These terms (“Terms of Service”) set out the terms on which Toni Lee Tuner (ABN 74 933 464 483) trading as The Business Planner (the “Consultant”) agrees to provide the Services including the Mastermind Program (as defined below) to you (the “Client”). Other terms and conditions contained in the privacy policy (“Privacy Policy”) and elsewhere on the Website (including the Disclaimer) also form part of the agreement with you.

Please carefully read these Terms of Service including the Disclaimer contained on the Website. By (a) accepting these Terms of Service; or (b) providing instructions to the Consultant with respect to the Services; or (c) paying any amount to the Consultant in respect to the Services; or (d) accepting or proceeding with the Services, you agree to be bound by these Terms of Service, the Disclaimer and all other policies. 

The Consultant reserves the right to update and change these Terms of Service from time to time without notice. Continued use of the Services by you after any such changes shall constitute your consent to such changes. 

• 1. Engagement

The Client engages the Consultant to provide the Client with the Services during the Term in accordance with these Terms of Service. 

• 1. Provision of SERVICES

The Services include:

• 1. Mastermind Program

Subject to fulfilment of the Client’s obligations under these Terms of Service, the Consultant agrees to provide the Client with a 6 week Mastermind Program in accordance with these Terms of Service.

The Mastermind Program includes:

• 1. 1. Week 1 – Master planning session for 2 hours.
     2. Weeks 2 to 5 – 2 hours of coaching each week (or some other amount as agreed between the parties).
     3. Week 6 – Master planning session for 2 hours.

Full details of the Mastermind Program as well as inclusions and any exclusions will be as specified on the Website at the time the Client signs up for the Mastermind Program. If the Client requires more than 6 hours per week as allocated during weeks 2 to 5 then this is to be discussed with the Consultant during the first master planning session. 

Additional hours for all weeks may be requested by the Client and will incur additional costs as set out on the Website. The Consultant may accept or reject the Client’s request to provide additional hours at their discretion. 

Please note that the Client’s enrolment in the Mastermind Program is subject to availability. In the event the Mastermind Program is fully booked, the Consultant will get in contact with the Client to organise an alternative.

• 1. V.I.P VA Package  

Subject to fulfilment of the Client’s obligations under these Terms of Service, the Consultant agrees to provide the Client with the V.I.P VA Package in accordance with these Terms of Service. 

The Client will provide the Consultant with the information and documents required for the Consultant to perform the service, including a job description.   

The Consultant will then provide a short-list of up to 5 virtual assistants candidates to the Client for interview (VA Service). 

The Client is responsible to organise and conduct the interviews with any candidates direct. 

Should they choose to engage any of those candidates, then the Client is responsible for all reference checks, contract negotiation, engagement contract, onboarding and training. 

The Client acknowledges that the Consultant will not provide any employment contract and will not provide any advice in relation to employment contracts. 

The Client acknowledges that the Consultant is only engaged to provide suitable candidates to the Client and is not responsible for any of the interview process, reference checking or determining whether the candidate is suitable for the role required by the Client. 

If, after being provided with the VA Service, the Client does not hire any of the proposed candidates, the Consultant will provide the VA Service a further 2 times. 

• 1. D.I.Y VA Package with Mentoring

Subject to fulfilment of the Client’s obligations under these Terms of Service, the Consultant agrees to provide the Client with the V.I.P VA Package with Mentoring in accordance with these Terms of Service.

V.I.P VA Package with Mentoring provides the Client with a 12-month membership. 

The Client will provide the Consultant with the information and documents required for the Consultant to perform the service, including a job description.   

The Consultant will then provide a short-list of up to 5 virtual assistants candidates to the Client for interview (VA Service). 

The Client is responsible to organise and conduct the interviews with any candidates direct. 

Should they choose to engage any of those candidates, then the Client is responsible for all reference checks, contract negotiation, engagement contract, onboarding and training. 

The Client acknowledges that the Consultant will not provide any employment contract and will not provide any advice in relation to employment contracts. 

