1 Definitions and interpretation

1.1 Definitions

Agreement means this agreement including the background.

Business Day means a day on which the banks are open for business in Brisbane, Australia excluding a Saturday, Sunday or public holiday.
Commencement Date means the date of this Agreement.
Confidential Information means all confidential information of a party or its related bodies corporate (as defined in the Corporations Act) including information, in any form or media, about the business, systems or affairs of a party and the fact that the parties are parties to this Agreement or a contract which is or has been:
(a) disclosed under or in connection with this Agreement, whether orally, electronically, in writing or otherwise; or
(b) learnt or acquired in the performance of this Agreement, other than any such information which:
(i) was in the public domain at the time of its provision;
(ii) became part of the public domain after its provision, otherwise than through a disclosure by the other party or any person to whom the other party has disclosed that information; or
(iii) is or came lawfully into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence.
Consultant Tools of Trade means any business processes, previous work examples, any data or information, technique or process, tool or mechanism, formula or compound, pattern or testing method and results used by the Consultant or any other intellectual property which would be considered to be proprietary to the Consultant whether developed during the performance of the Services or otherwise and any pre-existing intellectual property included in what is delivered to the Client.
Corporations Act means the Corporations Act 2001 (Cth) as amended from time to time.
GST means any goods and services tax, value added tax or other like tax.
Initial Term means one (1) year.
Insolvency Event means the occurrence of any one or more of the following events in relation to either party:
(a) 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bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, unless the application is withdrawn, struck out or dismissed within 7 days of it being made;
(b) the appointment of a liquidator or provisional liquidator;
(c) the appointment of an administrator or a controller to any of its assets;
(d) 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;
(e) 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;
(f) 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;
(g) that party becomes an insolvent or under administration, or action is taken which could result in such event;
(h) that party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
(i) a notice is issued under section 601AA or 601AB of the Corporations Act;
(j) a writ of execution is levied against that party or its property;
(k) that party ceases to carry on business or threatens to do so; or
(l) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above clauses of this definition.
Intellectual Property Rights means all existing and future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing or come to exist in Australia or otherwise, but does not include Moral Rights.
Invoice Due Date has the meaning given to it in clause 4(c).
Losses means all losses, liabilities, damages and claims, and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties).
Moral Rights means:
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship, conferred by the Copyright Act 1968 (Cth) and rights of a similar nature anywhere in the world that exist now or that may come to exist in the future.
Personnel means all persons acting on behalf of a party or for whom a party is responsible, including employees, consultants, sub-contractors and agents.
Services means the following:
(a) 3 hour live virtual group coaching with Kathryn Porritt delivered online.
(b) Access to private member website with recorded training.
Services Fee means:
(a) $10000 USD paid in Full on the execution date of this Agreement.
Taxes means any taxes or fees with respect to services provided under this Agreement assessed, imposed, levied or charged by any government entity, including but not limited to sales tax, GST or other applicable taxes or duties.
Term means the Initial Term, any further term or the aggregate of the Initial Term and any further term, as appropriate.

1.2 Interpretations

In this Agreement the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) the words "such as", "including", "particularly" and similar expressions are not used as nor are intended to be interpreted as words of limitation;
(e) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a thing (including but not limited to a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to that document;
(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;
(vi) this Agreement includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(viii) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and
(ix) a monetary amount is in United States dollars;
(f) when the day on which something must be done is not a Business Day, that thing must be done on the preceding Business Day; and
(g) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.

2 Provision of Services

The Consultant will provide the Services to the Client. This is in consideration for the Client paying the Services Fee to the Consultant, subject to the provisions of this Agreement.

3 Term

(a) This Agreement commences on the Commencement Date and continues for an initial period equal to the Initial Term, unless terminated in accordance with any express right of termination set out in this Agreement.

4 Payment

(a) The Consultant may invoice the Client for the amount of the Services Fee.
(b) Where the Client prepays all Services Fees for the entire duration of the Initial Term upfront, the Consultant may (in its absolute discretion and only where prior written notice is given by the Consultant to the Client) agree to apply a discount to the Services Fees payable for the Initial Term (at its absolute discretion and on such terms as it may see fit, noting that such discount is repayable by the Client in the event this Agreement is terminated during the Initial Term).
(c) The Client agrees to pay the amount invoiced by the Consultant on the earlier of the due date stated on the invoice and 7 days from the date of the invoice (Invoice Due Date) or, if the Client elects to pay by credit card, direct debit or other payment method agreed in advance with the Consultant, the Consultant will debit the credit card, nominated direct debit or other payment method (for example, Stripe account) for the amount of the invoice and any other fees on or before the Invoice Due Date.
(d) The Consultant is under no obligation to procure or deliver the Services to the Client unless and until the Client pays the invoice referred to in this clause 4 and the Consultant shall not be liable to the Client for any loss or damage caused by a delay in procurement, delivery or performance due to the failure of the Client to pay that invoice by its due date.
(e) If the Client fails to pay amounts due to and invoiced by the Consultant by the due date set out in clause 4(c), then the Consultant shall be entitled to:
(i) suspend the provision of the Services; and
(ii) charge interest on the amount outstanding at a rate of 1.5% per month from the due date for payment, until the amount outstanding (including any interest payable) has been paid in full.
(f) The Client indemnifies the Consultant against all Losses, expenses and costs (including legal fees on an indemnity basis and any fees and costs incurred by the Consultant in engaging a collection recovery service and/or mercantile agents’ fees) incurred by the Consultant as a result of the Client’s failure to pay any amounts owing when due are recoverable from the Client by the Consultant.
(g) Any consideration or amount payable under this Agreement, including any non-monetary consideration is exclusive of Taxes (if applicable).

