COACHING, COURSE AND DIGITAL RESOURCE SERVICES AGREEMENT AND TERMS AND CONDITIONS

These Terms and Conditions govern the relationship between the parties. By clicking “accept” on the relevant Booking Page you agree to these Terms and Conditions and Agreement (‘the Terms’).

This Agreement is made between:
You are the Client (‘Client’), and your details are set out on the booking page of our website.
And:
Roslyn Thompson of Bright Yellow Door Pty Ltd as Trustee for Bright Yellow Door Trust trading as Cheerful Days Co. (ABN: 179 361 751 19), (‘Coach’)

SCHEDULE
Description of Services to be Provided
Roslyn Thompson offers online coaching, digital courses, on demand digital resources, over various periods as stated on the relevant information page of our website. You have engaged Roslyn Thompson to provide the ‘Services’ that you purchased through our booking page.

Minimum Term: Cancellation of Services
Roslyn Thompson will only provide you with a refund for the Services in the event she is unable to continue to provide the Services.

Minimum Notice Period: Rescheduling of Appointments
24 hours notice required

Payment Schedule
Roslyn Thompson agrees to provide the Services for You, for the Fee, Terms and where applicable on the date/s as set out on the booking information page of our website or calendar booking system. Unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are GST inclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.

You will either be granted immediate access to the Services, or where applicable Roslyn Thompson agrees to commence the Services on the Commencement Date, upon acceptance of these Terms and Conditions, and upon payment of the required Fee by You.

1 PURPOSE OF THIS AGREEMENT

1.1 The purpose of this document is to formalize agreement for the Services to be provided as listed in the Schedule on the terms set out in this Agreement (‘the Terms’).
1.2 The Client will be providing certain Confidential Information which is proprietary to the owner to enable the Coach to provide the Services, which the Coach agrees to keep confidential.
1.3 The Client agrees to make payment for the Services in accordance with and as agreed in the Schedule.
1.4 Any intellectual property which may be developed, written, designed, or provided during the performance of the Services will remain at all times with the Coach as proprietary property.
1.5 The terms of this Agreement outline and govern the parties arrangement for these Services as follows:

2 DEFINITIONS

2.1 ‘Confidential Information’ means any written or oral information that is provided by or disclosed directly or indirectly through any means that is not already in the public domain, and may include information about business structures, methods, procedures and personal information.
2.2 ‘Services’ means the services described in the Schedule.
2.3 ‘Materials’ means newsletters, reports, advertising, audio, promotional, literature, written documents, questionnaires, videos, specifications or other material which may be required to assist and enable the Services to be performed.

3 SERVICES

3.1 The Client appoints the Coach for the Services as specified in the Schedule to this Agreement. The Client accepts the Services and is bound by these Terms when the Client instructs the Coach to proceed, by making a payment, or by confirming acceptance via email or other written means.
3.2 The Coach agrees to provide the Services described in the Schedule in accordance with the Terms in this Agreement. The Coach agrees to provide these Services in a professional manner and in accordance with generally accepted industry practice and standards and will ensure any contractors or coaches or representatives that the Coach may employ from time to time will have the relevant qualifications and are under the same standards requirements.
3.3 Any specific terms and requirements relating to the Services required by the Client will be agreed in writing and notified to the Coach in advance.
3.4 Services may be provided face-to-face or via web-based means (such as Skype, Google Hangout or similar) or as otherwise agreed in the Schedule. The Client is responsible for ensuring they have the appropriate facilities available as agreed in the Schedule.
3.5 All sessions must be scheduled and agreed in advance by the Coach including any sessions which are rescheduled due to unavailability of either party. The Services are non-transferrable and apply only for and to the Client as agreed in this Agreement. At no time may they be transferred to any other third party, group or entity.
3.6 In the event that a Client is unable to attend or wishes to reschedule their appointment, a minimum notice period as specified in the Schedule is required to permit the Coach to offer this session time to another Client. Any sessions that are not notified to the Coach for cancellation or rescheduling prior to this notice period requirement may be forfeited and may not be rescheduled.
3.7 Both Parties agree that the Services will be provided online.