The Client acknowledges that the Consultant is only engaged to provide suitable candidates to the Client and is not responsible for any of the interview process, reference checking or determining whether the candidate is suitable for the role required by the Client. 

The V.I.P VA Package with Mentoring includes 12, one-hour zoom sessions with the Consultant over the course of the 12-month membership. Full details of the V.I.P VA Package with Mentoring will be as specified on the Website at the time the Client signs up for the package. See further below for further terms in relation to the 12, one hour zoom sessions.

During the 12-month membership, the Consultant will provide the VA Service up to 3 times. 

At the end of the 12-month membership, should the Client wish to extend the membership, they may do so by paying the full membership fee for a further 12-month membership and they will receive another 12, one-hour sessions and the Consultant will provide the VA Services up to a further 3 times.

• 1. D.I.Y VA Package and D.I.Y VA Package with Mentoring

Subject to fulfilment of the Client’s obligations under these Terms of Service, the Consultant agrees to provide the Client with the D.I.Y VA Package or the D.I.Y VA Package with Mentoring in accordance with these Terms of Service.

Full details of the D.I.Y VA Package and the D.I.Y VA Package with Mentoring will be as specified on the Website at the time the Client signs up for the package. 

The D.I.Y VA Package with Mentoring provides the Client with a 12-month membership.

The D.I.Y VA Package with Mentoring includes 12, one-hour zoom sessions with the Consultant over the course of the 12-month membership. See further below for further terms in relation to the 12, one hour zoom sessions. 

Regarding the D.I.Y VA Package with Mentoring, at the end of the 12-month membership, should the Client wish to extend the membership, they may do so by paying the full membership fee for a further 12-month membership and they will receive another 12, one-hour sessions.

 

• 1. Additional programs

The Consultant may offer additional programs to the Client from time to time, such as social media packages. The details of such additional programs, including fees will be as set out on the Website at the time that the Client signs up for such programs.

• 1. Term 

These Terms of Service commence on the Commencement Date as specified on the Website and continue unless and until the Service is completed or it is terminated earlier in accordance with these Terms of Service.

• 1. Acknowledgement

The Client acknowledges and agrees that:

• 1. 1. the Client participates in the Services solely at its own risk;
     2. the Consultant provides support, guidance and tools for the Client to set goals, determine priorities and achieve results, but any action or decision the Client makes, and the consequences that flow from such action or decision including structures, is the Client’s sole responsibility (the Consultant will not be accountable for any action or decision the Client takes). The Client’s success depends on many factors, including their dedication, participation, desire, and motivation; and
     3. it has read, understood and agrees to the Disclaimer as incorporated by clause 13.

 

• 1. PAYMENT FOR THE SERVICES
     1. Fees

In consideration for the Consultant performing the Services, the Client agrees to pay the Consultant the fees and any other charges in the amounts and in the manner as specified on the Website at the time the Client signs up for the Services.

The fees for the V.I.P VA Package are $1,200 (including GST). 

The fees for the V.I.P VA Package with Mentoring are $4997 (inclusive of GST) which can be paid as a single upfront payment or paid in 12 monthly payments of $525 (inclusive of GST/exclusive of GST)?.

• 1. Payment 

The Client agrees to make payment of the fees in accordance with the method selected on the Website. Where payment is due upfront, then payment must be made a minimum of 2 days prior to the commencement of such programs.

The Consultant shall invoice the Client for such fees and the Client agrees to pay each invoice in accordance with the due date as specified on the invoice and the payment method chosen on the Website. 

• 1. Late Payment

If the Client fails to pay any amount when due under these Terms of Service, the Client acknowledges that the Consultant may in its discretion:

• 1. 1. suspend the provision of the Services to the Client 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 Client because of this; and/or
     2. charge the Client a $45 administration fee with an additional amount equal to 15% of the remaining balance, each two weeks until the date of actual payment of all amounts owed.
  2. Additional hours

Mastermind Program

If the Client requires the Consultant for additional hours outside the hours allocated under the Mastermind Program then additional fees will apply as stated on the Website and will be payable. 