5 Consultant Tools of Trade

(a) The Client understands that the Consultant has developed the Consultant Tools of Trade. The Consultant may rely upon, utilise, and include Consultant Tools of Trade in the Services performed under this Agreement. Consultant retains all rights, title, and interest, including all copyrights, patent rights, and trade secret rights in the Consultant Tools of Trade. Consultant assigns Client a non-exclusive license in the Consultant Tools of Trade only for the duration of the Agreement.
(b) Any Consultant Tools of Trade may only be accessed by the Client – the individual who is the client on record with the Consultant. The Client agrees that the Program, including any usernames or passwords, may only be used by the Client as permitted herein and may not be sold or otherwise distributed without the Consultant’s express written consent.

6 Consent to use Media

The Client irrevocably gives the Consultant the right to use the Client’s name/photograph/ image/audio recording/video recording and likeness in any format obtained during provision of the Services to the Client (Client Image) for the purposes of use in any of its publications (including web-based publications) (Publication) without payment or other consideration. Whilst the Consultant will take measures it considers necessary or desirable (in its absolute discretion) to mitigate against unauthorised use of the Client Image by individuals within its internal network or otherwise, the Client understands the Consultant cannot control unauthorised use of the Client Image by persons not associated with the Consultant upon the Publication of the Client Image. The Client hereby releases and indemnifies the Consultant from any loss, damage, costs, expense, or claim (including consequential loss) connected with the Publication of the Client Image.

7 Intellectual Property Rights

(a) The Client acknowledges and agrees that materials and other content disclosed to it by the Consultant or any of its agents or assigns in the course of provision of the Services or otherwise (including but not limited to the Consultant Tools of Trade) and all Intellectual Property Rights therein (Consultant IP):
(i) constitutes valuable proprietary information that is protected by applicable intellectual property and other laws; and
(ii) is the exclusive property of the Consultant and will remain the exclusive property of the Consultant.
(b) The Consultant grants the Client a limited, personal, non-exclusive, non-transferable licence to access the Consultant IP for the Client’s own personal and non-commercial use.
(c) The Client must not, without the Consultant’s written consent:
(i) Adapt, create derivative works from or merge the template of the Consultant IP;
(ii) Use the Consultant IP for any purpose other than the specific purpose for which the Consultant has provided it;
(iii) Reverse engineer, disassemble, alter, enhance or decompile the Consultant IP;
(iv) Offer competing services to the Services based upon any information in the Consultant IP;
(v) Remove any copyright notice or author designation from; or
(vi) Distribute, lend, modify, edit, copy, sell, distribute, duplicate, lease, reproduce, resell, transfer, assign, or sublicence the Consultant IP, or in any way exploit or allow any other person to use it except for its intended use.

8 Confidentiality and privacy

(a) Each party acknowledges that the Confidential Information of the other party is valuable to the other party and, subject to clause 8(b), undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
(b) A party may disclose Confidential Information of the other party:
(i) to its legal and professional advisers in order to advise that party in connection with the exercise of rights and performance of obligation under this Agreement;
(ii) to any representative of that party, provided that the disclosure is made for the purpose of this Agreement and the party imposes an obligation upon the representative to maintain the confidentiality of that material; and
(iii) to the extent disclosure is required by an applicable law or court order, provided that the disclosing party gives reasonable advance notice of such disclosure to the other party in order that the other party has an opportunity to attempt to preclude or limit such disclosure.

9 Personnel

(a) The Client must not:
(i) induce or attempt to induce any of the Consultant’s Personnel to leave engagement with the Consultant or to enter into engagement with any other person, firm or corporation other than the Consultant.
(ii) canvass, solicit or endeavour to entice any of the Consultant’s Personnel away from the Consultant or to terminate their contracts of employment or agency with the Consultant;
(iii) interfere or seek to interfere with the relationship between the Consultant and its Personnel;
(iv) induce any other person to perform any of the acts specified in clauses 9(a)(i) to 9(a)(iii).
(b) The Client acknowledges that each restriction specified in this clause 9 is in the circumstances reasonable and necessary to protect the Consultant's legitimate interest, and is given in consideration of the services performed by the Consultant pursuant to this Agreement.
(c) In the event of any breach by the Client of its obligations under this clause 9 then, in addition, and without prejudice to any other remedy which the Consultant may have, the Client is entitled to seek and obtain injunctive relief in any Court of competent jurisdiction.

