Service Agreement

Terms and Conditions

1.       OVERVIEW

1.1     This Services Agreement is between the Service Provider and the Client.

1.2     The Service Provider provides coaching/Creative Arts Therapy services, and the Client wishes to enter into an agreement for these services and as specifically set out in the Proposal.

1.3     This Services Agreement consists of these General Terms & Conditions (T&Cs) and the Proposal along with any subsequent Proposal as agreed between the parties from time to time (Agreement).

1.4     The Proposal contains the specific information that is relevant to the Service Provider’s unique arrangement with the Client, and is designed to be read alongside the T&Cs.

1.5     If there is any inconsistency between the T&Cs and the Proposal, the content of the Proposal will prevail to the extent of the inconsistency. Subject to the nature of the Services being provided, additional Special Conditions may apply as set out in the Proposal.

1.6     Any variation to the Proposal must be mutually agreed upon in writing.

1.7     The Agreement will start on the Commencement Date and continue for the Term, unless terminated prior to that date in accordance with these Terms.

2.       CLIENT RIGHTS AND OBLIGATIONS

2.1     The Client acknowledges that they:

a)     have read and understood the T&Cs and the Proposal prior to signing the Agreement;

b)     are solely responsible for determining whether the Services are appropriate for them; and

c)      have sought professional and/or legal advice should require clarification on any aspect of the Agreement.

2.2     The Client further acknowledges, agrees and accepts that they:

a)     understand that the relationship is a professional relationship and does not extend to medical advice and the Client agrees to not use the Services to diagnose or treat any mental or physical health concern or issue and seek professional guidance independently as needed;

b)      will provide accurate and complete Client Information to the best of the Client’s knowledge and understanding;

c)     acknowledge that meaningful coaching/Creative Arts Therapy requires a commitment to the process, which may involve exploring and challenging existing beliefs, behaviours, and patterns, Client will communicate honestly, be open to feedback and suggestions, and fully engage with the Services to the best of their ability;

d)     are solely responsible for implementing any strategies and techniques discussed during provision of the Services and will complete any pre-session work or preparation as agreed with the Service Provider.  This may include reflective exercises, worksheets, or reading materials that may form the basis for session discussions;

e)      will make payments for the Services provided by the Service Provider as per the agreed upon rates and frequency set out in the Proposal;

f)     will ensure punctual attendance at all sessions that form part of the Services; and

g)     will comply with all the terms and conditions specified in this Agreement including specifically any rescheduling and cancellation policies as outlined in this Agreement.

2.3     The Client understands and accepts that the Service Provider cannot guarantee any specific outcome can be achieved as a result of engaging their services. Any examples of previous participants’ experiences, including reviews, testimonials or other statements, are provided for illustrative purposes only, and are simply examples of what can be possible. Personal results will vary depending on a variety of factors outside of the control of the Service Provider. 

SERVICE PROVIDER RIGHTS AND OBLIGATIONS

2.4     Service Standards and Professional Conduct

The Service Provider shall offer coaching/ Creative Arts Therapy services, utilising Creative Arts Therapy and/or Neuro Linguistic Programming coaching to the Client in accordance with the scope as set out in the Proposal.

The Service Provider shall always conduct themselves in a professional manner while providing the coaching services. This includes being punctual, respectful of the Client’s rights and providing the Services to a reasonable standard and of a reasonable quality consistent with industry best practices, and the Service Provider will actively engage in quality assurance processes to monitor and enhance service delivery.

2.5     Schedule and Key Dates

The Services including any sessions shall be provided on the specific days and times established during the initial consultation and specified in the Proposal or as otherwise agreed on by both parties in writing.

If Services outside the scope are required, these will be quoted separately at the Service Provider’s Hourly Rate.

3.       MUTUAL OBLIGATIONS

3.1     Each party agrees that:

a)     they will maintain valid and adequate insurance coverage during the term of this Agreement. The insurance coverage should be sufficient to protect against any claims that may occur during the provision of the Services;

b)     they will comply with all Applicable Laws;

c)      the other party will not be liable for any failure to carry out any obligation under this Agreement to the extent it is caused by the failure of the other party to comply with its obligations under the Agreement; and

d)     if delays occur for reasons beyond the parties’ control, such as due to a Force Majeure Event or the failure of third parties to meet their obligations, rendering the Key Dates in need of being rescheduled, the parties will use their best efforts to reschedule the Key Dates accordingly.

4.       FEES AND PAYMENT TERMS

4.1     Fees

All Fees will be payable via electronic funds transfer or credit card to the Service Provider’s nominated bank account within 7 days of receiving a Tax Invoice/on the Payment Dates set out in the Proposal. The Client will receive a Tax Invoice from the Service Provider prior to payment being due in each instance.

All amounts payable or other consideration provided in respect of amounts payable in relation to this Agreement are exclusive of GST unless otherwise stated. 

All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued). 

4.2     Expenses

The Client agrees to cover any out-of-pocket expenses incurred by the Service Provider in the course of delivering the Services. These additional expenses will be approved by the Client in writing prior to being incurred.

