CLIENT ENGAGEMENT AGREEMENT
PARTIES
This Agreement is between:
Name: Courtenay Louise Polock(ABN 21262440594) trading as HER Exercise Physiology
Contact Address: 51 Klim Street, Killara vic 3691
Contact Name: Courtenay Polock
Contact Email: courtenay@herexercisephysiology.com.au
Contact Phone: 0420717986
(“HER Exercise Physiology”)
AND
The Client set out in the Reference Schedule
(“Client”)
BACKGROUND
HER Exercise Physiology provides live online consultations for health and rehabilitation, including initial health and medical assessments, exercise programs and training sessions.
The Client requires the services of HER Exercise Physiology.
HER Exercise Physiology has agreed to provide those services on the terms set out in this Agreement.
Item 1: Client Address - As specified by the Client under the "Your Info" section of the HER Exercise Physiology booking engine.
Item 2: Client Email - As specified by the Client under the "Your Info" section of the HER Exercise Physiology booking engine
Item 3: Client phone - As specified by the Client under the "Your Info" section of the HER Exercise Physiology booking engine
Item 4: Services - Virtual health Services
Item 5: Scope - The scope of the Services – including the duration and nature of the Services - is set out in the appointment description on the "Choose Appointment" tab of HER Exercise Physiology's booking engine, as selected by the Client from time to time.
Item 6: Fees - The Fees for the Services are set out in the appointment description on the "Choose Appointment" tab of HER Exercise Physiology's booking engine, as selected by the Client from time to time.
Item 7: Deposit - $249.00 Set up fee charged to the Client’s nominated credit or debit card immediately on signing up and booking the initial consultation.
Item 8: Payment - Initial payment charged to the Client's nominated credit or debit card immediately on booking their appointment, with the remainder of the Fees charged to the same card fortnightly thereafter for minimum terms of 12 weeks.
Item 9: Payment Terms - Deposit charged to the Client's nominated credit or debit card immediately on booking their appointment, with fortnightly payments of $165 charged to the same card for a total of 6 payments.
Item 10: Payment Method - Direct debit to nominated credit or debit card.
OPERATIVE PART
1. Engagement
This Agreement includes the terms and conditions contained in this document and incorporates by reference the scope of services, pricing and other details of our proposed engagement as outlined in the Reference Schedule (“Reference Documents”).
The offer contained in this Agreement is open for acceptance for 7 days from the date of issue.
The Client engages HER Exercise Physiology to perform the Services.
2. Term
This Agreement commences on acceptance, which occurs when the Client accepts the terms of this Agreement by ticking the ‘I agree’ checkbox (or taking a similar action), or otherwise digitally signing the Agreement using software made available by HER Exercise Physiology and HER Exercise Physiology receives the Deposit.
The term of this Agreement will commence from the date of acceptance of this Agreement until the obligations of each party to this Agreement have been extinguished, unless terminated earlier in accordance with the terms of this Agreement.
3. Scope of Services
HER Exercise Physiology will provide the Services to the Client in accordance with the Scope.
Any modifications to or expansions of the Scope will only be effective if agreed in writing.
4. Fees and Expenses
The Client agrees to pay the Fees to HER Exercise Physiology.
The Fees are inclusive of GST, unless otherwise advised.
5. Payment Terms
The Client agrees to pay the Fees in accordance with the Payment Terms and Payment Method.
If the Client fails to pay any amounts in accordance with this Agreement after 7 days from the due date, HER Exercise Physiology may (in its absolute discretion) refer the matter to a debt collection agency or solicitor and the Client will be liable to pay any costs HER Exercise Physiology incurs or becomes liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.
6. Client Responsibilities, Warranty and Indemnity
The Client must:
arrange for payment of all Fees and Additional Amounts without deduction or set-off;
provide HER Exercise Physiology with clear and timely instructions regarding the Services, including honestly disclosing all medical and health history before an initial consultation and updating us if there are changes; and
work collaboratively with HER Exercise Physiology, including by responding to requests, including by providing all relevant information, in a timely manner.
Please note that any delays in complying with the above will hinder HER Exercise Physiology's ability to start or progress delivery of the Services and may impact on HER Exercise Physiology's ability to meet any agreed deadlines. HER Exercise Physiology will not be liable for any such delays, including delays in delivery of the Services, while any amounts due under this Agreement are outstanding.
The Client warrants to HER Exercise Physiology they have completed the relevant initial screening form(s) and to the best of their knowledge and belief all information and documents provided are complete and accurate.
To the maximum extent permitted by law, the Client indemnifies HER Exercise Physiology on a continuing basis in respect of any breach of the warranties set out in this clause.
