By (a) submitting the Registration Form found attached to these Terms; or (b) paying any amount to the Consultant in respect to the Services; or (c) otherwise accepting or proceeding with the Services, the Member agrees to be bound by these Terms, and all other policies of the Consultant.
The Consultant reserves the right to update and change these Terms from time to time without notice. The Member will be subject to the Terms in force at the time the Member registers for the Program.
1. Registration/ Membership
The Member’s enrollment and registration in the Program is subject to the Consultant’s acceptance of the Member’s Registration Form and payment of any required fees. The Consultant may accept or reject any Member in its sole discretion. Processing of Registration Forms will not be completed until payment of required fees has been received in cleared funds. Please also note that the Member’s enrollment in the Program is subject to availability. In the event the Program is fully booked, the Consultant will get in contact with the Member to organise an alternative.
2. Provision of Services
Subject to acceptance into the Program and fulfillment of the Member’s obligations under these Terms, the Consultant agrees to provide the Member with the Program(s) (as selected in the Registration Form) in accordance with these Terms.
Full details of the Program as well as inclusions and any exclusions will be as specified on the Website.
The Member acknowledges and agrees that:
(a). the Member participates in the Program solely at it own risk;
(b). the Member is solely responsible for following or not following, or making an assessment of any information given at the Program;
(c). the Member is solely responsible for the results they achieve in and subsequent to the Program. The Member’s success depends on many factors, including their dedication, participation, desire, and motivation – the Member will only get out of it what they put in; and
(d). they have read, understood and agrees to the general disclaimer contained in clause 11, the medical disclaimer in clause 12 and the earnings and income disclaimer contained in clause 13.
These Terms commence on the Commencement Date and continue unless and until the Program is completed or it is terminated earlier in accordance with these Terms.
4. Payment For The Services
In consideration of the Consultant performing the Services and providing the Program, the Member agrees to pay the Consultant the program fees and any other charges in the amounts and in the manner as specified in the Registration Form.
4. 2 Payment
The Consultant offers the payment plans as specified in the Registration Form.As enrollments are limited in the Program, a number of Programs involve a non-refundable deposit as specified in the Registration Form which is due immediately on agreeing to these Terms (for further information on the Consultant’s refund policy please see clause 9).
4.3 Time for Payment
The Consultant shall invoice the Member for such fees and the Member agrees to pay each invoice in accordance with the due date as specified on the invoice and the payment plan chosen in the Registration Form.
4.4 Late Payment
If the Member fails to pay any amount when due under these Terms, the Member acknowledges that the Consultant may in its discretion:
(a). suspend the provision of the Services to the Member until payment of the overdue amount is received in full (including interest), and the Consultant will not be responsible for any loss suffered by the Member because of this; and/or
(b). charge the Member interest calculated at 12% per annum which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.
4.5 Direct Deposit
If the parties have agreed that the fees will be paid via a direct debit arrangement, then the Member irrevocably authorises the Consultant to debit the fees during the term from the Member’s nominated bank account/credit card/debit card (“Account”), on or about the due date for payment without notice to the Member. The Member must ensure that the Account details are up to date at all times and the Member must notify the Consultant in the event that the details are no longer current, and provide replacement details. The Member also irrevocably authorises the Consultant to deduct all other fees and charges payable by the Member to the Consultant under these Terms from the Member’s nominated Account. The Member warrants that the Member is the owner or has the right to use any Account details provided to the Consultant. Default charges will apply in the event that you stop the authority to charge on your Account without acceptance by the Consultant. Insufficient funds in your Account will also attract a fee. Such default and other fees will be outlined in the Member’s separate agreement with the billing service provider.
(a). All fees must be paid into the bank account nominated by the Consultant or by any other means specified by the Consultant.
(b). The Member must pay the Consultant all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
(c). The Consultant reserves the right to charge a small transaction fee as follows; (a) payments by direct debit equal to 1.75% + 30c and 2.9% +30c for international cards (b) PayPal payments equal to 4%.
