Full Terms of Service

Operative provisions

1. Definitions and interpretation

Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Agreement means this services agreement located at https://safesprouts.com.au/terms-conditions, our privacy policy located at https://safesprouts.com.au/privacy-policy, our website terms of use agreement located at https://safesprouts.com.au/website-terms, our returns policy located at https://safesprouts.com.au/returns-policy, all of which are to be read in conjunction with any other applicable terms and conditions governing the use of this website and the provision of any services and or goods by us at to you from time to time, the preceding of which must agree to prior to any services or goods being delivered by us to you.
Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Adelaide, South Australia are open for business.
Charges means Fees and Expenses.
Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise; whether direct or indirect;
Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
- any information that is specifically designated by any of them as confidential;
- any information which, by its nature, may reasonably be regarded as confidential;
- any information relating to any:
  - agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
  - customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
  - Intellectual Property Rights,

of any of them; and

any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;
negotiations in relation to, and the terms of, this agreement,

whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible or any other form, relating to the Company or any Related Entity of the Company including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.
Copyright Act means the Copyright Act 1968 (Cth).
Corporations Act means the Corporations Act 2001 (Cth).
Deposit has the meaning given in clause 1.
Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.
Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.
Engagement has the meaning given in clause 1, being each individual engagement for the Company to provide specific Services and/or Goods to the Recipient pursuant to a Quote.
Equipment means the equipment used or supplied by the Company or the Company’s representative for the purposes of providing the Services and/or Goods.
Event of Default means any of the following on the part of a party:
- committing any material or persistent breach of this agreement;
- repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
- if the Recipient is a company, undergoing a Change of Control without the prior written consent of the Company;
- misleading the Company in any material way; and/or
- an Insolvency Event occurring in respect of the Recipient.
Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Recipient pursuant to clause 5.
Fees has the meaning given in clause 1.
Fixed Price means, in respect of a particular Engagement, the price (exclusive of GST) specified in the relevant Quote for all of the Goods and/or Services.
Goods means the goods and products provided by the Company to the Recipient under this agreement in respect of each transaction, incorporated in an Engagement or as set out in the relevant Quote.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST has the same meaning given to that expression in the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
GST Law has the same meaning given to that expression in the GST Act.
Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.
Insolvency Event means, in respect of a party any of the following events or any analogous event:
- where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
- where the party is a company, a resolution is passed, or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
- a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
- the party is otherwise unable to pay its debts as and when they fall due.
- an application made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, unless the application is withdrawn, struck out or dismissed within 7 days of it being made;
- the appointment of a liquidator or provisional liquidator;
- the appointment of an administrator or a controller to any of its assets;
- that party or its holding company enters into an arrangement or composition with one or more of its creditors, or enters into an assignment for the benefit of one or more of its creditors;
- that party proposes a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors, or its winding-up or dissolution;
- that party is insolvent as disclosed in its accounts or otherwise states that it is insolvent, or is presumed to be insolvent, under an applicable law;
- that party becomes an insolvent or under administration, or action is taken which could result in such event;
- that party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
- a notice is issued under section 601AA or 601AB of the Corporations Act;
- a writ of execution is levied against that party or its property;
- that party ceases to carry on business or threatens to do so; or
- anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above clauses of this definition.
Input Tax Credit has the meaning given in the GST Law.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:

liabilities on account of Tax;
interest and other amounts payable to third parties;
legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and
all amounts paid in settlement of any Claim.

Material means any data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings, photographs or any other material.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.

Notice means any notice or other communication by one party to the other party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval.

Personal Information has the meaning given in the Privacy Act.

