Terms of Business
The Bio Coach
Online Terms of Business
Parties
These Terms of Business are between Rota Holdings Pty Ltd as trustee for The Rota Trust T/A The Bio Coach (ABN 67 622 162 988) (“the Company”) and its Client, each time the Company provides Services to the Client.
Acceptance of Terms of Business
The Client agrees to be bound by these Terms of Business by accepting the Services.
Variation to Terms of Business
Any variation to these Terms of Business must be mutually agreed by both parties in writing.
Definitions
“Client” means any person or body to which The Company provides Services and any Client Related Entity.
“The Bio Coach IP” means Intellectual Property owned by The Bio Coach or licensed to the The Bio Coach.
“Fee” means the relevant fees as detailed in clause 7of these Terms of Business as agreed by The Company and the Client .
“Independent Contractor” means any entity engaged by The Company as an Independent Contractor and not as an employee to provide products or Services for the Client.
“Intellectual Property” means creations of the mind or intellect that can be legally owned. This may include but is not limited to patents, trademarks, designs, processes, data, software, utilities, tools, models, systems and other methodologies and know-how.
“Non-Compete Period” means the period of 12 months after the Services are delivered.
“Non-Solicitation Period” means a period of 12 months after the Services are delivered.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
“Privacy Laws” means Privacy Act (Cth) 1988.
“Restricted Area” means the relevant jurisdiction in which the client the Client is registered or resides.
“Services” means the health and wellbeing training provided by The Company to the Client.
1. General Terms
1.1 These Terms of Business apply to the Services whenever performed (including before the date of the works are formally accepted).
2. Liability and Indemnities
2.1 The Company is not liable for any loss, damage, costs or compensation (whether direct or indirect) which may be suffered by the Client, or for which the Client may become liable, arising from the delivery of the Services.
2.2. The Client indemnifies The Company (and keeps The Company indemnified) on a full indemnity basis in respect of all losses, liabilities, costs or claims arising from the delivery of the Services.
3. Goods and Services Tax (GST)
3.1 All Fees payable under these terms of business are exclusive of GST.
3.2 GST will be added to the Fee at the prevailing rate unless it is assessed by The Company to be GST exempt.
3.3 Out of pocket expenses, when applicable, will be calculated and charged as the amount incurred by The Company (net of any input tax credit to which The Company is entitled) plus GST as applicable.
4. Information
4.1 The Client agrees to provide in a timely fashion all information and documents reasonably required to enable The Company to provide the Services.
4.2 The Company will not independently verify the accuracy of any information or document provided by the Client and will not be liable for any loss or damage arising from any inaccuracy or other defect in the information or documents supplied.
5. Privacy
5.1 The Client agrees to comply with Privacy Laws regarding Personal Information and must ensure that before disclosing any Personal Information to The Company the Client is entitled to disclose that information and without taking any further steps as required by the Privacy Laws.
5.2 The Company may use and disclose such information for the purpose of providing Services under these Terms of Business.
5.3 If the Client becomes aware of any breach or alleged breach of the Privacy Laws concerning information disclosed by the Client to The Company, then the Client must notify The Company immediately.
6. Payment for Work Performed
6.1 The Client shall make payment to The Company for all work performed.
7. Fees
7.1 The Client agrees with The Company the Services. The Fees are those fees set out in Schedule A + GST (if applicable) Available once program has been discussed.
7.2 Unless otherwise agreed, payments are to be made by direct transfer to:
Rota Holdings Pty Ltd ATF The Rota Trust
BSB: 084 123
Acc No: 14 834 1098
7.4 If The Company does not receive payment of the Fee, The Company can charge the Client interest at 6% pa.
7.5 The Company may suspend or cancel the Services if payment is not received by the due date. Upon suspension or cancellation, the debt is not forgiven. The Client must pay for service provided to the date of suspension or cancellation. If under suspension Services may resume after payment is received.
8. Intellectual Property Rights
8.1 The Company may use data, software, designs, utilities, tool, models, systems and other methodologies and know-how in performance of Services. The Company retains all rights, including any improvements or knowledge developed while performing the Services or in connection with the Services, but not Client information reflected in them.
8.2 The Client retains all rights in their Intellectual Property, including any improvements or knowledge developed while performing the Services or in connection with the Services.
9. Confidentiality
9.1 Except where permission is given in writing, the Client must not disclose to third parties the contents of these Terms of Business or any information provided by or on behalf of The Company that ought reasonably to be treated as confidential and/or proprietary. Disclosure of such information may be given to the extent that it:
(a) is or becomes public other than through a breach of these Terms of Business, or
(b) must be disclosed under applicable law.
9.2. The Company may disclose Client Information to The Company’s employees, agents or Independent Contractors and other third parties in order to provide Services to the Client.
9.3 The Company and their employees, agents and Independent Contractors may collect, use, transfer, store or otherwise process information:
(a) for purposes related to the provision of Services.;
(b) to comply with regulatory requirements;
(c) for quality, risk management or financial accounting purposes;
(d) for the provision of other administrative purposes.
9.4 The Company shall be responsible to the Client for maintaining the confidentiality of Client Information.
10. Relationships with other Clients
The Company provides services to other clients, some of whom may be in competition with the Client or have interests which conflict. The Company will not disclose any of the Client’s Personal Information, or any confidential information that may come into The Company’s possession as a result of the Services provided . However, this will not restrict The Company from providing services to other clients.