(d). All fees are exclusive of GST. The Member shall, on receipt of a valid tax invoice from the Consultant, pay such amounts in respect of GST as are chargeable on the supply of the Services. Payment of any applicable GST is due at the same time as the fees.
5. Access To Program Materials
5.1 The Member acknowledges that as part of the Program, the Member will gain access to Program Materials. Such access is granted in accordance with these Terms.
5.2 Subject to the Member fulfilling its obligations under these Terms, the Consultant grants the Member a revocable, non-exclusive, non-assignable nor transferable license to access and use the Program Materials during the course of the Program, solely for the purpose of obtaining the benefit of the Program.
5.3 The Member may only use the Program Materials for the purpose they were designed. Access is also granted to all updated versions of the Program Materials (if any are made) however, the Consultant is under no obligation to release any such updates.
5.4 The Member must not without the prior written consent of the Consultant:
(a). sub-license, assign or novate the benefit or burden of this license in whole or part (except as permitted);
(b). allow the Intellectual property to become subject of any charge, lien or encumbrance;
(c). use, copy, reproduce, reverse engineer, distribute, export, adapt, alter, modify, translate, publish, share, create derivate works, or publicly display any of the Program Materials anywhere in the world, without the prior written consent of the Consultant; and
(d). deal in any other manner with any or all of its rights and obligations under this license.
6. Intellectual Property Rights
6.1 The Consultant Intellectual Property Rights
(a). The Member agrees that the Consultant will own all rights, title and interest (including Intellectual Property Rights) which subsist in or which may be obtained from the Intellectual Property and undertakes not to:
(i.) take or permit or omit any action which would or might:
A. invalidate or put in dispute the Consultant’s title to the Intellectual Property or any part of it;
B. oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it (including without limitation a registration of the Intellectual Property as a patent worldwide);
C. support any application to remove or undo the Consultant’s title in the Intellectual Property or any part of it; or
D. assist any other person directly or indirectly in any of the above;
(ii.) use, copy, reproduce, reverse engineer, distribute, export, adapt, alter, modify, translate, publish, share, create derivate works, or publicly display any of the Intellectual Property anywhere in the world, without the prior written consent of the Consultant.
A. To the extent necessary to give effect to this clause, assigns all of the Intellectual Property Rights in such Intellectual Property to the Consultant.
B. Other than as expressly stated in these Terms, the Member does not have any right, title or interest or Intellectual Property Rights whatsoever in the Intellectual Property.
C. Any goodwill derived from use of the Intellectual Property will accrue to the Consultant. The Consultant may at any time, call for a document confirming the assignment of that goodwill that must be executed by the Member.
The Member warrants that:
(a). it has not given permission to any third party to use any of the Intellectual property, nor any of the Intellectual Property Rights in the Intellectual property; and
(b). it is not aware of any use by any third party of any of the Intellectual Property or Intellectual Property Rights in the Intellectual Property.
7. Photos, Videos, And Testimonial Consent
7. 1 The Member acknowledges and agrees that the Consultant (or an authorised agent) may take photos and/or videos in connection with the provision of the Services (including without limitation coaching video calls).
7.2 The Member authorises and consents to the Consultant using any photograph or video or audio taken during the provision of the Services for any purpose including for promotional and marketing purposes. The Member warrants that it has the permission of all attendees who it arranges to attend the event (including the guest) to take and use such photos and videos.
7.3 Where the Member provides feedback or other comments with respect to the Programs, the Member authorises and consents to the Consultant using the Member’s likeness and photos alongside such testimonial for any purpose including for promotional and marketing purposes (including the Consultant’s Website, social media accounts or displayed at an event).
8. No Disparagement
8.1 At all times, the Member must not make any public or private statement or comment, whether oral or in writing, which in the reasonable opinion of the Consultant, is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about the Consultant and/or any of its Services (including the
Programs) nor any statement that is false and does or has the tendency to damage the reputation of the Consultant by any method including on social media anywhere in the world.