10 Client Conduct & Non-Disparagement

(a) The Client agrees to conduct themselves in a dignified and professional manner and shall not engage in any activity that is detrimental to the health, safety and welfare of other participants or disparaging to the Consultant. The Client acknowledges and agrees that the Consultant reserves the right to remove the Client from the Services (including but not limited to removal from any seminar or similar event), without reimbursement, if the Consultant, in its sole discretion, determines that the Client’s behavior disparages the Consultant, creates a disruption or hinders the Services or the enjoyment of the Services by other participants.
(b) The parties agree that neither will engage in any conduct or communications with a third party, public or private, designed to disparage or otherwise bring into disrepute the other. Neither Client nor any of Client’s associates, employees or affiliates will directly or indirectly, in any capacity or manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), 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 derogatory or critical of, or negative toward, the Consultant or any of its Services, programs, members, owner directors, officers, Affiliates, subsidiaries, employees, agents or representatives.

11 Warranties

(a) Each party warrants and represents that:
(i) it has full power and authority to execute the Agreement and to perform and observe all of its terms and provisions; and
(ii) the Agreement has been duly executed by each party and is a legal and binding agreement of each party enforceable against it in accordance with the terms of the Agreement.
(b) The Client warrants and represents to the Consultant that:
(i) it will comply with all laws and the requirements of any relevant authority or regulator;
(ii) it has and will continue during the Term to have all licences, authorisations, consents, approvals and permits required by all applicable laws in order to perform its obligations under this Agreement, and otherwise complies and will continue to comply with all laws applicable to the performance of those obligations;
(iii) the Consultant makes no representations, warranties or guarantees in relation to or in connection with the Services other than to the extent set out in this Agreement, including but not limited to in relation to:
(A) future earnings;
(B) business profit;
(C) marketing performance;
(D) audience growth of any kind;
(iv) the Consultant does not guarantee the Client will obtain any specified results using any of the Consultant’s ideas, tools, strategies or recommendations and nothing in the Services is a promise or guarantee of such results, future projections, forward looking statements or assurances;

12 Liability & Indemnity

(a) The liability of the Consultant is limited to the maximum extent permitted by law. To the extent that the Consultant is unable to exclude liability, the Consultant’s liability is limited to (at the Consultant’s option):
(i) supply of equivalent goods or services; or
(ii) a refund of the price paid by the Client for the goods or services (or both).
(b) To the maximum extent permitted by law, the Consultant is not liable for:
(i) any Loss or damage to the goods or services (or both) resulting from any act or omission on the part of the Client, its employees, contractors or agents;
(ii) any special, consequential, direct or indirect Loss or damage incurred by the Client or any other party (including but not limited to lost profits) arising from or in any way connected with this Agreement or any goods or services acquired by the Client from the Consultant, whether such Loss or damage is alleged to arise from breach of contract, express or implied warranty, or in tort, including without limitation, negligence, failure to warn or strict liability.
(c) Subject to Clauses 12(a) and 12(b), the Client is liable for and indemnifies the Consultant against all liabilities, claims, Loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis determined without taxation, assessment or similar process and whether incurred or awarded on or against the Consultant) arising from or incurred in connection with the Client’s use of the goods or the Consultant’s provision of the Services. Each indemnity under this Agreement is a continuing obligation, separate and independent from the Client’s other obligations and survives termination and completion of the purchase of the goods and performance of the Services.
(d) Subject to Clauses 12(a) and 12(b), the Client shall indemnify the Consultant for any loss, damage or expense incurred by the Consultant, to the maximum extent permitted by law, for any breach of this Agreement by the Client.

13 Termination

(a) Without limiting any other right of termination at Law or otherwise, the Consultant may terminate this Agreement:
(i) immediately by giving written notice if:
(A) the Client breaches a provision of this Agreement and does not cure that breach within 7 days of the date on which the Consultant provides the Client with a written notice identifying the breach and requesting that it be cured;
(B) the Client breaches a provision of this Agreement and the breach cannot, in the Consultant's reasonable opinion, be cured;
(C) it is exercising an express right to terminate accrued elsewhere under this Agreement; or
(D) the Client is subject to an Insolvency Event.
(b) Termination, completion or expiry of this Agreement for any reason does not extinguish or otherwise affect:
(i) any rights of the Consultant against the Client which accrued prior to termination or out of the events causing such termination including damages or other remedies to which the Consultant may be entitled; or
(ii) the provisions of this Agreement which by their nature survive termination.

14 General

14.1 Entire agreement

This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.

14.2 Variation

No variation of this Agreement is effective unless made in writing and signed by each party.

14.3 Severability

Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.

14.4 Assignment, novation and other dealings

The Client must not assign or novate this Agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of the Consultant.

14.5 Force Majeure

The Client releases the Consultant from any claim, liability or responsibility pursuant to this Agreement concerning the Consultant’s failure to perform any obligations where such failure is due to strike, lock out, riot, industrial action, fire, storm, tempest, act of god, pandemic, COVID-19 virus, material shortage, government law or regulation or requirement or any other cause beyond the control of the Consultant and no such failure shall entitle the Client to terminate this Agreement.

14.6 Governing law and jurisdiction

(a) This Agreement is governed by the laws of Queensland, Australia.
(b) Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland, Australia and legitimate courts of appeal from such courts.
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