SERVICES AGREEMENT.
TERMS AND CONDITIONS.
HELLO AGILITY PTY LTD.

1. DEFINITIONS AND INTERPRETATION.

1.1 Definitions

In this Document, unless the context otherwise requires, capitalised terms have the meaning given to them in the Proposal, and:

Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by us.

Australian Consumer Law means the consumer protection law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced, from time to time.

Business Day means a day on which banks are open for general banking business in New South Wales, Australia excluding Saturdays, Sundays and public holidays.

Confidential Information includes information or documentation of a confidential nature which:

(a) is disclosed by either Party (including any Worker) or a third party in connection with this Document (whether before or after the Effective Date), including any event held by us;

(b) is prepared or produced under or in connection with this Document (whether before or after the Effective Date); or

either Party’s confidential business, assets or affairs; or
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 whether it is disclosed to the other Party or received, acquired, overheard or learnt by the other Party in any way whatsoever.

Dispute has the meaning given in clause 7(a).

Dispute Notice has the meaning given in clause 7(b).

Document has the meaning given in the Proposal.

Effective Date means the earlier of the date on which this Document is:

(a) signed by each of the Parties, as set out in the Proposal; or

(b) otherwise accepted in accordance with its terms.

Intellectual Property means any:

(a) copyright;

(b) registered or unregistered design, patent or trade mark rights;

(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.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Omission has the meaning given in clause 3.3(a).

Party means a party to this Document, and Parties means all 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).

Proposal means the proposal to which these terms and conditions are attached.

Service Order means an order, agreed between the Parties, for us to provide the Services, as issued under clause 2(b). An example of the form of the Service Order is set out in Schedule 1.

Term means the period between the Effective Date and the date this Document is terminated in accordance with its terms.

Use has the meaning given in clause 5(c).

Variation Request has the meaning given in clause 3.2(a).

Worker means any of your Personnel, being the subject of Services that are related to mentoring or coaching of that particular Personnel.

1.2 Interpretation

In this Document, unless the context otherwise requires:

(a) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(b) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(c) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(d) a reference to a party to an instrument includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(e) a reference to this Document or any other instrument includes the instrument, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally;

(g) a reference to time is to local time in New South Wales, Australia; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.

2. COMMENCEMENT.

(a) This Document takes effect on and from the Effective Date and will apply for the Term.

(b) During the Term, we may perform Services under separate Service Orders (a form of which is set out in Schedule 1), as agreed in writing by both Parties. If there is any ambiguity, discrepancy or inconsistency between this Document or any Service Order, this Document will prevail.

(c) You acknowledge and agree that if payment of the Price or the relevant part thereof (as stipulated in the Proposal or any Service Order) is required prior to the provision of the Services, payment is a condition precedent to our provision of the Services.

3. OUR OBLIGATIONS.

3.1 Services

(a) In consideration of your payment of the Price, we will provide the Services in accordance with this Document (including any relevant Service Order), whether ourselves or by using 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 Services by that time.

(c) Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any works, services, goods, materials or items which:

do not form part of the Services, as expressed in the Proposal or any relevant Service Order; or
have not been provided by us.

This clause 3.1(c) will survive the termination of this Document.

(d) You agree that any information, insights or guidance 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. If you (and/or your Worker) suffer from any medical conditions, including any mental health conditions, or require legal or financial advice, it is your (and/or your Worker’s) responsibility to consult with a medical, legal or financial professional (as required) and in relation to medical professionals, to inform that medical professional of the Services.

3.2 Variations

(a) You may request a variation or change to the Services, by providing verbal or written notice to us, with details of the variation or change (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).

(b) If we consider that any instruction or direction given by you constitutes a Variation Request, we will not be obliged to comply with the instruction or direction until such time as the Parties have agreed to the Variation Request in writing, including on any adjustment to the Price which may be required.

3.3 Omissions

(a) If, within 24 hours after the completion of any relevant Services, you have notified us in writing of any fault or error in the Services, which is caused by a breach of this Document by us (Omission), we will, at our own cost:

remedy or resupply the relevant Services; or
if we are unable to remedy or resupply the relevant Services, offer you a choice of a credit or a refund with respect to that part of the Price applicable to the relevant Services.

(b) Despite anything to the contrary, to the maximum extent permitted by law, our aggregate Liability for any fault, error, omission or lack of suitability or benefit with respect to the Services will be limited to, and must not exceed, the costs we incur in complying with clause 3.3(a)(1) or 3.3(a)(2) (as applicable). This clause 3.3(b) will survive the termination of this Document.

(c) The Services may come with guarantees which cannot be excluded under the Australian Consumer Law. Nothing in this Document attempts to modify or exclude the conditions, warranties and undertakings, and any of your legal rights, under the Australian Consumer Law.