D.I.Y VA Package with Mentoring and V.I.P VA Package with Mentoring

For every additional hour the client requires the Consultant, outside the 1 hour allocated under the relevant package, subject to the Consultant’s availability, then an additional fee of $197 (including GST) per additional hour will apply. 

• 1. 1. General
        1. All fees must be paid into the bank account nominated by the Consultant or by any other means specified by the Consultant (including through third party payment providers such as stripe). 
        2. The Client 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.
        3. The Consultant reserves the right to charge a small administrative fee in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
        4. Unless otherwise stated, all fees are exclusive of GST. The Client 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.
  2. sessions

Mastermind Program

• 1. Each session provided for in the Mastermind Program will take place at the location as specified by the Consultant and at a time as agreed between the parties (a minimum of 2 hours each week will be worked from the Consultant’s office). The Client will be granted access to the Consultant’s calendar where they will be able to view available sessions and choose their time. All session times are subject to availability and confirmation by the Consultant. Additional sessions will be charged an additional fee as stated above.
  2. If the Client shows up late to a session but within 15 minutes of the commencement of the session, the Consultant will be available until the allocated session time ends. Although the session may be shorter, this will be deemed a full session.
  3. If the Client fails to attend a session (including a rearranged session), or shows up more than 15 minutes late, that session will be forfeited, subject to the Consultant agreeing to reschedule the session (which it may choose to do in its sole discretion). All changes to sessions are subject to the Consultant’s approval and subject to availability.
  4. The Client is permitted to reschedule any session only once at no charge to the Client. If the Client wishes to reschedule the session again then a further fee of $299 + GST will be charged.
  5. The Consultant will document the hours that it will be providing the Services. Hours allocated for sessions do not roll over each week. Any sessions the Client fails to book or attend within each week (by close of business Friday of each week) of the Mastermind Program will be forfeited.
  6. The Consultant reserves the right to reschedule sessions where necessary. Although the Consultant will make every effort to accommodate the Client at their preferred time, please note this may not be possible. The Consultant will attempt to provide the Client with advance notice should their session need to be rescheduled.

V.I.P VA Package with Mentoring and D.I.Y VA Package with Mentoring

• 1. 1. Each session provided for in the V.I.P VA Package with Mentoring and D.I.Y VA Package with Mentoring will take place via a Zoom video conference at a time as agreed between the parties. All session times are subject to the Consultant’s availability and confirmation by the Consultant. 
     2. If the Client wishes to cancel a session and reschedule it, the Client must provide the Consultant 24 hours’ notice otherwise that session will be forfeited. All changes to sessions are subject to the Consultant’s approval and subject to availability.
     3. If the Client shows up late to a session but within 30 minutes of the commencement of the session, the Consultant will be available until the allocated session time ends. Although the session may be shorter, this will be deemed a full session. 
     4. 4.10.If the Client fails to attend a session under any package (including a rearranged session), or shows up more than 30 minutes late, that session will be forfeited, and no refunds will be available. 
     5. 4.11.The Client can book its allocated 12, one-hour sessions over the 12-month membership period from the Commencement Date of the Services. Any sessions the Client fails to book or attend by the end of the 12 months will be forfeited and no refunds will be available for forfeited sessions.   
     6. 4.12.The Consultant reserves the right to reschedule sessions where necessary. Although the Consultant will make every effort to accommodate the Client at their preferred time, please note this may not be possible. The Consultant will attempt to provide the Client with advance notice should their session need to be rescheduled.
  2. access to program materials 
     1. The Client acknowledges that as part of the Services, the Client will gain access to Program Materials. Such access is granted in accordance with the terms of these Terms of Service.
     2. Subject to the Client fulfilling its obligations under these Terms of Service, the Consultant grants the Client a revocable, non-exclusive, non-assignable nor transferable licence to access and use the Program Materials during the Term, solely for the purpose of obtaining the benefit of the Services. 
     3. The Client 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.
     4. Access to the Program Materials may involve an online account. The Client is responsible for the security of its account details and is responsible for any actions taken on the account. The Client is responsible and liable for all activities and action of its Personnel and must ensure its Personnel comply with the terms of this licence.
     5. Where this licence is granted to sub-licence to the Personnel of the Client, the Client acknowledges that such licence is subject to the Client fulfilling their obligations under these Terms of Service (including without limitation those requirements under clause 11 as they relate to the Client).
     6. The Client must not without the prior written consent of the Consultant:
        1. sub-licence, assign or novate the benefit or burden of this licence in whole or part (except as permitted);
        2. allow the intellectual property to become subject of any charge, lien or encumbrance; 
        3. 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
        4. deal in any other manner with any or all of its rights and obligations under this licence.
  3. Intellectual Property Rights
     1. The Consultant Intellectual Property Rights
        1. The Client 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 (and must ensure that its Personnel do not):
           1. take or permit or omit any action which would or might:
              1. invalidate or put in dispute the Consultant’s title to the Intellectual Property or any part of it;
              2. 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);
              3. support any application to remove or undo the Consultant’s title in the Intellectual Property or any part of it; or 
              4. assist any other person directly or indirectly in any of the above;
           2. 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. 
        2. To the extent necessary to give effect to this clause, assigns all of the Intellectual Property Rights in such Intellectual Property to the Consultant.
        3. Other than as expressly stated in these Terms of Service, neither the Client or the Client’s Personnel have any right, title or interest or Intellectual Property Rights whatsoever in the Intellectual Property.
        4. 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 Client.
     2. Photography and reviews