9. Member Obligations
9.1 During the Program the Member must:
(a). actively participate in all components of the Program and give their full attention to the Program during the Term;
(b). be respectful to the Consultant and other participants;
(c). keep the Consultant informed of any medical health or personal circumstances that may interfere with the Program;
(d). be responsible for their own results, which includes proactively asking for support, scheduling coaching calls and using any program benefits; and
(e). honour the relationship between the Member and the Consultant, by being direct, truthful and open so the parties can work together.
9.2 Where the Program includes activities in groups with other participants, or the attendance at events the Member must not:
(a). engage in illegal or disruptive activities;
(b). be under the influence of illicit substances or be intoxicated;
(c). collect personal data about other users for commercial or unlawful purposes;
(d). infringe other persons rights including intellectual property or privacy rights;
(e). impersonate any person or entity;
(f). act in a way or submit anything that:
(i.) affects the enjoyment of other attendees;
(ii.) is unlawful, fraudulent, misleading, deceitful, threatening, abusive, libellous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, abusive, offensive, inflammatory or otherwise objectionable;
(iii.) harasses, degrades, intimidates or is hateful to an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;
(iv.) is an advertisement, solicitation, chain letter, pyramid scheme, investment opportunity or other unsolicited commercial communication (except as otherwise expressly permitted by the Consultant).
10. Cancellations And Refunds
10.1 To the extent permitted by law, if the Member wishes to cancel the Program or the Services in whole or part, refunds will only be given in accordance with this clause.
10.2 Cancellation and Refund Policy
The refunds and cancellation policy for each Program is as set out below (please note a cancellation fee will apply as set out under clause 9.4)
10.3 No refunds
Subject to the other terms of this clause, the Consultant offers no refunds if the Client wishes to cancel the Program or the Services:
(a). where they change their mind; or
(b). where they are unable to make payments in accordance with an agreed payment schedule; or
(c). where the Services are needed to be rescheduled due to an event beyond the Consultant’s reasonable control; or
(d). where there is a change of location of the venue of the Services (except where such change results in the new venue being outside of a 25 kilometer radius of the previous venue).
(a). Where the Member cancels the Services in accordance with these Terms, a cancellation fee of $500 will apply.
(b). Membership cancellation will be considered final on receipt of the Cancellation Request Form, approved documentation supplied to prove extenuating circumstances (if applicable) and activation of the cancellation by [email protected]
(c). Please note the Member will remain responsible for scheduled weekly payments until such times as the Cancellation Request Form is completed and submitted to [email protected] and made in accordance with these Terms.
Where a refund is permitted in accordance with these Terms, all refunds will be processed within 14 days after the return (at the Member’s expense) of any material supplied as part of the Program.
10.6 No Penalty
Upon acceptance of the Member’s enrolment, the Consultant allocates resources to the Program and commits a significant amount of time to the provision of the Program.
Given the before and the fact that enrolment places are limited, the Member acknowledges that any non-refunded amount and/or cancellation fee is a genuine pre-estimate of the loss the Consultant is likely to suffer as a result of the Member’s early cancellation. The Member acknowledges that this is not a penalty.
The Consultant reserves the right to change the location of the Services if necessary, on providing the Member written notice. The Member shall only have a right to a refund in accordance with the terms of this clause
11.1 Consultant’s Personnel
The Member approves the Consultant to subcontract, delegate or perform the Services through any person without the prior written consent of the Member. Unfortunately, due to the nature of work, the Consultant is unable to guarantee any specific Consultant Personnel will be available to provide the Services (including the Program), and if necessary, the Consultant may need to vary or substitute the Consultant’s Personnel providing the Services.