4.3     Increase in Hourly Rate

The Service Provider is entitled to vary their Hourly Rate during the Term on providing the Client with 14 days’ written notice. For the avoidance of doubt, this will not affect any Fee already agreed but may impact any future Services.

4.4     Additional Work Fee

If the Client engages the Service Provider to complete additional work (outside of the scope of the original Proposal) the Service Provider will issue the Client with an estimate of additional work fees, charged at the Hourly Rate. Once agreed by the Client, the Service Provider will issue the Client with a tax invoice for the additional work, payable within 7 days.

4.5     Recovery of unpaid Fees

If the Client does not pay the Service Provider any portion of the Fees within the stipulated timeframe, the Service Provider reserves the right to cancel any upcoming sessions and suspend further Services until the outstanding payment is settled.

If unpaid Fees are recovered through an external agency, the Client acknowledges that they will be responsible for the costs involved in the recovery.

5.       RESCHEDULING OR CANCELLATION BY CLIENT

5.1     Client Rescheduling

The Client may request to reschedule a sessions by providing written notice to the Service Provider at least 24 hours/days prior to the scheduled sessions. Notice of rescheduling must be sent via email or text message to the contact information provided by the Service Provider in the Proposal. The Service Provider will make best efforts to accommodate the Client's rescheduling request based on availability.

5.2     Client Cancellation

The Client may cancel any scheduled sessions without incurring any Fees by providing written notice to the Service Provider at least 24 hours/days prior to the scheduled sessions. Notice of cancellation must be sent via email or text message to the contact as set out in the Proposal.   

5.3     Cancellation Fee for Insufficient Notice

If the Client provides less than 24 hours notice for cancellation of a scheduled session, the Client may be liable to pay a cancellation fee. The cancellation fee shall be a reasonable pre-estimate of the actual losses incurred by the Service Provider due to insufficient notice of cancellation and shall not exceed 100% of the total cost of the scheduled session (Cancellation Fee).

5.4     Reasonableness of Cancellation Fee

The Cancellation Fee is deemed to be reasonable and proportionate to the actual losses incurred by the Service Provider in the event of cancellation, and it is not intended to operate as a penalty.

5.5     Clear Disclosure of Cancellation Fee

The Client acknowledges and agrees that the Cancellation Fee and the circumstances under which it may apply have been clearly disclosed in this Agreement.

5.6     Payment of Cancellation Fee

The Cancellation Fee shall be due and payable within 7 days of the cancelled appointment date.

6.       RESCHEDULING OR CANCELLATION BY SERVICE PROVIDER

6.1     Service Provider Rescheduling

The Service Provider may need to reschedule sessions due to unforeseen circumstances such as illness or scheduling conflicts. In such cases, the Service Provider will notify the Client as soon as possible and work with the Client to find an alternative session time.

6.2     Service Provider Cancellation

In the event of cancellation by the Service Provider, the Service Provider agrees to provide prompt notice to the Client and make reasonable efforts to find a suitable replacement for the Service Provider, if applicable. If a suitable replacement cannot be found, any payments made by the Client for the unfulfilled portion of the Services shall be refunded.

The Service Provider reserves the right to cancel or delay the provision of the Services if a Force Majeure Event prevents or significantly hinders the Service Provider from meeting their obligations under this Agreement. In such circumstances, the Service Provider shall not be deemed in breach of this Agreement.  In the event of a Force Majeure Event impacting the Service Provider, the Service Provider will promptly notify the Client and make reasonable efforts to reschedule the Services at a mutually agreeable time. The Service Provider shall not be liable for any losses, damages, or inconvenience caused by the Force Majeure Event.

6.3     The Service Provider reserves the right to cancel a session or withhold the Services if the actions of the Client (including any Employees) prevent or significantly hinder the Service Provider from safely and effectively providing the Services. If the Service Provider is unable to complete the Services or any portion of the Services due to the actions of the Client, the Client shall not be entitled to any refunds or compensation for the cancelled or uncompleted Services.

7.       REFUNDS

7.1     Refunds will be offered in accordance with both Australian Consumer Law and applicable state Fair trade legislation. The Service Provider is permitted to exercise their discretion in any circumstances where a refund of any fees already paid by the Client may be appropriate.   

7.2     Processing

Where it is determined that a refund is due, the Service provider will organise prompt payment via:

a)     the original payment method;

b)     third party payment provider Stripe; or

c)      as otherwise agreed between the parties.

Where a third party processor is required for the transaction, the Client acknowledges and agrees that transaction/processing fees may be deducted from the refund amount.

8.       INTELLECTUAL PROPERTY

8.1     Retained Intellectual Property

The Service Provider will retain sole ownership of all Intellectual Property Rights (including Moral Rights) in the Retained IP including any programs, courses and materials, whether created prior to or during provision of the Services. These materials are not to be used by the Client without the Service Provider’s express written permission. The client acknowledges and agrees that the Service Provider retains full ownership of any photos or recordings taken in accordance with clause 15 (including where a representative is authorised on their behalf).