The Client grants the Consultant:

• 1. 1. a non-exclusive and irrevocable licence to use the Client’s name, logo and likeness, along with any material or text that documents the success of the Client from the provision of the Services (including any comments provided by the Client) solely for the purpose of publicising or marketing the works in promoting the Consultant (this includes adding such materials within testimonials);
     2. the irrevocable right and permission to film, videotape, photograph and/or otherwise record the Client during the provision of the Services and to reproduce, publish, distribute, display, broadcast, exhibit and/or use in any other way the Client’s image, likeness, photograph, name, statements or any other information identifying the Client in whole or part for any purpose whatsoever in connection with the Services and these Terms of Service;
     3. the irrevocable right and permission to contact customers and suppliers of the Client to follow up with clients for reviews, testimonials and referrals.
  2. Warranties

The Client warrants that:

• 1. 1. 1. neither it, nor the Client’s Personnel, has 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
        2. neither it, nor the Client’s Personnel, is aware of any use by any third party of any of the Intellectual Property or Intellectual Property Rights in the Intellectual Property. 
  2. Relationship and authority
     1. The parties acknowledge that:
        1. the Consultant is engaged by the Client as an independent contractor and nothing in these Terms of Service creates or constitutes a relationship of employer and employee, principal and agent, trustee and beneficiary or of partnership or joint venture between the parties; and
        2. the Consultant provides the Services to the Client on a non-exclusive basis, and is free to provide its services to third parties during the Term.
     2. The Client authorises the Consultant:
        1. to contact the Client’s customers and suppliers on its behalf; 
        2. make representations, warranties and/or undertakings on the Client’s behalf; and
        3. hold itself out as having authority to act on behalf of the Client,

to the extent necessary to provide the Services. The Client acknowledges and agrees that the Consultant will not be responsible for any negative outcome that may arise from the Consultant representing and/or acting on behalf of the Client, except to the extent that such negative outcome is caused by the negligent act or omission of the Consultant.