7. Works Standard and No Warranties
HER Exercise Physiology will deliver the Services in a professional manner, in good faith, with all requisite care and skill.
Other than any warranties or guarantees to which the Client may be entitled to pursuant to the Australian Consumer Law or any other law, all other warranties and guarantees in relation to the Services are specifically excluded and any term or condition which would otherwise be implied into this Agreement is excluded.
The Client warrants that it has not relied on any warranty, guarantee or representation given by HER Exercise Physiology in entering into this Agreement.
8. Non-disparagement
The Client acknowledges that HER Exercise Physiology has established a valuable reputation and goodwill in Australia in the exercise physiology industry. Subject to law and its rights in connection with the enforcement of this Agreement, the Client may not at any time:
disparage, permit or authorise the disparagement of HER Exercise Physiology, any of its related entities or any director, officer, employee, agent, consultant or adviser of HER Exercise Physiology or of its related entities; or
otherwise make, permit or authorise the making of any statement in anyway relating to or connected with any matters in dispute which is calculated or is reasonably likely to cause damage toHER Exercise Physiology, any of its related entities or any director, officer, employee, agent, consultant or adviser of HER Exercise Physiology or its related entities (including damage to their respective reputations).
This clause survives termination of this Agreement.
9. Promotion
Subject to compliance with the confidentiality provisions of this Agreement, the Client consents to HER Exercise Physiology using the following to promote its business:
the Client's name;
an image or likeness of the Client; and
evidence of services rendered to the Client..
The Client grants to HER Exercise Physiology a worldwide, royalty-free, revocable licence of its Intellectual Property Rights in the items listed above for the limited purpose of promotion of HER Exercise Physiology's business.
Promotion may include (but is not limited to)publishing photographs regarding the Serviceson awebsite, social media pages, brochures and other marketing material (whether digital or print).
10. Confidentiality
The parties recognise that it may be necessary during the term of this Agreement to reveal Confidential Information to each other. Each party agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which they have obtained, except as authorised by the other party or as required by law and will undertake reasonable commercial measures to maintain the confidential nature of the Confidential Information, including the signing of reasonable non-disclosure agreements by personnel of either party on request.
This clause survives termination of this Agreement.
11. Intellectual Property
Provider IP retention All Intellectual Property created by HER Exercise Physiology in the course of this Agreement will be the exclusive and sole property of HER Exercise Physiology, together with any derivatives of the Intellectual Property. The Client is expressly prohibited from providing copies of any materials to you to any other person and understands and agrees that such an action would amount to a breach of HER Exercise Physiology's Intellectual Property Rights, entitling HER Exercise Physiology to take immediate action to enforce its rights.
12. Limitation of Liability and Indemnity
Nothing in this Agreement is intended to exclude any right or guarantee to which any party is entitled under the Australian Consumer Law.
Limitation of Liability for Services under Australian Consumer Law
Where the Services fall within the scope of the Australian Consumer Law, HER Exercise Physiology's liability to the Client is limited to the fullest extent permissible by law. To the maximum extent permissible by law, HER Exercise Physiology excludes liability for negligence and for consequential loss or damage, including loss of business profits or reputational damage.
Nothing in this Agreement is intended to exclude any right or guarantee to which any party is entitled under the Australian Consumer Law.
Limitation of Liability for Services outside the Australian Consumer Law
If the services do not fall within the scope of the Australian Consumer Law, HER Exercise Physiology excludes all liability to the Client (including for negligence and consequential loss or damage, including loss of business profits or reputational damage), however arising.
Nothing in this agreement is intended to exclude any right or guarantee to which any party is entitled under the Australian Consumer Law.
Release and Waiver of Liability by Clients in the United States of America and Canada
The Client undertakes to HER Exercise Physiology that they:
have carefully read this agreement and this clause; and
fully understood its contents; and
are aware that this is a release of liability in favour of HER Exercise Physiology
The Client is aware that voluntary participation in exercise and rehabilitation programs may involve physical activities that could potentially lead to injury or even death.
The Client undertakes that they are voluntarily participating in these activities with knowledge of the danger involved and agree to assume any and all risks of bodily injury death, property damage, or other loss, whether those risks are known or unknown.
The Client expressly assumes the risks associated with their participation in this program.
The Client certifies that they are fully capable of participating in this activity and assume and accept full responsibility for themselves (including any minor children in their care, custody and control) for bodily injury, death, or loss of personal property and expenses as a result of those inherent risks and dangers not specifically identified, and as a result of the Client's own negligence in participating in this activity.