8.2     Assignment of Intellectual Property

Upon receipt of full payment, ownership of the Assigned IP will automatically transfer to the Client, and the Service Provider shall promptly provide (if necessary) any documentation or transfer of rights to evidence such transfer at the Client’s expense.

8.3     Third Party Rights

The Client acknowledges that all Third Party Materials are the exclusive property of their exclusive owners, and where such materials are required to perform the Services, the Client agrees to pay the reasonable costs associated with their use.

8.4     Client provided Intellectual Property

For any intellectual property that the Client provide issues to the Service Provider during the Term of the Agreement, the Client warrants that they are the owner of this intellectual property and indemnify the Service Provider against any claim made by a third party arising out of any breach of intellectual property rights. 

8.5     Moral Rights

Each party must obtain written consent from individuals who hold Moral Rights for any materials they contribute under this Agreement. This ensures that the materials can be used in accordance with this Agreement and that the use of the materials by either party, its licensees, successors, or authorised individuals will not infringe anyone's Moral Rights.

8.6     Recognition

Wherever applicable, the Client agrees to credit the Service Provider with provision of the Services wherever reference to them may appear and ensure that any third party does the same.

8.7     This clause survives termination or expiry of this Agreement.

9.    WARRANTIES & INDEMNITIES

9.1  The parties warrant that they have full power, capacity and authority to enter into and perform their obligations under the Agreement.

9.2  The nature of certain Services means that the Service Provider is unable to guarantee particular results, and any examples of Services provided to or created for other clients is a representation of potential results only.

9.3  The parties agree that:

a)     except as set out in this Agreement, the Services are provided on an “as is” basis without representation, warranty or condition of any kind (either express or implied);

b)     all express or implied warranties, representations, statements, terms and conditions relating to the Agreement or its subject matter which are not contained in the Agreement, are excluded from the Agreement to the maximum extent permitted by law; 

c)      nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied by or imposed by any law (including statute or regulation) which cannot be lawfully excluded, restricted or modified;

d)     if any condition or warranty is implied into the Agreement and cannot be excluded and the Service Provider is able to limit the Client’s remedy for breach of such a condition or warranty, then the Service Provider’s liability is limited:

i. in the case of goods, to the replacing of the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired;

ii. in the case of services, to supplying the services again or the payment of the cost of having the services supplied again. 

9.4  Each party agrees to indemnify and hold harmless the other party, their respective affiliates, officers, directors, agents, and employees from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to any breach of this Agreement, negligent acts or omissions, wilful misconduct, by either party or their respective affiliates, officers, directors, agents, or employees.

9.5  The parties agree that:

a)     neither party will be responsible, liable or held in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is directly caused by the other party failing to comply with its obligations under the Agreement or negligence or misconduct of the other party or its employees, agents, guests, personnel or contractors; 

b)     each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement; and

c)      in no event will either party be liable to the other party for any Consequential Loss.

10.    LIMITATION OF LIABILITY

10.1  The liability of each party to the other party (including under indemnity) is mutually capped to:

a)     the amount of all Fees paid in connection with the Services provided under the Agreement in the 3 months preceding the liability event

and will be reduced to the extent that the other party's acts or omissions contribute to or cause the liability

10.2  This clause survives expiry or termination of this Agreement.

11.    CONFIDENTIALITY AND PRIVACY

11.1  Each party agrees that, unless it has the prior written consent of the other party, it will:

a)     keep the Confidential Information of the other party confidential at all times;

b)     ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and

c)      where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe.

11.2  These obligations of confidentiality do not apply to any disclosure that:

a)     is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b)     is required by Applicable Law; or

c)      relates to Confidential Information that is publicly available through no fault of the receiving party or was rightfully received from a third party without restriction and without the breach of any obligation of confidence.

11.3  Any Confidential Information supplied to the Service Provider that incorporates personal information will be dealt with in accordance with the Service Provider’s Privacy Policy, which is available on their website.

11.4  This clause survives termination or expiry of this Agreement.

12.    MARKETING AND PROMOTION

12.1  Testimonials 

The Client consents to the use of any testimonials, reviews, or feedback provided to the Service Provider for promotional and marketing purposes. The Client understands that these testimonials may be published on the Service Provider's website, social media platforms, marketing materials, and other promotional channels.

12.2  Recording

The Client consents to the recording of part or all of their sessions (in audio and/or video format) for the purposes of internal training and quality control, unless otherwise specifically communicated

Where express consent is sought by the Service Provider, the Client acknowledges that these recordings may be modified, published, reproduced or distribute at their discretion for the purpose of marketing and promotion. 

12.3  Anonymity and Privacy 

The Service Provider shall ensure that any images and testimonials used for promotional purposes shall be done so in a manner that maintains the Client's privacy. Personal information or identifying details will not be disclosed without the Client's explicit consent and dealt with in accordance with the Service Provider’s Privacy Policy.

12.4 Right to Withdraw Consent 

The Client has the right to withdraw their consent for the use of images and testimonials at any time. To do so, the Client must notify the Service Provider in writing, and the Service Provider will promptly cease the use of such materials for promotional purposes.