• 1. Client obligations
     1. During the delivery of the Services the Client must:
        1. attend all sessions on time and attend daily and weekly check ins (if applicable). The Client should give their full attention to the Services during this time;
        2. be respectful to the Consultant;
        3. keep the Consultant informed of any medical health or personal circumstances that may interfere with the Services;
        4. be responsible for their own results, which includes proactively asking for support, scheduling sessions and using any program benefits; 
        5. stay committed to the Services during the Term; and
        6. honour the relationship between the Client and the Consultant, by being direct, truthful and open so the parties can work together.
     2. The Client will be given a Code of Conduct prior to commencement of the Services. The Client agrees to comply with such Code of Conduct.
  2. Referral program
     1. The Consultant offers the Client the following referral program for referrals made by the Client to prospective customers to participate in the Mastermind Program.
     2. For each Effective Referral (as defined in clause 9.3) of a prospective customer that the Client makes to the Consultant, the Consultant agrees to pay the Client a referral fee of $200+GST. Such payment will be deposited into the Client’s nominated bank account within 30 days of the referral becoming an Effective Referral. 
     3. A referral will be an Effective Referral if:
        1. there is a formal introduction by the Client of a prospective customer to the Consultant that results in the prospective customer signing up to the Mastermind Program;
        2. such prospective customer completes their 6 week Mastermind Program; and  
        3. the Consultant receives payment in full from the prospective customer; and 
        4. that referral is not a Rejected Referral (as defined in clause 9.4).
     4. A referral will be a Rejected Referral if:
        1. the Client is not the effective cause of the introduction of the prospective customer to the Consultant;
        2. the referral is not made in satisfaction of all of the provisions required for the referral to be an Effective Referral;
        3. the Consultant has been introduced, or has had business with (in any way) a prospective customer in the previous 5 years (from the date of the referral); or
        4. the prospective customer is refused, in the Consultant’s sole discretion, based on business grounds.
     5. In the event the Consultant is required to give a prospective customer a refund of any amount in respect of which a referral fee was paid to the Client, then the Client will, within 7 days of notice in writing from the Consultant refund to the Consultant the amount that represents the referral fee so paid (to the extent of such refund paid to the prospective customer).
  3. Cancellations and refunds
     1. 10.1.To the extent permitted by law, if the Client wishes to cancel the Mastermind Program or the Services in whole or part, refunds will only be given in accordance with this clause.
     2. 10.2.If the Client gives notice to the Consultant that it wishes to cancel the Mastermind Program, the V.I.P VA Package, the V.I.P VA Package with Mentoring, D.I.Y VA Package, the D.I.Y VA Package with Mentoring, or other Service prior to the end of the second week from commencement of that service, the Client will be entitled to a refund of all fees paid, except for a $200 + GST administration fee. 
     3. 10.3.If the Client cancels the Mastermind Program, the V.I.P VA Package, the V.I.P VA Package with Mentoring, D.I.Y VA Package, the D.I.Y VA Package with Mentoring or other Service,  after the end of the second week, then no refund will be provided to the Client.  
     4. 10.4.Upon acceptance of the Client’s enrolment, the Consultant allocates resources to the project and commits a significant amount of time to the provision of the Mastermind Program or any other Services. Given the fact that enrolment places are limited, the Client acknowledges that any non-refunded amount is a genuine pre-estimate of the loss the Consultant is likely to suffer as a result of the Client’s early cancellation. The Client acknowledges that this is not a penalty.
  4. Re-attending the programs
     1. 11.1.The Consultant may offer special terms and conditions and pricing for re-attending the Mastermind Program or another of the Services provided the Client complies with the terms of this clause.
     2. 11.2.If the Client wishes to re-attend the Mastermind Program or another of the Services the Client will have 12 months from the date of completion of the Service to book to re-attend in order to be applicable.
     3. 11.3.The terms and conditions of the re-attending of the Mastermind Program or another of the Services will be as specified on the Website at the time the Client signs up to re-attend the Service.
  5. personnel 
     1. 12.1.Consultant’s Personnel

The Client approves the Consultant to subcontract, delegate or perform the Services through any person without the prior written consent of the Client. 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 Mastermind Program), and if necessary, the Consultant may need to vary or substitute the Consultant’s Personnel providing the Services. 