4 WARRANTIES AND REFUNDS

4.1 Legislation may confer certain rights, warranties and guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law (‘ACL’). At no time are these statutory rights sought to be excluded.
4.2 The Coach represents and warrants:
(a) in providing the Services, they will comply with all law and industry standards;
(b) the work performed to provide the Services will be done to a high standard in accordance with best practice; and
(c) the scope of the Services will be limited to the description provided in the Schedule unless otherwise agreed in writing from time to time. Similar or equivalent Services may be substituted from time to time if, in the sole opinion of the Coach, it would benefit the Client or be required to meet the terms of this Agreement.
4.3 The Client represents and warrants:
(a) they will provide all relevant information required for the Coach to carry out the Services in a timely manner; and
(b) they hold the relevant and required current insurances to protect the Coach (where relevant) including against any third party claims.
4.4 The Client acknowledges and agrees that:
(a) results of Services vary from individual to individual. For this reason, performance, progress and success of any particular Services is reliant on the Client and individual to meet their own requirements. The Coach cannot and does not guarantee any particular or any results and the Client is solely responsible for their progress. If any time during the Services the Client feels their progress is not as expected, it is the responsibility of the Client to advise the Coach immediately of any concerns in order to give the Coach an opportunity to address and assist. The Coach will use reasonable efforts to resolve the concerns, however at no time does the Coach guarantee or warrant any increase or altered progress or performance;
(b) as the Coach has blocked out specific time periods to provide the Services to the Client, any cancellation or termination and refund of Services would be to the detriment of the Coach. For this reason, there are no refunds for change of mind or similar. Refunds are granted in very limited circumstances and in the sole discretion of the Coach; and
(c) in addition, any delay or late attendance to any scheduled sessions by the Client will finish at the nominated and agreed original time in order to not disadvantage other Clients that may be scheduled after the Client session. All sessions must finish on time at the originally scheduled time unless otherwise agreed by the Client and Coach.

5 DISPUTES

5.1 If at any time any aspect of the Services are not reasonably acceptable to the Client, or both parties disagree on the quality, substance, or the parties disagree for any reason on the Services, the Client will immediately notify the Coach of any such reason, the specifics and will give a reasonable opportunity for the Coach to respond and address any concerns. Feedback and discussion are important to the sessions and provision of the Services and it is up to the Client to provide such feedback in order to give the Coach an opportunity to resolve any issue quickly and effectively.
5.2 If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both the Client and the Coach. At no time will any communications or discussions be made public, this includes but is not limited to any social media websites of either party. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
5.3 In the event of any dispute on the work, quality or ownership that cannot be resolved, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each of us agrees to pay our own costs.

6 RELATIONSHIP

6.1 The relationship under this Agreement is that of principal and independent contractor. This Agreement does not make either party a joint venturer, partner, employee or agent of the other. No act or omission of either party is to bind the other party except as expressly set out in this Agreement.

7 TERM AND OWNERSHIP OF INTELLECTUAL PROPERTY

7.1 This Agreement is for the period set out when making the booking on the booking page. All Services must be provided as set out and agreed in the booking page. In the event not all Services have been provided, the remainder will be forfeited by the Client unless otherwise agreed in writing. It is up to the Client to ensure they arrange and are available for all sessions and for the Services to be provided in full.
7.2 The confidentiality provisions survive the termination of this Agreement and remain until the Confidential Information becomes part of the public domain.
7.3 Materials and work may be provided to the Client from time to time during and to enable the provision of the Services. All materials and work is provided without warranties of any kind, both express and implied. Any designs, materials, analyses, processes, discussions and other intellectual property, both tangible and intangible, which is provided or may be developed as a result of or during the Services is and will remain the property of the Coach at all times. No materials may be reproduced or used for any purpose other than the personal private use of the Client. At no time may it be reproduced and provided to third parties without the express written permission of the Coach.
7.4 From time to time the Coach may use photos, videos, sound recordings and other sample images or content (together ‘Content’) taken from sessions, classes or functions that the Coach organizes. Some of this Content may be used for marketing, advertising and promotional business purposes and at no time will compensation be provided to the Client for any such use. By agreeing to these Terms, the Client hereby grants such release to the Coach to use such Content. If the Client does not wish to have their Content used, they must notify the Coach in writing of their request.