4. YOUR OBLIGATIONS.

4.1 General

(a) You agree to comply with, (and, if applicable, ensure that your Personnel comply with):

this Document;
our reasonable requests or requirements (including any requests for feedback); and
all laws.

(b) You agree to obtain, and provide to us (or ensure that your Personnel obtain and provide to us), any access, consents, approvals, licences and permissions reasonably necessary to enable us to provide the Services or information that may affect the provision or nature of the Services, including any relevant mental health information of you or your Personnel.

to provide the Worker with reasonable time and resources to fully participate in the Services;
that the Worker is fully responsible for creating and implementing its own decisions, choices, actions and results 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 request (but are under no obligation to do so).

4.2 Payment

(a) You agree to pay us:

the Price;
our reasonable disbursements, including travel and accommodation costs and third party costs, incurred by us for the purpose of the provision of the Services; and
any other amount payable to us under this Document, in accordance with the Payment Terms.

(b) If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

cease providing the Services, and recover as a debt due and immediately payable from you, our Additional Costs of doing so; and/or
charge 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 compounded monthly, on any such amounts unpaid after the due date.

4.3 Premises

You agree to provide us (and our Personnel) with access to the Premises (and the facilities at the Premises), free from harm or risk to health or safety, as may be reasonably necessary to enable us to comply with our obligations under this Document or at law.

4.4 Assistance

You agree to provide us with all assistance (including information or documentation) which we may reasonably request to enable us to comply with our obligations under this Document or at law.

4.5 Confidentiality and Personal Information

(a) Subject to clause 4.5(b), each Party must (and must ensure that its respective Personnel do):

keep confidential; and
not use or permit any unauthorised use of,

all Confidential Information.

(b) Clause 4.5(a) does not apply where:

the disclosure is required by law;
(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; or
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Document and provided that each Party ensures the adviser complies with the terms of clause 4.5(a).

in the provision of the Services, we may receive Confidential Information from a Worker and, pursuant to our obligations under clause 4.5(a), we are prevented from disclosing such Confidential Information to you unless required under clause 4.5;
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 (your Personnel’s) Personal Information.

4.6 Marketing and testimonials

Subject to our obligations under clause 4.5, we may record audio or video, take photos, create case studies or retain materials (including any feedback or reviews) created in our provision of the Services, or you may provide us with audio, videos, photos or testimonials (including any feedback or reviews) 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).

4.7 Warranty

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.

4.8 Survival

This clause 4 will survive the termination of this Document.

5. 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 not to (and you agree to ensure that your Personnel agrees not to) breach or infringe our Intellectual Property rights as set out in clauses 5(a)(1) or 5(a)(3), including, but not limited to, by:

altering or modifying our Intellectual Property;
creating derivative works from our Intellectual Property;
providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party (including your other Personnel); or
using our Intellectual Property for purposes other than as expressly stated in this Document (including, but not limited to, using the Intellectual Property for commercial purposes or on-selling the Intellectual Property to third parties).

(c) On and from the Effective Date, you grant us a royalty-free, world-wide, transferable and revocable licence to use, develop, adapt and modify (Use) such Intellectual Property owned by, or licenced to, you, to enable us to perform the Services and/or comply with our obligations under this Document. You agree to ensure that your Intellectual Property, and any such Use of your Intellectual Property, does not infringe any Intellectual Property rights of any person.

(d) If you or any of your Personnel has any Moral Rights in any material provided, used or prepared in connection with this Document, you agree to (and agree to ensure that your Personnel) consent to the use or infringement of those Moral Rights.

(e) To the maximum extent permitted by law, you indemnify, and agree to continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 5.

(f) This clause 5 will survive the termination of this Document.

6. LIMITATIONS.

(a) Despite anything to the contrary, to the maximum extent permitted by law:

our maximum aggregate Liability arising from or in connection with this Document (including the Services and/or the subject matter of this Document) will be limited to, and must not exceed, the Price paid by you to us for the Services under this Document; and
we will not be liable to you for any 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 of corruption of data,

whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

(b) Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:

loss of, or damage to, any property or any injury to, or death of, any person;
failure or delay in providing the Services; or
breach of this Document or any law,
where caused or contributed to by any:
event or circumstance beyond our reasonable control';
act or omission of you or your Personnel;
and, in any event, any 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.

(c) Despite anything to the contrary, to the maximum extent permitted by law, each Party’s Liability under or in connection with this Document will be reduced proportionately to represent the share of responsibility that the Party has for the Liability according to the extent to which the Party’s breach of any provision of this Document or the Party’s negligent or wrongful acts or omissions caused or contributed to the Liability in the course of performing its obligations under this Document.

(d) You agree that, to the maximum extent permitted by law, 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.

(f) This clause 6 will survive the termination or expiry of this Document.

