Terms & Conditions

Effective date: 1 July 2018

 

Background

  • The Participant wishes for the Supplier (Peak Persona Pty Ltd) to provide the Services.
  • The parties have agreed that the Supplier will provide the Services to the Participant on the terms of this document.

 

Agreed terms

 


1. This agreement

This document consists of the following parts, and to the extent of any inconsistency, each part will prevail in the following order:

(a) Annexure A;

(b) these Terms and Conditions; then

(c) the Agreement Details.

 


2. Supply of the Services

 

Supply

The Supplier will use reasonable endeavours to provide the Services to the Participant on the terms set out in this document.

 

Delay in Delivery

If a delay is not caused solely by the Supplier, the Supplier will not be responsible for any delay in delivering Services.

 


3. Warranties

 

Participant warranty

The Participant represents and warrants that use of the Participant Material by the Supplier as specified in this document will not infringe the Intellectual Property Rights of any third party.

 


4. Fees

 

Fees

The Participant must pay the Fees to the Supplier.

 

Invoices

The Supplier will invoice the Participant from time to time for the Fees.

The Participant must pay an invoice issued under clause 4.2 within 14 days after the date of issue of the invoice.

 

Deferral of performance

If the Participant fails to pay the Fees as specified in this document, then without limiting any other remedies available to the Supplier, the Supplier may defer performance of all Services until the outstanding Fees are paid.

 

Interest

Without limiting any other remedies available to the Supplier, if the Participant fails to pay any amount payable under this document, the Participant must pay Interest on that amount.

 


5. Term and termination

 

Term

This document commences at the beginning of the Program Period and continues until the end of the Program Period, or it is otherwise terminated earlier under clause 5.

 

Termination for breach

A party may elect to terminate this document by giving written notice to the other party if the other party commits a material breach of this document that cannot be remedied, or where such breach is capable of remedy, the other party fails to remedy that breach within 30 days of receiving notice from the party requiring it to do so.

A party may terminate this document if an Insolvency Event occurs in relation to the other party in which case this document terminates immediately on giving the notice of termination.

 

Termination by notice

The Supplier may terminate this document at any time by at least 30 days written notice to the Participant in which case this terminates on the date specified in that written notice.

 

After termination or expiry

On termination or expiry of this document:

(a) accrued rights or remedies of a party are not affected;

(b) the Participant must give to the Supplier any of the Supplier’s Confidential Information or other property in the Participant’s care, custody or control;

(c) the Participant will transfer to the Supplier all of the documents or data related to, or generated in the course of performing, the Services, including but not limited to Project IP or other data stored in reports and files;

(d) the Participant must pay the Supplier all outstanding invoices by the due date;

(e) the Participant must pay all other amounts outstanding as at the date of, or arising as a result of, expiry, termination or cancellation within 30 days of a request for payment; and

(f) all rights a party has accrued before expiry, termination or cancellation continue.

 

Survival

Termination or expiry of this document will not affect clauses 3, 5.5, 7, 8, or 13.2 or any provision of this document which is expressly or by implication intended to come into force or continue on or after the termination or expiry.

 


6. Intellectual property

Subject to clause 6.3, the Supplier retains all right, title and interest in any Supplier Material and Project IP.

The Participant must co-operate and promptly do all acts and things and execute all documents which may be necessary or desirable for the purpose of vesting ownership of the Project IP in the Supplier.

 

Licence of Supplier Material and Project IP

The Supplier grants to the Participant a non-exclusive, revocable, non-transferrable, non-sub-licensable licence to use the Intellectual Property Rights in any Supplier Material solely to receive the benefit of the Services for the Participant’s own personal purposes and only during the Term.

Unless otherwise agreed, Project IP is Supplier IP and therefore Project IP is licensed by the Supplier to the Participant pursuant to clause 6.3.

The licence in clause 6.3 is immediately terminated on expiry or termination of this document.

Except to the extent expressly permitted by applicable law or the terms of this document, the Participant must not, and must not permit others to, use, copy, reproduce, adapt, merge with other software, modify, decompile, reverse-engineer, disassemble or translate all or any material the subject of the licences in clause 6.3.