8 INFORMATION PROVIDED TO PERFORM THE SERVICES

8.1 The Coach agrees that they will: keep confidential and secure; not use directly or indirectly; and not disclose directly or indirectly, this Agreement and all personal information relating to, arising under or acquired under or as a consequence of this Agreement and the Services, except:
(a) as required by law or any regulatory authority; or
(b) with the Client’s express written consent.
8.2 The Coach will not at any time disclose or allow access by any person or third party to any of the Confidential Information unless required to perform the Services in which case, the Coach will ensure they are under the same duty of confidentiality as the Coach is under this Agreement.

9 PAYMENT, PRIVACY AND DELIVERY

9.1 Services will only be provided once payment has been made. In the event of any late, overdue or unpaid invoice amounts, they will incur interest at a rate determined in accordance with the Penalty Interest Rates Act 1983.
9.2 In the event that the Client fails to pay any invoices, fails to make any payments in accordance with the terms of the Agreement or does not perform its obligations under this Agreement, the Coach may refuse to continue to provide the Services and may terminate this Agreement immediately without notice. The Coach may also commence proceedings to collect any outstanding debts owed.
9.3 All payment and personal information will be kept in a secure manner in accordance with Australian privacy requirements. Please refer to the Coach’s Privacy Policy for details on how Client information will be kept secure.
9.4 By providing the Coach with your payment and credit card details, the Client authorizes payment for Services. In the event the Client has chosen payments to be made on a recurring basis, the Client hereby authorizes such payments to be deducted by the Coach until the full payment has been made under the Terms and in accordance with this Agreement.
9.5 Failure to make a required payment when due under this Agreement shall constitute a material default under this Agreement.
9.6 All sessions or Services are non-transferrable. In addition, no sessions may include or be attended by any third parties unless agreed in advance by both Client and Coach.

10 TERMINATION AND CANCELLATION

10.1 For any breach of any of the obligations of this Agreement, the person who has committed the breach will immediately remedy or rectify the breach promptly.
10.2 Termination may occur if the Coach believes that the working relationship has broken down including a loss of confidence and trust; or for any other reason outside their control which has the effect of compromising their ability to perform the Services. In the event of such termination by the Coach, payment must be made up to the date of the last Services and any other monies paid in advance will be refunded to the Client.
10.3 For any group courses or programs that may be offered from time to time, the Coach reserves the right to cancel the course or program in the event that less than a nominated minimum number of clients are registered. All monies and fees will be refunded in full.
10.4 In the event of any cancellation by the Client, full payment for the minimum term of the Services as agreed and nominated in the Schedule becomes immediately due and payable.
10.5 Confidentiality survives and continues in the event of any dispute or termination and, in any event, after the delivery of the Services.

11 LIMITATION OF LIABILITY AND INDEMNITY

11.1 The Coach and their representatives are in no way liable for any loss or damages whether direct, indirect or consequential which the Client may suffer in reliance directly or indirectly on all or any part of the Services. The Client shall indemnify and hold harmless the Coach from and against any and all actions, claims, liabilities, proceedings or demands which may be brought against them in respect of any loss, death, injury, illness or damage (whether personal or property and including reasonable legal fees and expenses).
11.2 The liability of the Coach is governed solely by the ACL and these Terms. Any other conditions and warranties which may be implied by custom, law or statute are expressly excluded.
11.3 The Client acknowledges and agrees that they use the Services at their own risk. In engaging the Services, the Client agrees they are liable for and agree to indemnify and hold the Coach harmless for and against any and all claims, liabilities, actions and expenses which may result either directly or indirectly from a breach of these Terms, misuse of the Services or in connection with any of the Services.
11.4 The Client agrees that some Services may involve health or other personal and well-being management discussions. The Services and information should not replace discussions with qualified suitable healthcare professionals where relevant to their condition and should not be used to diagnose or replace any professional treatment or management of any particular existing condition. All decisions about any treatment and management of any condition must be made with a relevant healthcare professional and the Client agrees and acknowledges that any reliance on any information, discussions or recommendations that may arise during the sessions, is done at their own risk. The Client is at all times responsible for their own physical health and emotional well-being. The Coach recommends that any pre-existing condition be treated by a suitable medical professional and that any information provided by the Services is not to be relied on in substitution.
11.5 In any case, the Coach’s liability is limited at all times to the amount of the last invoice paid by the Client.

12 GOVERNING LAW

12.1 This Agreement is governed by the laws from time to time in force in QLD. Both parties agree to unconditionally submit to the exclusive jurisdiction of these Courts for determining any dispute concerning this Agreement.