11.2 Member’s Guests
(a). The Member must ensure that its Guests that have access to the Services or participate in any way with the Services (whether directly or indirectly) are bound by an agreement which contains provisions at least as protective of the Consultant’s confidential information and intellectual property as contained in these Terms.
(b). The Member is solely responsible for ensuring that the Member’s Guests comply with the provisions of these Terms (particularly in relation to confidential information and intellectual property), and a breach by any of the Member’s Guests of an obligation imposed on the Member under these Terms, will be deemed to be a breach by the Member.
12. General Disclaimer
12.1 The Services are intended for general education and information purposes only. Nothing on drespen.com (the “Website”), or any of the content provided to the Member by the Consultant during the provision of the Services (the “Content”), purports to offer business, legal, medical, tax or other professional advice. The Member should use caution and always seek professional advice before acting on any information that the Consultant provides.
12.2 The Consultant provides support, guidance and tools to assist the Member to set goals, determine priorities and achieve results, but any decision the Member makes, and the consequences that flow from such decisions, is the Member’s sole responsibility. The Member’s success depends on many factors, including their dedication, participation, desire, and motivation.
12.3 Nothing on the Website or any of the Content or Services is a promise or guarantee that the Services will provide any results or that the Services will meet your particular requirements or desired outcomes (even if disclosed). Any information given (including case studies) is purely based on experience and is for illustrative purposes only. Information provided may not always be tailored specifically for the Member. The Member understands that because of the nature and extent of the Program, the results experienced by each client may significantly vary.
12.4 Any testimonials and examples within any marketing materials are not to be taken as a guarantee that the Member will achieve the same or similar results.
12.5 The Member acknowledges and agrees that the Consultant, its directors, principals, employees and representatives are not responsible for decisions that the Member may make nor losses that may arise out of any business or personal decision made by the Member at any time. Just to be clear, the Member is solely responsible for any actions they do or do not take, or the making of an assessment of any advice given directly or indirectly in connection with the Services. The Member is 100% responsible for their progress and results from the Services. Failure to follow any advice may affect the overall results that may be achievable at the Services.
12.6 The Member acknowledges and agrees that use of the Services is solely at their own risk. The Consultant provides the Services on an “as-is” and “as available” basis and whilst every effort is taken to ensure the Content and the Website is accurate, the Consultant makes no representations and gives no guarantees or warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of the Content and the Website for any purpose.
13. Medical Disclaimer
13.1 The Program is not intended to establish a doctor/health practitioner-patient relationship between the Member and the Consultant, nor is it intended to replace the services of a health care professional. The Program is designed to support not replace this. The Program is not a clinical tool and should not be relied on as a substitute for any professional medical or health advice, diagnosis or treatment.
13.2 If the Member believes they may be suffering from any medical condition they should seek immediate medical attention from an appropriately qualified medical practitioner. Protocols and medical attention delivered through the Program are a general guideline only and are not prescriptive or intended to be a substitute for a doctor or a health professional’s advice. Any protocols and treatments should be discussed with the Member’s doctor or health professional before adopting. The Member should not rely on the Content in making medical, health related or any other decisions of any kind. The Member should verify the accuracy of any Content with a doctor/health practitioner before relying on it, who will be able to advise the Member on their own individual medical needs.
14. Earnings And Income Disclaimer
14.1 The Consultant cannot and does not make any guarantees about the Member’s ability to get results or earn any money with the Consultant’s ideas, information, tools, or strategies. The Member acknowledges that there is an inherent risk in any activity and agrees there is no guarantee that the Member will earn any money or reach the Member’s goals as a result of the Member’s purchase of or participation in the Services.
14.2 Any financial representations referenced by the Consultant on the Website, in videos, forums or during the provision of the Services are illustrative of concepts only and should not be considered as promises for actual or future performance.
15. Representations & Warranties
15.1 The Member represents and warrants that:
(a). the Member has the full power and authority to enter into, perform and comply with its obligations under these Terms;
(b). the Member has duly and validly authorised the execution, delivery and performance of these Terms, and such execution will not contravene any law or any other agreement or arrangement that the Member is a party to;
(c). at the date of signing these Terms, the Member is not subject to an insolvency event;
(d). unless otherwise disclosed in these Terms, the Member is not entering into the Agreement as trustee of any trust or settlement;
(e). the Member has not made any false declaration in respect of any current or past dealings with the Consultant, including in any negotiations;
(f). the Member will as soon as possible notify and fully disclose to the Consultant if:
(i.) an event has occurred or is likely to occur which may lead to default on the part of theMember under these Terms; or
(ii.) proceedings are taken or threatened or are pending against the Member which could have an adverse effect upon the Member’s reputation or upon the Member’s capacity to perform the Member’s obligations under these Terms.
15.2 The Member acknowledges that the Consultant is entering into these Terms in reliance of the warranties and representations contained in clause 14.1 and the Member agrees that those warranties and representations are deemed to be repeated by the Member each time Services are performed under these Terms.
16.1 Either party (the non-defaulting party) may terminate these Terms with immediate effect by giving written notice to the other party if:
(a). the other party fails to pay any amount due under this agreement on the due date for payment;
(b). the other party commits a breach of any term of this agreement and either:
(i.) the breach is irremediable; or
(ii.) the breach is remediable and the other party fails to remedy that breach within a period of 7 days after the other party has, or is deemed to have, received written notice requesting it to do so;
(c.) the other party repeatedly breaches any of the terms
of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d.) an insolvency event occurs in relation to the other party; or
(e.) any warranty given by the other party in this agreement is found to be untrue or misleading.
16.2 The rights available to a party under this clause do not affect any other right or remedy otherwise available to it.
17. Effect Of Termination
17.1 On termination or expiry of this agreement:
(a). each party must promptly deliver to the other all property belonging to the other that is in its possession or control, including any Intellectual Property and Confidential Information;
(b). access granted to the Intellectual Property and Confidential Information (in accordance with these Terms) will immediately cease;
(c) each party must pay to the other any sums that are outstanding and to be accounted for under these Terms;
(d). unless otherwise in accordance with these Terms there will be no refund for any fees paid.
17.2 Termination or expiry of this agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
18.1 Except to the extent caused or contributed to by any negligence, willful misconduct or breach of these Terms by the Consultant, the Member indemnifies the Consultant against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Consultant arising out of or in connection with:
(a). the Member’s use of the Services;
(b). the Member’s use of any venue or attendance at a event (including without limitation any damage to the venue or any goods located at the venue);
(c). any claim made against the Consultant or the Member by a third party arising out of or in connection with the provision of the Services and/or these Terms;
(d). any breach of these Terms by the Member, including any failure to pay any fees on time;
(e). any reliance by the Member or a third party on the Services or any advice, information or deliverable provided in connection with the provision of the Services and/or this agreement;
(f). the enforcement of these Terms; and
(e). any negligent act, omission or willful misconduct of the Member.
18.2 The Member must make payments under this clause 17:
(a). in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b). in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
19. Exclusion And Limitation of Liability
19.1 The Consultant provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause, the Consultant excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this agreement to the maximum extent permitted by law.
19.2 Without limiting the generality of clause 18.1, the Consultant expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
(a). the Member’s access and use of the Services;
(b). the Member’s participation in the Program;
(c). the Member’s reliance on the Services and any information given; and
(d). any event which is beyond the Consultant’s control.
19.3 Subject to the other terms of this clause, the Consultant’s maximum aggregate liability to the Member in any 12-month period for any loss or damage or injury arising out of or in connection with the supply of goods or services under this agreement, including any breach by the Consultant of this agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Member under this agreement in the 12-month period preceding the matter or event giving rise to the claim.
19.4 Nothing in this agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision or any liability of the Consultant in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
19.5 If the Consultant is liable to the Member in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Consultant’s total liability to the Member for that failure is limited to, at the option of the Consultant to the resupply of the Services or the payment of the cost of resupply.