The Client hereby waives, releases and forever discharges HER Exercise Physiology from any and all claims they may have now or arising in the future related to their participation in this activity and their use of any equipment supplied by HER Exercise Physiology.
The Client covenants and agrees not to sue HER Exercise Physiology for any such claims.
The Client hereby waives, releases and forever discharges HER Exercise Physiology from all of the following (the "claims"): any and all claims, liabilities of every kind, demands, damages (including direct, indirect, incidental special and/or consequential), losses (economic and non-economic), and causes of action, of any kind or nature, which the Client has or may have in the future (including court costs, attorneys' fees and litigation expenses), that may arise out of, result from, or relate to the participation in this activity.
The Client understands and acknowledges that these Claims include, but are not limited to, causes of action for death, personal injury, partial or permanent disability, negligence, and property damage or theft; causes of action relating to the provision of first aid, medical care, medical treatment, or medical decisions; and claims for medical or hospital expenses, including medical transportation services.
The Client understands and agrees that the foregoing waiver, release and discharge applies even if the Claims are caused by the negligent acts, omissions, or carelessness of HER Exercise Physiology.
The Client understands that this waiver, release and discharge operates for themselves as well as on behalf of their spouse, children, parents, guardians, heirs, next of kin and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sure on the Client's behalf.
The Client further agrees to indemnify and hold harmless HER Exercise Physiology from any claims which the Client might make or which might be made on the Client's behalf by others or which might be made against the Client by others, arising from the Client's participation in the activities provided by HER Exercise Physiology.
Nothing in this clause excludes any right or guarantee to which the Clients may be entitled under the Australian Consumer Law.
13. DISCLAIMER
Exercise programs are developed for you based on your individual needs and the health and medical information you have disclosed to us. Failure to provide sufficient health and medical history regarding diagnoses or injury may compromise our ability to develop safe programs and/or your ability to safely complete our programs. To the maximum extent permissible by law, we will not be liable for negligence, consequential loss or damage if you are injured as a result of a failure to disclose relevant health and medical information to us.
You understand that you engage in our program at your own risk and are aware that participating in our exercise program may result in injury, or exacerbation of an underlying health condition. Failure to follow the program as directed by us, or advancing in the program prematurely may result in harm.
14. Refunds
In addition to HER Exercise Physiology's obligations at law, HER Exercise Physiology also offers the following refund policy: any Deposit paid in respect of a future session is non refundable.
15. Credit
If for any reason HER Exercise Physiology agrees to grant you credit, the grant of credit is subject to the terms of this Agreement and applicable legislation. To the extent of any inconsistency, the terms provided for in applicable legislation prevail where HER Exercise Physiology are not permitted to vary the terms by agreement. Where legislation provides that HER Exercise Physiology may vary the terms by agreement, the terms of this Agreement prevail.
Credit must be redeemed within 12 months from the date of issue and will expire after this date. It will then be unable to be redeemed, replaced or refunded.
Credit is non-transferable and is not redeemable for cash under any circumstances, including any partial balance remaining after redemption.
16. Termination
Either party may terminate this Agreement on 24 hours' written notice to the other party.
17. Consequences of Termination
If this Agreement is terminated, all rights and obligations accrued up to the date of the termination (including, in particular, your obligation to pay Fees and Expenses) are not affected, unless otherwise set out in this clause.
If this Agreement is terminated, the parties agree to return all property of the other party(including information, materials, designs, data, documents, access details and the like) in their possession to the rightful owner within a reasonable time of termination.
If the Client terminates this Agreement, HER Exercise Physiology agrees to refund any Deposit paid in respect of an appointment booked outside of the 24-hour notice period.
This clause and any other clause which by its nature is intended to survive termination, will survive termination of this Agreement.
18. Dispute Resolution
If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.
The party claiming the dispute must first inform the other party in writing of the following:
the nature of the dispute;
the outcome they desire to resolve the dispute, and
the action they believe will settle the dispute.
On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 20 Business Days.
If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Victoria appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation. HER Exercise Physiology agrees that, on request by the Client, it will give consideration to virtual mediation and will consent to the mediation being held virtually unless it determines, acting reasonably, that virtual mediation is unsuitable. Failing an agreement to attend virtual mediation, the mediation must be held in the capital city of Victoria in Australia, unless otherwise agreed in writing.
All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
This clause survives termination of this Agreement.
19. JURISDICTION
Governing law
The law of Victoria governs this Agreement.
Exclusivity
Each of the parties to this Agreement irrevocably agrees that the courts of Victoria will have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement or its formation or validity and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Victoria.