• 1. 1. 12.2.Client’s Personnel
        1. The Client must ensure that its Personnel 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 of Service.
        2. The Client is solely responsible for ensuring that the Client’s Personnel comply with the provisions of these Terms of Service (particularly in relation to confidential information and intellectual property), and a breach by any of the Client’s Personnel of an obligation imposed on the Client under these Terms of Service, will be deemed to be a breach by the Client. Any licence granted to the Client’s Personnel is solely only while they are a member of the Client’s Personnel. Upon their cessation, their licence immediately ceases.
  2. disclaimer
     1. 13.1.The Disclaimer available on the Website applies to the provision of the Services to the Client and the Client’s participation in the Services, and its terms are incorporated into this Terms of Service by this reference.
  3. representations & warranties 
     1. 14.1.The Client represents and warrants that:
        1. the Client has the full power and authority to enter into, perform and comply with its obligations under these Terms of Service;
        2. where the Client is a corporation, that the Client is duly incorporated;
        3. the Client has duly and validly authorised the execution, delivery and performance of these Terms of Service, and such execution will not contravene any law, any of the Client’s constituent documents or any other agreement or arrangement that the Client is a party to;
        4. at the date of agreeing to these Terms of Service, the Client is not subject to an insolvency event;
        5. unless otherwise disclosed to the Consultant, the Client is not entering into these Terms of Service as trustee of any trust or settlement;
        6. the Client has not made any false declaration in respect of any current or past dealings with the Consultant, including in any negotiations;
        7. the Client will as soon as possible notify and fully disclose to the Consultant if:
           1. an event has occurred or is likely to occur which may lead to default on the part of the Client under these Terms of Service; or
           2. proceedings are taken or threatened or are pending against the Client which could have an adverse effect upon the Client’s reputation or upon the Client’s capacity to perform the Client’s obligations under these Terms of Service.
     2. 14.2.The Client acknowledges that the Consultant is entering into these Terms of Service in reliance of the warranties and representations contained in clause 14.1 and the Client agrees that those warranties and representations are deemed to be repeated by the Client each time Services are performed under these Terms of Service.
  4. TERMINATION
     1. 15.1.Either party (the non-defaulting party) may terminate these Terms of Service with immediate effect by giving written notice to the other party if:
        1. the other party fails to pay any amount due under these Terms of Service on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
        2. the other party commits a breach of any term of these Terms of Service and either:
           1. the breach is irremediable; or
           2. the breach is remediable and the other party fails to remedy that breach within a reasonable period (being not less than 14 days) after the other party has, or is deemed to have, received written notice requesting it to do so;
        3. the other party repeatedly breaches any of the terms of these Terms of Service 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 these Terms of Service;
        4. an insolvency event occurs in relation to the other party; or
        5. any warranty given by the other party in these Terms of Service is found to be untrue or misleading.
     2. 15.2.In addition to the above, the Consultant may also terminate these Terms of Service with immediate effect by giving written notice to the Client if the Consultant reasonably believes that the Client is not committed to the Mastermind Program or another of the Services, as applicable. In order to terminate under this clause, the Consultant must provide at least 1 weeks’ written notice to the Client that it needs to rectify this (including the reasoning behind why the Consultant believes so, and how the Client may rectify it), and should the Client fail to do so by the end of the one week, the Consultant may terminate at the end of the notice period.
     3. 15.3.The rights available to a party under this clause do not affect any other right or remedy otherwise available to it.
  5. Effect of termination
     1. 16.1.On termination or expiry of these Terms of Service:
        1. 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;
        2. access granted to the Intellectual Property and Confidential Information (in accordance with the terms of these Terms of Service) will immediately cease;
        3. each party must pay to the other any sums that are outstanding and to be accounted for under these Terms of Service;
        4. unless otherwise in accordance with the terms of these Terms of Service there will be no refund for any fees paid.
     2. 16.2.To the extent permitted by law, if the Consultant terminates these Terms of Service (through no fault of the Consultant) then there is to be no refund of any fees paid to the Client.
     3. 16.3.Termination or expiry of these Terms of Service 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.
  6. INDEMNITY
     1. 17.1.The Client 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:
        1. the Client’s use of the Services;
        2. any claim made against the Consultant or the Client by a third party arising out of or in connection with the provision of the Services and/or these Terms of Service; 
        3. any breach of these Terms of Service by the Client, including any failure to pay any fees on time;
        4. any reliance by the Client or a third party on the Services or any advice, information or deliverable (including the Program Materials) provided in connection with the provision of the Services and/or these Terms of Service;
        5. the enforcement of these Terms of Service; and
        6. any negligent act, omission or wilful misconduct of the Client.
     2. 17.2.The Client must make payments under this clause 17:
        1. in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
        2. in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
  7. Exclusion and limitation of liability
     1. 18.1.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 these Terms of Service to the maximum extent permitted by law. 
     2. 18.2.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:
        1. the Client’s access and use of the Services;
        2. the Client’s participation in the Mastermind Program;
        3. the Client’s participation in the V.I.P VA Package;
        4. the Client’s participation in the V.I.P VA Package with Mentoring; 
        5. the Client’s participation D.I.Y VA Package; 
        6. the Client’s participation in the D.I.Y VA Package with Mentoring;
        7. the Client’s reliance on the Services and any information given; and
        8. any event which is beyond the Consultant’s control.
     3. 18.3.Subject to the other terms of this clause, the Consultant’s maximum aggregate liability to the Client 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 these Terms of Service, including any breach by the Consultant of these Terms of Service 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 Client under these Terms of Service in the 12-month period preceding the matter or event giving rise to the claim.
     4. 18.4.Nothing in these Terms of Service 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.
     5. 18.5.If the Consultant is liable to the Client 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 Client 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. 
     6. 18.6.Subject to the other terms of this clause, the Consultant excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms of Service, 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.
     7. 18.7.This clause applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Service.
     8. 18.8.In this clause “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
  8. CONFIDENTIAL information
     1. 19.1.Confidentiality obligations
        1. Other than where:
           1. use of the other party’s Confidential Information is required for the purpose of complying with a party’s obligations under these Terms of Service; 
           2. the other party’s Confidential Information is in the public domain, except as a consequence of a breach of this clause; 
           3. expressly agreed by all parties in writing; or 
           4. required by law; 