 

Licence of Participant Material

The Participant grants to the Supplier a non-exclusive licence to exercise the Intellectual Property Rights in any Participant Material in connection with the Supplier providing Services to the Participant.

The licence granted under clause 6.7 includes the right to sublicense to third parties.

 

No use of the Supplier’s marks

Except as expressly set out in this document, the Participant must not, and must ensure that its officers, employees, agents and subcontractors do not, use the trade marks or logos of the Supplier without the prior written consent of the Supplier.

 

Third party infringement claims

If any third party claims the Supplier has infringed its Intellectual Property Rights by supplying the Services or in connection with the licences in clause 6.3, the Supplier may modify, limit, suspend or cancel the Services at the Supplier’s discretion.

 


7. Confidential Information

 

Obligations of confidence

Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this document, any Confidential Information of the other party provided to or obtained by that party before or after entry into this document.

 

Exclusions

The obligations of confidence in clause 7.1 do not apply to Confidential Information:

(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:

i. discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

ii. before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence;

(b) that is in the public domain except as a result of a breach of this document or other obligation of confidence; or

(c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

 

Restriction on disclosure

Subject to clause 7.5, each party may use and disclose Confidential Information of the other party only:

(a) with the prior written consent of the other party; or

(b) to that party’s directors, agents, professional advisors, employees, contractors and permitted subcontractors solely for the exercise of rights or the performance of obligations under this document.

If either party discloses Confidential Information under clause 7.3, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the Services under this document.

The Supplier may disclose the Participant’s Confidential Information to a third party for the purposes of selling any part of the Supplier’s business to that third party, or allowing that third party to consider investing in the Supplier.

 

Injunctive relief

Each party acknowledges that:

(a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and

(b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clause 7.

 


8. Limitation of liability

 

Limitation

Subject to clause 8.2, any liability of the Supplier for any loss or damage, however caused (including by the negligence of the Supplier), suffered by the Participant in connection with this document is excluded.

 

Liability for consumer guarantees

If the Competition and ConsumerAct 2010 (Cth) or any other legislation states that there is a guarantee in relation to any good or service supplied by the Supplier in connection with this document, and the Supplier’s liability for failing to comply with that guarantee cannot be excluded but may be limited, nothing in this agreement applies to limit that liability. Instead, the Supplier’s liability for that failure is limited to (at the election of the Supplier), in the case of a supply of goods, the Supplier replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, the Supplier supplying the services again or paying the cost of having the services supplied again.

 

Application to indemnities

For clarity and without limiting clause 8, the limitations and exclusions of liability in clause 8 apply to liability of the Supplier under any indemnity given by the Supplier under this document.

 


9. Privacy and Data Breach

The Participant must:

(a) comply with the Privacy Laws as if it were an entity regulated under the Privacy Laws; and

(b) not do any act, engage in any practice, or omit to do any act or engage in any practice that would result in a breach of the Privacy Laws if the Privacy Laws applied to those things done, engaged in or omitted to be done by the Participant.

If the Participant provides or makes available any Personal Information to the Supplier in connection with this document, the Participant must make all disclosures and obtain all consents necessary to allow the Supplier to collect, store, use, disclose and otherwise deal with the Personal Information lawfully in accordance with the Privacy Laws.

 


10. Dispute Resolution

If a dispute arises in connection with this document, the party that raises the dispute must give to the other party a notice containing details of the dispute and requiring its resolution under this clause (Dispute Notice).

Senior representatives of each party with authority to resolve the dispute must confer within 7 days after the Dispute Notice is given to try to resolve the dispute.

If the dispute is not resolved within 14 days after the Dispute Notice is given to the other party, the dispute will be submitted to Australian Disputes Centre for mediation in accordance with its then current Guidelines for Commercial Mediation. The mediation must be conducted in Brisbane.

The parties must comply with this clause before commencing legal proceedings.

This clause does not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a court which may be urgently required.

 


11. Costs and taxes

 

Costs payable by each party

Each party bears its own costs of the preparation and signing of this document.

 

Costs payable by the Participant

The Participant must pay:

(a) all stamp duty (including penalties and interest) assessed or payable in connection with this document; and

(b) subject to clause 11(a), all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this document.

 

GST

Any words capitalised in clause 11 and not already defined in clause 13.1 have the meaning given to those words in the GST Act.