19.6 Subject to the other terms of this clause, the Consultant excludes any liability to the Member, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill or reputation or loss of use or corruption of data or information.
19.7 This clause applies to the fullest extent permitted by law and shall survive any termination or expiration of this agreement.
19.8 In this clause “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
20. Confidential Information
20.1 Confidentiality obligations
(a). Other than where:
(i.) use of the Confidential Information is required for the purpose of complying with a party’s obligations under these Terms;
(ii.) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
(iii.) expressly agreed by all parties in writing; or
(iv.) required by law; the Member must at all times:
(v.) treat and keep the Confidential Information confidential;
(vi.) not use, or allow the use, of the Confidential Information by any third party; and
(vii.) not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.
(b). Without limiting the generality of clause 19.1(a), the Member must:
(i.) only use the Confidential Information in accordance with the instructions provided by the Consultant in writing;
(ii.) not reproduce or record or make any notes of any Confidential Information except as permitted;
(iii.) not allow or assist any other person to disclose use, publish or release the Confidential Information;
(iv.) put in place and maintain adequate security measures to protect the confidentiality of the Confidential Information being no less stringent than a reasonable person in the Member’s position would use with respect to its own confidential information including:
A. taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;
B. taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and
C. taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction; and
(v.) copy, duplicate or adapt any of all of the Confidential Information or create other works from the Confidential Information without the prior written consent of the Company;
(vi.) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.
20.2 Notifying the Consultant
(a). must immediately notify the Consultant if the Member becomes aware of any breach or anticipated breach of the obligations in these Terms; and
(b). must immediately notify the Consultant if the Member is lawfully obliged to disclose any Confidential Information to a third party and must comply with the Consultant’s lawful directions in relation to the disclosure.
20.3 Return of Confidential Information
(a). If requested by the Consultant, the Member must immediately:
(i.) return to the Consultant or destroy (at the direction of the Consultant) all Confidential Information, and any copies of the Confidential Information;
(ii.) cease using the Confidential Information; and
(iii.) an authorised signatory of the Member must confirm in writing that they complied with this clause.
(b.) For the avoidance of doubt, the return, destruction or deletion of Confidential Information under this clause does not release the Member from its obligations under or in connection with these Terms.
In the event of a breach or threatened breach of these terms by the Member, the Consultant will be entitled to an injunction restraining the Member from committing any breach of these Terms without showing or proving actual damage sustained or likely to be sustained.
All notices authorised or required under these Terms to be given by a party to another shall be in writing delivered personally, or sent by prepaid post or emailed and in each case addressed to the other party at that party’s usual address or at such other address as a party may from time to time notify to the other party.
22. General Provisions
22.1 Governing law
(a). This Agreement is governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland.
(b). The parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.
22.2 Binding on successors
These Terms shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
The Member may not transfer, assign or otherwise dispose of their interest in these Terms without the prior written consent of the Consultant, which consent may be unreasonably withheld. For the avoidance of doubt, the Consultant may transfer, assign or otherwise dispose of their interest in these Terms without the prior written consent of the Member.
Where these Terms are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
22.5 Variation and Waiver
These Terms may be varied by agreement in writing by both parties. No waiver by a party of a provision of these Terms are binding unless made in writing.
If a provision of these Terms is void or unenforceable it must be severed from or read down to the extent necessary from these Terms and the provisions that are not void or unenforceable are unaffected by the severance.
22.7 Time of the essenceTime is in all cases and in every respect of the essence of these Terms.
22.8 Further assurancesThe parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms.
22.9 Entire understanding
(a). These Terms contain the entire understanding and agreement between the parties as to the subject matter of these Terms.
(b). All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of these Terms are merged in these Terms and are of no further effect.
(c). No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms or constitutes any collateral agreement, warranty or understanding.