20. GENERAL
The following additional terms and conditions apply to this Agreement:
Counterparts Cooperation Each party must do anything necessary or desirable (including executing any relevant agreements) to give full effect to this Agreement and the transactions contemplated by it.
Time of the essence Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.
Provider assignment permitted HER Exercise Physiology may assign or otherwise transfer its obligations under this Agreement on notice to the Client.
Client assignment not permitted The Client must not assign, transfer, charge, encumber or otherwise deal with any of its rights or obligations under this Agreement, or attempt or purport to do so, without HER Exercise Physiology's prior written consent.
Provider subcontracting permitted HER Exercise Physiology may sub-contract one or more aspects of the Services, provided always that HER Exercise Physiology will remain the head contractor and will be responsible for the delivery of Services in accordance with this Agreement.
Relationship of parties The parties acknowledge that this Agreement is intended as an agreement for the provision of services and creates the relationship of principal and contractor and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
Entire agreement This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this Agreement.
Severability If anything in this Agreement is unenforceable, illegal or void, it is severed, and the rest of the Agreement remains in force.
Waiver Any waiver by any party to a breach of this Agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
Force majeure Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, other extreme weather event or natural disaster, riot, strike, act of war, terrorist attack, nuclear event, pandemic, epidemic, widespread contagion, quarantine restriction, critical infrastructure failure, severe disruption to virtual infrastructure, restriction or prohibition or any other action by any government or semi government authority, or major injury or illness of key personnel.
Variation Any amendment or variation to this Agreement (such as a change to the Services to be provided) is not effective unless it is agreed in writing by both parties (including via email), unless otherwise set out in this Agreement.
Governing law Notices A notice required to be given to a party under this Agreement must be in writing and delivered to that party in one of the following ways:
delivered personally;
posted to their address, when it will be treated as having been received on the second Business Day after posting; or
sent by email to their last-notified email address, when it will be treated as received when it enters the recipient’s information system or otherwise when the recipient confirms receipt, whichever occurs first.
21. INTERPRETATION
In the interpretation of this Agreement:
References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement;
Grammatical forms of defined words or phrases have corresponding meanings;
Parties must perform their obligations on the dates and times fixed by reference to VIC, Australia;
Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
References to a party are intended to bind their executors, administrators and permitted transferees; and
Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
12. DEFINITIONS
The terms in this clause have the following meanings, unless the context indicates otherwise:
Additional Amounts: means any other amount which becomes due and owing to HER Exercise Physiology under this Agreement, including but not limited to interest or merchant fees.
Agreement: means this Agreement between HER Exercise Physiology and the Client.
Australian Consumer Law: means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day: means a day on which banks are open for business in VIC, other than a Saturday, Sunday or public holiday.
Confidential Information: refers to any data or information relating to HER Exercise Physiology or the Client, whether business or personal, written or oral and regardless of how or when it was provided to the other party, which would reasonably be considered to be private or proprietary to HER Exercise Physiology or the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to HER Exercise Physiology or the Client, and includes the terms of this Agreement (except to the extent that disclosure of the terms is necessary for the purpose of legal or financial advice).
Deposit: means the sum specified as a deposit in the Reference Documents, if any.
Expenses: means the expenses set out in the Reference Documents, if any.
Fees: means the fees set out in the Reference Documents.
GST: includes any event which indicates that the party in question is unable to pay their debts as they fall due, including any of the following events:
becoming unable to pay debts as they fall due;
an act of bankruptcy;
enter into a composition or arrangement with creditors;
levied by creditors, debenture holders or trustees under a floating charge;
institution of any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in winding up (except for the purposes of reconstruction);
making of a winding up order; and
appointment of an official manager, receiver, receiver/manager, provisional liquidator or liquidator, but does not include a transfer of ownership.
Intellectual Property: means any works or materials to which Intellectual Property Rights attach, including any works created by HER Exercise Physiology in the course of this Agreement.
Intellectual Property Rights: means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of Confidential Information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration, and all digital and electronic rights.
Payment Method: means the method of payment by which the Client may pay amounts due to HER Exercise Physiology under this Agreement, as set out in the Reference Documents.
Payment Terms: means the terms of payment, including time for payment, that apply to payments to be made under this Agreement, as set out in the Reference Documents.
Reference Documents: means the Reference Schedule.
Reference Schedule: means the schedule which appears on the second page of this Agreement.
Scope: means the scope of Services to be provided to the Client under this Agreement, as set out in the Reference Documents.
Services: means the online consultations for health and rehabilitation. services as described in the Reference Documents.
Signed by Courtenay Louise Polock (ABN 21262440594) trading as HER Exercise Physiology:
