“Agreement” means this agreement between the Client and Get Performing for the provision of Services;
“Client” means the person or body named as the Client on the execution page of this Agreement;
“Intellectual Property” means all copyright and neighbouring rights, all rights in relation to inventions (including patents), registered and unregistered trademarks, registered designs, confidential information (including trade secrets and know-how) and circuit layouts and all rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields; and
“Services” means the Coaching Services but these services are in no way to be construed as psychological counselling or any type of therapy or financial advice.
This Agreement shall be governed by the laws of the state of New South Wales, Australia.
Get Performing shall:
Perform the Services with the degree of skill, care and diligence normally exercised by members of the coaching profession engaged in the provision of similar services at the time of engagement;
Provide the Services in accordance with all reasonable directions of the Client;
Perform coaching services and produce programs and/or other material under this Agreement for the sole use of the Client. Get Performing undertakes no duty to, nor accepts any responsibility for any other party;
Maintain current relevant insurances until the completion of the Services or other future date agreed in writing the Client;
Communicate by way of face to face sessions, phone, skype or email coaching whichever is practical for the client and coach.
Get Performing shall keep all information and material provided by the client strictly confidential and shall ensure that all discussions with the client are kept strictly confidential, unless disclosure is agreed to by the other party except insofar as such information becomes public knowledge.
The client shall:
Provide to Get Performing all necessary information required in a timely manner to facilitate the provision of Services;
Complete any profile questionnaire;
Advise Get Performing of any changes or variations.
The Client agrees to pay Get Preforming fees in respect of the Services (Fees) within the payment terms agreed and set out on page one (Payment Terms);
Get Preforming shall provide a valid tax invoice; and
If the Fees are not paid within the Payment Terms, then:
If Upfront, Get Preforming has no obligation to perform the Services;
If by way of Invoice, Get Performing may charge interest on any outstanding amount at the rate specified by Section 2 of the Penalty Interest Rates Act 1983 (Vic) from time to time. Interest will accrue from the expiry of the Payment Terms until the date of payment.
The Client agrees to pay to Get Performing any costs (including legal costs on a solicitor/own client basis), charges, expenses or outgoings incurred in relation to the recovery of the outstanding amount; and
The client shall note:
They must provide 24 hours’ notice of cancellation of an appointment were that is to occur. Notice of less than 24 hours will incur full payment of session or otherwise agreed.
If Client is late for session, the session will not be extended and will end at the appointed time. If the coach is late, additional time will be added to session or subsequent sessions.
All individual services must be used within in a 90 day period or agreed time frame.
Get Performing may vary the Services by notifying the Client of necessary modifications to the Services or cost increases due to circumstances beyond the control of Get Perfoming, which may incur a reasonable adjustment to the fee and/or date for completion of the Services to reflect additional work or costs.
An amount equal to Goods and Services Tax will be added to all invoices as required by law.
In relation to this Agreement:
All Intellectual Property provided by Get Performing in relation to the Services remains the property of Get Performing. All Intellectual Property subsisting in or created pursuant to the Services vests in Get Performing as and when created;
Get Performing grants to the Client a non-exclusive royalty free licence to use all Intellectual Property subsisting in the Services subject to the payment to Get Performing of all monies owing under this Agreement;
This licence may be revoked if such payments are not made within 30 days of the due date for payment.
Get Performing will be liable to the Client for any loss or liability which the Client could not reasonably have avoided or mitigated and which the Client incurs as a direct result of:
fraud or bad faith,
deliberate or reckless disregard or neglect of any of Get Performing duties or functions under this Agreement by Get Performing’;
Except as expressly provided in clause 10.1 and despite any other provision of this Agreement or any duty of Get Performing to the Client implied by law (to the fullest extent possible) or custom, Get Performing is not liable to the client for any loss or liability whatever or however incurred or arising;
In particular and without prejudice to the generality of clause 10.2, Get Performing is not liable to the Client for any loss or liability which the Client incurs directly or indirectly as a result of:
any acts, omissions or defaults of parties engaged by the Client,
any variations to the Services without the prior written approval of Get Performing,
loss, damage or any claim caused or contributed to by the client or any other party,
loss of earnings, profit, interest, benefit or damages to the Client or any other party whether indirect, special or consequential.
The Client indemnifies Get Performing on demand against any third party claim, demand, action, damage, loss or expense incurred by Get Performing directly or indirectly arising out of the provision of the Services or its performance under this Agreement.
The maximum liability of Get Performing to the Client for any non-performance of the Services or any breach under this Agreement whether in contract or tort is limited to the lesser of the sum of $10,000 or the fee for Services payable under this Agreement.
In relation to this Agreement:
Get Performing gives no warranties, undertakings, inducements or representations whether express or implied in relation to the Services;
Where any statute implies in this Agreement any term, condition or warranty that the statute avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term condition or warranty shall be deemed to be included in the Agreement. However, liability to the Client for any breach of such term, condition or warranty shall be limited to the resupply of the Services.
This Agreement may be terminated, suspended or deferred but where the Client does so any monies not spent shall be refunded to the cleint less any reasonable expenses.
This Agreement may be terminated, suspended or deferred and if that occurs so all amounts owing wil be repaid.
This Agreement may be terminated by either party if:
A breach of any of the terms or conditions of the Agreement has occurred and has not been remedied within 7 days of receipt of a written notice requesting remedy of the breach;
Where not paid upfront but where services are performed and then invoiced, the payment of a Get Performing invoice is more than 14 days outstanding from the due date for payment;
The other party becomes insolvent or in the reasonable opinion of one party is unable to perform its obligations under this Agreement;
Issues outside the control of Get Performing preclude or prevent it from performing the Services.
Subject to the following clause, neither party may assign its interest in this Agreement without the prior written consent of the other.
Get Performing may subcontract for the performance of the whole or any part of this Agreement.
The Client appoints Get Performing as the Client’s agent in respect of work carried out by a Sub-Consultant and such agency relationship shall be disclosed to the Sub-Consultant.
The Sub-Consultant shall submit any invoices directly to Get Performing for work carried out on behalf of the Client. The Client acknowledges that Get Performing is not liable to pay the Sub-Consultant’s invoices for work carried out on behalf of the Client and that the Client is solely responsible for payment of such invoices.
The Client indemnifies Get Performing from and against any claims or demands suffered or incurred by Get Performing in respect of invoices rendered by the Sub-Consultant.
Without prejudice to a party’s right to seek urgent interlocutory relief, any dispute arising out of interpretation of or a party’s compliance with this Agreement will be referred by either party:
first, to a nominee of each party for mediation within 14 days of written notice identifying such dispute, and
secondly, failing resolution of the dispute under paragraph 18.1, to a mediator to be appointed by the Institute of Arbitrators and Mediators Australia to mediate the dispute and whose decision shall be binding on both parties.
Both parties shall be entitled to legal advice and representation in respect of the mediation under clause 18.2 and both parties will share the cost of the mediation under clause 18.2 equally.
Get Performing shall not be taken to have agreed to any amendment or waiver of any provision of this Agreement unless agreed to in writing.