Privacy Act means the Privacy Act 1998 (Cth).
Quote means, in respect of a particular Engagement, the document setting out the scope of the Goods and/or Services for that Engagement as provided by the Company to the Recipient and accepted by the parties in accordance with this agreement and may also be taken to constitute any information provided on our website located at https://safesprouts.com.au offering services or goods for sale including but not limited to workshops, access to online memberships including courses and education materials and the provision of goods from time to time.
Recipient means the recipient of the Services and or Goods as named in the Quote or relevant invoice.
Related Entity has the meaning set out in the Corporations Act 2001 (Cth).
Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Goods and/or Services and/or Company’s engagement with the Recipient, including any Intellectual Property Rights so made, developed or conceived:
- using the premises, resources or facilities of the Recipient or any of its customers, clients or suppliers;
- in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Recipient under this agreement or otherwise;
- as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Recipient or any of its customers, clients or suppliers; or
- in respect of any of the products or services of the Recipient or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Representatives means, in respect of a person, the employees, officers, Companys, agents and professional advisers of that person.
Services means the services provided by the Company to the Recipient under this agreement in respect of each Engagement, as set out in the relevant Quote.

Start Date means the date of this Agreement or such other date as the parties may agree in writing which shall be taken in respect of any orders placed on the Company’s website to be the time in which the Company confirms receipt of payment or otherwise provides confirmation to the Recipient from time to time.

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
Tax or Taxation means:
- any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
- unless the context otherwise requires, GST; and
- any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.

Interpretation

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;

(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;

(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;

(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(i) a reference to writing includes any communication sent by post, facsimile or email;

(j) a reference to time refers to time in Adelaide, South Australia and time is of the essence;

(k) all monetary amounts are in Australian currency;

(l) a reference to a “liability” includes a present, prospective, future or contingent liability;

(m) the word “month” means calendar month and the word “year” means 12 calendar months;

(n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;

(p) a reference to any thing is a reference to the whole and each part of it;

(q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(r) words in the singular include the plural and vice versa; and

(s) a reference to one gender includes a reference to the other genders.

2. Engagement as Company for its Services

Engagement

2.1 The Recipient engages the Company to provide the Services to the Recipient, and the Company hereby accepts that engagement and agrees to provide the Services to the Recipient, in accordance with the terms of this Agreement.

Non exclusivity

2.2 The Company may at any time engage any third party, or use any member of the Company’s staff, to provide goods and/or services similar or identical to the Goods and Services.

2.3 Subject to the Company’s obligations under this agreement and not withstanding any conflict with any third party of the Recipient, the Company may provide goods and services similar to the Goods and Services to any other person during the term.

Commencement and duration

2.4 In respect of the Company’s provision of Services, the Company’s engagement with the Recipient will:

(a) commence on the Start Date; and

(b) continue for the duration in which the Company provides its Services to the Recipient.

2.5 This agreement may be extended and varied in writing on such terms and conditions as agreed between the parties.

2.6 The Company’s engagement with the Recipient for the purchase of individual Goods is otherwise of a once-off transactional nature.

Nature of relationship

2.7 The Company is an independent contractor of the Recipient and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties. The Company does not have, and will not hold out the Recipient as having, any authority to bind the Recipient in any matter including but not limited to any contracts, commitments, expenses, liabilities or obligations of any nature.

3. Provision of the Goods and Services

Quote

3.1 In respect of each individual engagement for the Company to provide Services to the Recipient under this agreement (each an Engagement) and/or purchase of Goods on the Company’s website, the Recipient must pay the fee on the Company’s website or a Quote. The Company’s obligation to provide the Goods and/or Services as the case may) that are the subject of each Engagement does not arise unless and until the Company receives payment from Recipient's in clear funds in the Company’s bank account or otherwise receives confirmation of payment.

Standards and duties

3.2 The Company must, in providing the Goods and Services, comply with the standards, duties and obligations set out in Schedule 1.

4. Pricing and invoicing

Pricing

4.1 Subject to clause 3.1, in respect of each Service Engagement, the parties have agreed that the total price for the relevant Services (inclusive of GST but exclusive of Expenses, and including a Deposit where relevant) (the Fees) will be as listed on the Company’s website from time to time or, if as designated in the relevant Quote:

(a) (Fixed Price) a Fixed Price applies – that Fixed Price payable in advance. The Company will invoice the Recipient for all relevant Charges upon the commencement of each Phase; and

(b) (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Company in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.2 and payable in arrears (subject to clause 4.1(b)(i)) upon completion of the Services to the reasonable satisfaction of the Recipient. The Company will invoice the Recipient by way of a single invoice for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Recipient, provided that if, as designated in the relevant Quote, a deposit is specified (the Deposit):

(i) the Deposit will be payable upon commencement of the Services. The Company will invoice the Recipient for the Deposit at any time, but not less than 7 days, prior to commencement of the Services and the Recipient must pay the Deposit prior to the commencement of the Services; and

(ii) the balance of all relevant Charges will be payable in arrears upon completion of the Services to the reasonable satisfaction of the Recipient. The Company will invoice the Recipient for that balance following completion of all relevant work to the reasonable satisfaction of the Recipient.