each party must at all times: 

• 1. 1. 1. treat and keep the other party’s Confidential Information confidential; 
        2. not use, or allow the use, of the other party’s Confidential Information by any third party; and
        3. not disclose or allow the disclosure, of the other party’s Confidential Information or the fact of the disclosure of the other party’s Confidential Information to any third party. 
     2. Without limiting the generality of clause 19.1(a), where a party receives (“Recipient”) Confidential Information of the other party (“Discloser”), the Recipient must:
        1. only use the Confidential Information in accordance with the instructions provided by the Discloser in writing;
        2. not reproduce or record or make any notes of any Confidential Information except as permitted;
        3. not allow or assist any other person to disclose, use, publish or release the Confidential Information;
        4. 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 Recipient’s position would use with respect to its own confidential information including:
        5. taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;
        6. taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and
        7. taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction; and
        8. not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.
  2. 19.2.Notifying the Discloser

The Recipient:

• 1. 1. must immediately notify the Discloser if the Recipient becomes aware of any breach or anticipated breach of the obligations in these Terms of Service; and
     2. must immediately notify the Discloser if the Recipient is lawfully obliged to disclose any Confidential Information to a third party and must comply with the Discloser’s lawful directions in relation to the disclosure.
  2. 19.3.Return of Confidential Information 
     1. If requested by the Discloser, the Recipient must immediately:
        1. return to the Discloser or destroy (at the direction of the Discloser) all Confidential Information, and any copies of the Confidential Information;
        2. cease using the Confidential Information; and
        3. an authorised signatory of the Recipient must confirm in writing that they complied with this clause.
     2. For the avoidance of doubt, the return, destruction or deletion of Confidential Information under this clause does not release the Recipient from its obligations under or in connection with these Terms of Service.
  3. 19.4.Injunction

In the event of a breach or threatened breach of these terms by the Recipient, the Discloser will be entitled to an injunction restraining the Recipient from committing any breach of these Terms of Service without showing or proving actual damage sustained or likely to be sustained.