Except under clause 11, the consideration for a Supply made under or in connection with this document does not include GST.

If a Supply made under or in connection with this document is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:

(a) the Recipient must pay the GST Act Supplier an amount equal to the GST for the Supply, in addition to, and in the same manner as the consideration otherwise payable under this document for that Supply); and

(b) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.

For clarity, the GST payable under clause 11.5 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.

If either party has the right under this document to be reimbursed or indemnified by another party for a cost incurred in connection with this document, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).

Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.

Where a Supply made under or in connection with this document is a Progressive or Periodic Supply, clause 11.5 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.

 


12. General

The laws of Queensland govern this document.

Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

Where the Supplier may exercise any right or discretion or make any decision under this document, the Supplier may do so in its absolute discretion, conditionally or unconditionally, and without being required to give reasons or act reasonably. This clause applies unless this document expressly requires otherwise.

The Participant must not assign, in whole or in part, or novate the Participant’s rights and obligations under this document without the prior written consent of the Supplier.

The Supplier may assign its interest under this document.

Time is not of the essence in the performance of obligations under this document except for performance of payment obligations.

Unless expressly stated otherwise, this document does not create a relationship of employment, trust, agency or partnership between the parties.

A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

This document supersedes all previous agreements about its subject matter. This document embodies the entire agreement between the parties.

To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this document.

Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this document.

The Supplier may subcontract the performance of all or any part of the Supplier’s obligations under this document.

The failure of a party to require full or partial performance of a provision of this document does not affect the right of that party to require performance subsequently.

A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

A right under this document may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

A variation to this agreement is only valid if it is in writing and signed by both parties.

 


13. Definitions and interpretations

 

Definitions

In this document:

Bankruptcy Act means the Bankruptcy Act 1966 (Cth).

Confidential Information of a party means the existence of and terms of this document and any information:

(a) about the business and affairs of that party;

(b) about the participants, clients, employees, sub contractors or other persons doing business with that party;

(c) shared between participants;

(d) which is by its nature confidential;

(e) which is designated as confidential by that party; or

(f) which the other party knows or ought to know, is confidential,

and all trade secrets, know how, financial information and other commercially valuable information of that party, and in the case of the Supplier, includes the Supplier Material and Project IP.

Corporations Act means Corporations Act 2001 (Cth).

Fees means the fees set out in the Agreement Details.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Act Supplier means the entity making the Supply.

Insolvency Event means any of the following events:

(a) a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;

(b) the party becomes bankrupt;

(c) a controlling trustee is appointed to the party, or over any of the property of the party;

(d) the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt agreement under part IX Bankruptcy Act;

(e) the party is unable to pay its debts when they become due and payable;

(f) the party ceases to carry on business; or

(g) any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.

Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of those rights.

Interest means interest on any payment owing under this document calculated:

(a) at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and

(b) daily from the date on which the payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.

Participant means the Participant specified in the Schedule.

Participant Material means any material or inputs provided by or to which access is given by the Participant to the Supplier for the purposes of this document including software, documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trade marks, logos, schedules and data stored by any means.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth.).

Privacy Laws means the Privacy Act 1988 (Cth.), the Spam Act 2003 (Cth.), any registered APP Code that binds a party, and any other Laws, industry codes and policies relating to the handling of Personal Information.

Program Period means the period set out as such in the Agreement Details.

Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156–5 GST Act.

Project IP means any Intellectual Property Rights created by or on behalf of the Supplier in connection with the Services.

Related Body Corporate has the meaning given to that term by section 9 Corporations Act.

Services means the personal coaching and other services that the Supplier may provide from time to time.

Supplier means the supplier specified in the Schedule.

Supplier Material means any material provided by or to which access is given by the Supplier to the Participant from time to time, for the purposes of this document including, documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.

Term means the term contemplated by clause 5.1.

Terms and Conditions mean the terms and conditions of this document.

 

Interpretation

In this document:

(a) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;

(b) a reference to this document includes the agreement recorded by this document;

(c) this document is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this document to protect itself; and

(d) a reference to a party is a reference to the Supplier or the Participant, and a reference to the parties is a reference to both the Supplier and the Participant.