Hourly Rates

4.2 Hourly Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15 minute units, with 4 units per hour – eg, the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units.

4.3 The Company must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate applies and provide the Recipient with a copy of such records upon reasonable notice as may be requested by the Recipient from time to time.

4.4 The Hourly Rate may only be changed by way of an amendment to this agreement pursuant to clause 14.8.

Reimbursement of Expenses

4.5 The Recipient will pay all reasonable expenses properly and necessarily incurred by the Company in the course of providing the Services, provided that:

(a) the Company:

(i) obtains the Recipient’s written consent before incurring the expenses;

(ii) provides the Recipient with acceptable documentation for the expenses incurred; and

(iii) complies with any applicable expenses policy of the Recipient in force from time to time, provided that a copy of the policy has been provided to the Company by the Recipient prior to the relevant expense being incurred.

5. Payment

Timing of payments

5.1 The Deposit (if any) is payable in accordance with the provisions of clause 4.

5.2 The Recipient must pay to the Company all other Charges properly invoiced or listed on the Company’s website pursuant to clause 4 in full upfront or otherwise on or before the date that is 7 days after the Recipient’s receipt of the relevant invoice.

5.3 The Recipient’s booking or order will not be binding until the Company has received payment in full from the Recipient and a written confirmation has been received by the Recipient confirming that the relevant Goods have been dispatched and/or that the purchase of the Services have been accepted by the Company.

Method of payment

5.4 All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash or by way of bank cheque or electronic funds transfer or by way via the Company’s online payment processing portal in accordance into the account nominated by the other party.

No set-off or deduction

5.5 Unless otherwise agreed in writing and subject to clause 5.4, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.

5.6 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

6. GST

Definitions regarding GST

6.1 In this clause 6:

(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6.

Receiving Party to pay additional amount

6.2 If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply. This is subject to receiving a valid invoice before payment in accordance with these terms.

Fines, penalties and interest

6.3 The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.

Reimbursement

6.4 If a party must pay, reimburse, or indemnify another for a cost, the reimbursable amount is reduced by the Input Tax Credit the other party can claim.

Adjustment events

6.5 If an adjustment event occurs for a supply under this agreement, a corresponding adjustment is made between the parties. Payments to address the adjustment are made, and the Providing Party issues an adjustment note.

7. Confidentiality

7.1 Subject to clauses 7.3 and 7.4, a Disclosee must:

(a) keep all Confidential Information confidential;

(b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;

(d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and

(e) ensure that any and all Authorised Third Party Disclosees:

(i) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and

(ii) do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.

7.2 The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.

Exceptions

7.3 The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

7.4 Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):

(a) was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:

(i) unlawfully obtained by the Disclosee, whether from a third party or otherwise; or

(ii) received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;

(b) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:

(i) in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 7.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or

(ii) that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;

(c) is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;

(d) is required by law or court order to be disclosed, provided that the Disclosee must:

(i) promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and

(ii) reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;

(e) is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or

(f) is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.

7.5 The exceptions in clause 7.4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.

8. Non-disparagement

8.1 Subject to clause 8.2, on and from the date of this agreement, each party must not:

(a) make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or

(b) cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,

and must take all reasonable steps to prevent its Representatives from doing so.

8.2 Clause 8.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:

(a) promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and

(b) reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

9. Intellectual Property

9.1 The parties agree that all Relevant IP will be owned by, and vest in, the Company.

Assignment

9.2 The Recipient hereby assigns, transfers and conveys to the Company all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Company on and from creation.

Recipient’s duty to assist the Company

9.3 The Recipient must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Company’s title to any Relevant IP, in Australia or in such other countries as the Company may require at its discretion.

Permitted use

9.4 The Recipient may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Company or any of the Company’s customers, clients or suppliers without the Company’s prior written approval, except in the performance of its duties under this agreement.

Moral rights

9.5 The Recipient consents to the doing of any acts, or making of any omissions, by the Company or any of the Company's employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:

(a) not naming the Recipient as the author of a Work; or

(b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Recipient is not named as the author of the amended or modified Work,

whether those acts or omissions occur before, on or after the date of this agreement. The Recipient acknowledges that its consent pursuant to this clause 9.5 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.

Marketing

9.6 The Company may, from time to time, take photographs during the provision of any Services and such images may be utilised by the Company on its website, social media platforms, and other marketing materials mentioning the Recipient, subject to receiving consent from the Recipient.

10. Liability and remedies

Indemnity

10.1 The Recipient irrevocably indemnifies and covenants to hold the Company harmless from and against all Losses that may be suffered by the Company which arise in connection with any breach of this Agreement by the Recipient and/or any negligent or other tortious conduct of the Recipient.

Indemnities continuing

10.2 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

10.3 To the maximum extent permitted by law and without prejudice to any of the Company’s other rights and entitlements under this Agreement (including but not limited to the Company’s privacy policy, website terms of use, disclaimers, returns policy or such other agreements that the Recipient is required to agree to from time to time before placing an order on the Company’s website), the Company and its Representatives expressly:

(a) (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:

(i) the Recipient will achieve any particular results from the provision of the Services and/or Goods;

(ii) any particular individuals will perform the Services and/or Goods on behalf of the Company;

the Services and/or Goods will be:

(A) error-free or that errors or defects will be corrected;

(B) accurate, complete or up-to-date; or

(b) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Recipient and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services and Services to the following remedies (the choice of which is to be at the Company's sole discretion):

(i) re-supply of the Services and/or Goods;

(ii) payment of the costs of supply of the Services and/or Goods by a third party; or

(iii) the refund of any amounts paid by the Recipient to the Company under this agreement in respect to the Services and/or Goods,

even if the Company has been advised of the possibility of such Losses,

and the Recipient acknowledges and agrees that the Company holds the benefit of this clause 10.3 for itself and as agent and trustee for and on behalf of each of its Representatives.

Force majeure

10.4 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company. The Recipient acknowledges and agrees that the Company holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

10.5 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality) or clause 8 (Non-disparagement), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.

11. Warranties

The Customer’s Warranties

11.1 By accepting this Agreement, the Customer warrants that:

(a) they have not relied on any representations or warranties made by the Provider in relation to the Goods and Services, unless expressly provided for in this Agreement;

(b) the Goods and/or Services have been purchased solely for the Customer’s benefit and the Customer will not disclose or provide access to the online Goods or Services to any third-party without the Company’s prior written consent;

(c) they have all hardware, software, licences and services which are necessary to access any online Goods and/or Services, including any required operating systems, and of which will be at the Customer’s own expense;

(d) they understand that all information provided through the Goods and/or Services offered by the Company is of a general and educational nature only and the Customer will not rely on any part of it whatsoever;

(e) they are wholly responsible for their own actions and outcomes, and any actions taken by the Customer in relation to their personal circumstances;

(f) use of the information in the Goods and Services is entirely at the Customer’s own risk;

(g) it is their sole responsibility to seek and obtain medical or professional assistance having regard to the Customer’s personal circumstances and real life situation prior to making any decisions or taking any action which may affect those circumstances or any third party; and

(h) that all information provided by the Customer to the Company including any information entered into any account profile for the purposes of making payment for the Goods and Services is true and not misleading and does not violate any applicable law or regulation, or any other person’s intellectual property or other rights.

12. Termination and Cancellation

Termination for breach

12.1 If a party commits any material or persistent breach of this agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing. If the Defaulting Party fails to remedy the breach within 20 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate this agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.

