or enforceability of the remainder of that provision or the other provisions of this Document.
(e) Entire agreement: This Document contains the entire understanding and agreement between the Parties in respect of its subject matter.
(f) Amendment: This Document may only be amended by written instrument executed by all Parties.
(g) Survival: Clauses 3(d), 5, 6, 7, and 9 survive termination of this Document.
(h) Governing law: This Document is governed by the laws of New South Wales, Australia.
LAST UPDATED.
31 May 2020.