22.10 Counterparts and email
These Terms may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
22.11 No adverse contraction
The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
The parties must bear their own costs of and incidental tothe negotiation, preparation and execution of these Terms.
22.13 Cumulative rights
The rights and remedies of a party to these Terms are inaddition to the rights or remedies conferred on the party atlaw or in equity.
22.14 Dispute resolution
(a). If a dispute arises in connection with these Terms then a party may only deal with that dispute in the manner set out in this clause.
(b). A party to a dispute which arises in connection with these Terms may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
(c). Within 14 days after a notice is given under clause 21.14 (b) (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
(d). If despite the parties’ best efforts a dispute is not resolved within 14 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Mediation Rules of The Institute of Arbitrators and Mediators Australia. The mediation will be conducted by a mediator to be appointed by agreement of the parties or in default of agreement to be appointed by the Resolution Institute (ACN 008 651 232) at the request of a party.
(e). If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
(f). The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.
23. Definitions and Interpretations
In these Terms, unless inconsistent with the context or subject matter:
(a). Applicable Laws means all acts, legislation and all orders, by-laws and regulations made thereunder in any way governing or affecting the exercise of the parties’ rights or the performance of their obligations under these Terms;
(b). Commencement Date means the date the Member agrees to these terms or such other date as agreed in writing by the parties;
(c). Confidential Information of a party means all information (in any form):
(i.) relating to or arising from the Services;
(ii.) that concerns the Consultant’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
(iii.) includes these Terms; but does not include information that:
(iv.) is or becomes independently developed or known by the Member through no breach of these Terms by the Member; or
(v.) becomes publicly available without breach of these Terms;
(d). Guest means those persons or entities specified in the Registration Form;
(e). Intellectual Property means Intellectual Property Rights, including patents, copyright, trade marks, any right to have Confidential Information kept confidential and any application or right to apply for registration of any of these rights, and includes the following:
(i.) the Services (including the Program);
(ii.) the Program Materials; and
(iii.) any other material on the Website or otherwise delivered by the Consultant to the Member including (but not limited to) course content, documents, templates text, graphics and information architecture in the provision of the Services.
(f). Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
(i.) all rights in all applications to register those rights;
(ii.) all renewals and extensions of those rights; and
(iii.) all rights in the nature of those rights, such as moral rights;
(g). Loss means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
(h). Program means the Program delivered by the Consultant to the Member in accordance with these Terms;
(i). Program Materials means all Intellectual Property Rights in works, items, concepts, designs, inventions, developments, improvements, systems or other materials or information of whatever nature created, made, discovered, produced or developed by the Member or the Consultant (either alone or with others and whether before or after the date of these Terms) that is made available to the Member or obtained by the Member in connection with the Services;
(j). Personnel means those persons or entities employed or engaged by a party in the provision of the Services and includes, for the Consultant, the directors, agents, employees and sub-contractors of the Consultant (where applicable);
(k). Related Entity has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
(l). Registration Form means the Registration Form attached to these Terms;
(m). Term means the period of these Terms commencing on the Commencement Date and continuing until termination.
In these Terms, unless inconsistent with the context or subject matter:
(a). a reference to a person includes any other legal entity and vice versa;
(b). words importing the singular number include the plural number and vice versa;
(c). a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(d). headings are for reference purposes only and must not be used in interpretation;
(e). a reference to a statute includes all regulations and subordinate legislation and amendments;
(f). a reference to a monetary amount is a reference to an Australian currency amount unless otherwise nominated by the Member;
(g). an obligation of two or more parties binds them jointly and each of them severally;
(h). an obligation incurred in favour of two or more parties is enforceable by them severally;
(i). references to time are to local time in Queensland;
(j). a reference to a business day means a day that is not a Saturday, Sunday or public holiday in Queensland;
(k). if any time period specified in these Terms expires on a day which is not a business day, the period shall expire at the end of the next business day.