Cancellation Policy

12.2 Subject to the Company’s Refunds Policy, the Company will not accept a cancellation of any Goods purchased online through the Provider’s website by the Recipient.

12.3 If the Company is required to cancel any order for any Goods or Services, the Company will refund all amounts paid by the Recipient, without any further liability to the Recipient.

12.4 If the Recipient wishes to cancel a Service that has been privately offered by the Company to the Recipient, the Recipient must provide the Company with a minimum of fifteen (15) days’ written notice. The Company will use its reasonable endeavours to reschedule the Recipient’s booking, however, the Company cannot guarantee that the Company can re-schedule or postpone any Service booking to the Recipient’s next preferred date and time.

12.5 The Company will not accept any requests for a cancellation of a privately offered Service within fourteen (14) days of the relevant Service workshop, event or session.

12.6 If the Recipient wishes to cancel a Service that it is offering to the general public, the Recipient must provide a minimum of seven (7) days’ written notice. A refund or re-booking of the Service may be offered at the Company’s discretion.

12.7 All fees paid or payable to the Company will be wholly forfeited by the Recipient in the event of a cancellation of the Company’s privately offered Services within fourteen (14) days, and within seven (7) days for publicly offered Services.

12.8 In the event of any termination of this agreement in all other circumstances:

(a) the Recipient will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and

(b) the Company will send to the Recipient a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect thereof.

12.9 The Recipient acknowledges that the Company may charge reasonable fees and expenses incurred by the Company to postpone, reschedule and/or cancel any Service booking, and which fees will be considered a genuine pre-estimate of loss incurred by the Company as a result of changing, varying or cancelling this Agreement without sufficient notice.

12.10 The Recipient is otherwise responsible for any and all Losses incurred by the Recipient as a direct result of any cancellation.

Accrued rights

12.11 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

12.12 The obligations of the parties under clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies) and this clause 11 will survive the termination of this agreement.

13. Notices

13.1 A Notice given to a party under this agreement must be:

(a) in writing in English;

(b) sent to the address, fax number or email address of the relevant party as the relevant party may notify to the other party from time to time; and

(i) personally;

(ii) by commercial courier;

(iii) by pre-paid post;

(iv) if the notice is to be served by post outside the country from which it is sent, by airmail; or

(v) by e-mail.

13.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;

(d) if sent by airmail, five days after the date of posting; or

(e) if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

13.3 To prove service, it is sufficient to prove that:

(a) in the case of post – that the envelope containing the notice was properly addressed and posted;

(b) in the case of fax – the notice was transmitted to the fax number of the party; and

14. General

Further assurances

14.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Third parties

14.2 This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Costs

14.3 All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.

Entire agreement

14.4 This Agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations, obligations or other terms, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

14.5 If a provision or the application of a provision of this agreement is invalid, prohibited, void, illegal or unenforceable in a jurisdiction:

(a) it is to be read down or severed or be ineffective in that jurisdiction to the extent of the prohibition, invalidity voidness, illegality or unenforceability; and

(b) this will not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

14.6 Any waiver of a right under this agreement must be in writing and signed by the party granting the waiver.

14.7 No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Amendment

14.8 This agreement must not be varied except by written instrument executed by all of the parties.

Assignment

14.9 A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

Counterparts

14.10 This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

Electronic exchange

14.11 Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

14.12 If a party delivers an executed counterpart of this agreement under clause 14.11:

(a) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and

(b) in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.

Governing law and jurisdiction

14.13 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of South Australia, Australia.

14.14 The parties irrevocably agree that the courts of South Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

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Schedule 1 | Standard duties and obligations

The Company must, in providing the Goods and Services:

(Honesty and diligence) be honest and diligent and provide the Goods and Services to it to the best of its knowledge and abilities;
(Standards) at all times maintain reasonable ethical, professional and technical standards;
(Discrimination and harassment) not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person; and
(Privacy) in relation to any Personal Information of any customer, client, supplier or Representative of the Recipient, any user or prospective user or any other person, comply with:
- the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner; and
- any approved privacy policy and procedures adopted from time to time by the Recipient.

Full Terms of Service

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