7. DISPUTE RESOLUTION.

(a) A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Document (Dispute) without first complying with this clause 7 unless:

that Party is seeking urgent interlocutory relief; or
the Dispute relates to compliance with this clause.

(b) In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party setting out the details of the Dispute and proposing a resolution (Dispute Notice).

(c) Within five Business Days after receiving the Dispute Notice, the Parties must, by their senior executives or senior managers (who have the authority to reach a resolution on behalf of the Party), meet at least once to attempt to:

resolve the Dispute; or
agree on the method of resolving the Dispute by other means,

in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged.

(d) If the Parties do not:

resolve the Dispute; or
(if the Dispute is not resolved) agree on an alternate method to resolve the Dispute,

within 15 Business Days after receipt of the Dispute Notice, the Dispute may be referred by either Party (by notice in writing to the other Party) to litigation.

(e) Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Document.

(f) This clause 7 will survive the termination or expiry of this Document.

8. TERMINATION.

(a) We may terminate this Document by providing you with 20 Business Days’ written notice. The Parties acknowledge and agree that termination of this Document under this clause 8(a) will not affect any Service Order accepted under this Document. For the avoidance of doubt, we will continue to supply any Services the subject of any existing Service Order and the date of termination will be the date we complete the relevant Services.

(b) This Document will terminate immediately upon written notice by:

either Party, if mutually agreed in writing between the Parties;
either Party, if the other Party is or becomes insolvent, bankrupt or otherwise unable to pay its debts as and when they fall due;
us, if in our reasonable opinion, the Worker fails to reasonably participate in our provision of the Services or our relationship with you (or any Personnel) has irretrievably broken down so that the provision of the Services is futile;
us, if the Worker ceases to be an employee, agent or contractor of you;
us, if you are in breach of this Document and that breach has not been remedied within five Business Days of being notified by us; 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 are in breach of a material term of this Document and that breach has not been remedied or overcome within five Business Days of being notified by you.

(d) Upon termination of this Document, you will (and, if applicable, will ensure that your Personnel):

where this Document is terminated under clauses 8(b)(2) (if terminated by us) to 8(b)(5), pay:
(A) the Price (and all other amounts due and payable to us) in full; and
(B) all Additional Costs resulting from the termination of this Document,
to us as a debt due and immediately payable;
where this Document is terminated under clauses 8(a), 8(b)(1), 8(b)(2) (if terminated by you), 8(b)(6) or 8(b)(7), immediately pay the Price (on a pro rata basis, calculated having regard to the Services performed up to the date of termination) and all other amounts due and payable to us, as if an invoice had been issued by us to you under clause 4.2 on the date of termination;
(and we will) not disparage or otherwise make any unfavourable statements or comments regarding the other Party or its Personnel, either directly or by implication, verbally or in writing;
(and we will) immediately return to the other Party all property, including Confidential Information and Intellectual Property belonging to the other Party or its Personnel, in the Party’s or its Personnel’s possession, unless otherwise agreed between the Parties; and
(and we will) not use any Intellectual Property belonging to the other Party or its Personnel, unless otherwise agreed between the Parties.

This clause 8(d) will survive the termination or expiry of this Document.

9. GENERAL.

9.1 Representations

Each Party represents and warrants to the other Party that:

(a) it has full legal capacity and power to enter into this Document, to perform its obligations under this Document, to carry out the transactions contemplated by this Document, to own its property and assets and to carry on its business;

(b) it is solvent and able to pay its debts when they fall due;

(d) the execution and performance by it of this Document and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any instrument binding on it.

9.2 Notices

(a) A notice or other communication given under this Document must be:

in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.

(b) A Party’s notice details are set out in the Proposal. A Party may change its notice details by written notice to the other Parties.

when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.

9.3 Waiver

Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Document does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.

9.4 Powers, rights and remedies

Except as provided in this Document or permitted by law, the powers, rights and remedies of a Party under this Document are cumulative and in addition to any other powers, rights and remedies the Party may have.

9.5 Assignment

No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Document without the prior written consent of the other Party. Any purported dealing in breach of this clause 9.5 is of no force or effect.

9.6 Further assurance

Each Party agrees to promptly do all things and execute all further instruments necessary to give full force and effect to this Document and their obligations under it.

9.7 Relationship of Parties

This Document is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this Document gives a Party authority to bind the other Party in any way.

9.8 Severance

(a) If a provision of this Document is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.

(b) If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Document without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Document.

9.9 Entire agreement

This Document contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

9.10 Amendment

This Document may only be amended by written instrument executed by all Parties.

9.11 Counterparts

This Document may be executed in any number of counterparts that together will form one instrument.

9.12 Governing law and jurisdiction

This Document is governed by the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

LAST UPDATED.

8 January 2019.

SERVICES AGREEMENT.TERMS AND CONDITIONS.HELLO AGILITY PTY LTD.