11. Non-Compete and Non Solicitation
Competing with The Company
11.2 The Client must not:
(a) For the Non-Compete Period, carry on, be engaged or otherwise interested in any business that competes with The Company or provides similar services as that of The Company; or
(b) Be in a position in which you can use Confidential Information to gain an advantage for the relevant entity or cause detriment to The Company.
Inducing directors, officers, employees or the Client to leave The Company
11.3 The Client must not (whether directly or indirectly) during the Non-Solicitation Period encourage or induce, or attempt to encourage or induce, any director, officer, employee or Contractor of The Company, with whom the Client had dealings, during the 12 months preceding provision of the Services, or about whom the Client has, or has had, Confidential Information about in respect of their engagement with The Company, to terminate their engagement with The Company, whether or not that person would commit a breach of that person’s contract of engagement.
Persuading The Company’s customers and clients
11.4 The Client must not (whether directly or indirectly) during the Non-Solicitation Period, solicit, canvass or approach any person or entity who was:
(a) A customer, client, agency or supplier of The Company whom the Client had dealings during the last 12 months preceding the Services, or about whom the Client has, or has had, Confidential Information; or
(b) A potential customer, potential client, potential agency or potential supplier of The Company, with whom, or in respect of whom, the Client has, or has had, work-relating dealings with during the 12 months preceding the engagement or about who the Client has, or has had, Confidential Information,
with a view to:
(c) obtaining the custom or business of any such person or entity for the Client’s benefit or the benefit of any other person;
(d) Persuading any such person or entity to cease doing business with The Company; and
(e)Persuading any such person or entity to reduce the amount of business which the person or entity would normally do, or otherwise would have done, with The Company.
Priority of restrictions
11.5 The Client agrees that the Client intends the restrictions in this clause to operate to their maximum extent. However, should a Court consider it necessary to reduce the extent of the restrictions, the parties intend that any reduction should be made to the Restricted Area before any reductions are made to the Non-Compete Period or Non-Solicitation Period.
Consent to notification of new employer
11.6 The restrictions in this clause do not apply to circumstances where the Client has obtained The Company’s consent.
Restrictions reasonable and independent
11.7 The Client acknowledges and agrees that:
(a) Despite anything in this clause, for the purpose of this clause, a “substance over form” approach is intended to be taken as to whether the conduct prohibited by this clause occurred in the Restricted Area. For example, the provisions of this clause will apply if the Client solicits an employee allocated inside the Restricted Area but takes the relevant action (e.g. make a telephone call or send an email to that employee) from a location outside the Restricted Area;
(b) The Client will obtain Confidential Information during the Client’s engagement, the disclosure of which could materially harm The Company;
(c) The restrictions in this clause are reasonable and necessary for the protection of The Company’s Confidential Information and goodwill;
(d) The Client intends for the restrictions to operate to the maximum extent;
(e) Damages may be inadequate to protect The Company’s interests and The Company is entitled to seek and obtain injunctive relief, or other remedy, in any court, and;
(f) The restrictions are separate, distinct and several, so that the unenforceability of any restriction does not affect the enforceability of other restrictions.
Modification to restrictions
11.9 If the restrictions in this clause:
(a) Are void as unreasonable for the restriction of The Company’s interests; and
(b) Would be valid if part of the wording was deleted or the period or area was reduced, the restrictions will apply with the modifications necessary to make them effective.
Obligations continue
11.10 The Client’s obligations under this clause survive the termination of the Client’s engagement with The Company.
12. Termination
12.1 These Terms of Business shall terminate on completion of the Services when full payment of the Fee has been received by The Company.
12.2 The Company may terminate the Services earlier if The Company reasonably determines that they can no longer provide the Service in accordance with applicable law or professional obligations. The Client must pay The Company for all work-in-progress, Services already performed, and expenses incurred by The Company up to and including the effective date of termination.
12.3 Clauses 2, 5, 8, 9 10, 11 and 16 survive termination or expiry of these Terms of Business together with any other term which by its nature is intended to do so.
13. Independent Contractors
13.1 The Company reserves the right to subcontract for any products or services required to facilitate the completion of Services.
13.2 Independent Contractors engaged by The Company are restrained from engaging separately with the Client.
13.3 Should an Independent Contractor approach the Client directly in order to provide products or services the Client must notify The Company immediately.
14. Disputes
14.1 Where disputes arise under these Terms of Business (other than payment of Fees) or Services, the Client and The Company agree:
(a) to provide written notice of the dispute to the other party to the approved email address;
(b) that within 7 days of sending the written notice a meeting will be convened at a mutually agreed time and place;
(c) representatives from The Company and the Client, who have authority to settle the matter, meet as agreed under (b) with an intention to come to a resolution;
(d) if the dispute is unsettled under (c) the Client or The Company may refer the dispute for litigation.
15. Entire Agreement
15.1 These Terms of Business constitute the entire agreement between The Company and the Client and supersedes all prior agreements, understandings and representation with respect thereto.
16. Force Majeure
16.1 Neither the Client or The Company shall be liable for breach of these Terms of Business (other than payment of Fees) caused by circumstances beyond the reasonable control of the Client or The Company.
17. Jurisdiction
17.1 These Terms of Business and any matters or obligations arising out of them or Services provided shall be governed by and construed in accordance with the laws of New South Wales [MR3] .
18. Severability
18.1 In the event any one or more of the provisions of these Terms of Business shall be held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired, and these Terms of Business shall not be void for this reason alone.