• 1. notices
     1. 20.1.Procedure

All notices authorised or required under these Terms of Service 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.

• 1. General Provisions
     1. 21.1.Governing law
        1. These Terms of Service are governed by the laws of Western Australia and the Commonwealth of Australia which are in force in Western Australia.
        2. The parties submit to the jurisdiction of the Courts of Western Australia, relevant Federal Courts and Courts competent to hear appeals from them.
     2. 21.2.Binding on successors

These Terms of Service shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.

• 1. 21.3.Assignment

The Client may not transfer, assign or otherwise dispose of their interest in these Terms of Service 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 of Service without the prior written consent of the Client.

• 1. 21.4.Attorneys

Where these Terms of Service 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.

• 1. 21.5.Variation and Waiver

These Terms of Service may be varied by agreement in writing by both parties. No waiver by a party of a provision of these Terms of Service is binding unless made in writing.

• 1. 21.6.Severance

If a provision of these Terms of Service is void or unenforceable it must be severed from or read down to the extent necessary from these Terms of Service and the provisions that are not void or unenforceable are unaffected by the severance.

• 1. 21.7.Time of the essence

Time is in all cases and in every respect of the essence of these Terms of Service.

• 1. 21.8.Further assurances

The 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 of Service.

• 1. 21.9.Entire understanding
     1. These Terms of Service contain the entire understanding and agreement between the parties as to the subject matter of these Terms of Service.
     2. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of these Terms of Service are merged in these Terms of Service and are of no further effect.
     3. No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms of Service or constitutes any collateral agreement, warranty or understanding.
  2. 21.10.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.

• 1. 21.11.Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms of Service. 

• 1. 21.12.Cumulative rights

The rights and remedies of a party to these Terms of Service are in addition to the rights or remedies conferred on the party at law or in equity.

• 1. 1. 21.13.Dispute resolution
        1. If a dispute arises in connection with these Terms of Service then a party may only deal with that dispute in the manner set out in this clause.
        2. A party to a dispute which arises in connection with these Terms of Service may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
        3. Within 14 days after a notice is given under clause 21.13(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.
        4. 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.
        5. 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.
        6. 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.
  2. Definitions and InterpretationS
     1. 22.1.Definitions

In these Terms of Service, unless inconsistent with the context or subject matter:

• 1. 1. 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 of Service;
     2. Code of Conduct means the Code of Conduct provided by the Consultant to the Client and as amended from time to time;
     3. Commencement Date means the date the Client agrees to these terms or such other date as agreed in writing by the parties;
     4. Confidential Information of a party means all information (in any form):
        1. relating to or arising from the Services;
        2. that concerns that party’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
        3. includes these Terms of Service; 

but does not include information that:

• 1. 1. 1. is or becomes independently developed or known by a party through no breach of these Terms of Service by that party; or
        2. becomes publicly available without breach of these Terms of Service;
     2. Disclaimer means the disclaimer made available on the Website and as amended from time to time
     3. D.I.Y VA Package means the D.I.Y VA Package delivered by the Consultant to the Client in accordance with the terms of these Terms of Service;
     4. D.I.Y VA Package with Mentoring means the D.I.Y VA Package with Mentoring delivered by the Consultant to the Client in accordance with the terms of these Terms of Service;
     5. 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:
        1. the Services (including the Mastermind Program);
        2. the Program Materials; and
        3. any other material on the Website or otherwise delivered by the Consultant to the Client including (but not limited to) course content, documents, templates text, graphics and information architecture in the provision of the Services.
     6. 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:

• 1. 1. 1. all rights in all applications to register those rights;
        2. all renewals and extensions of those rights; and
        3. all rights in the nature of those rights, such as moral rights;
     2. 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); 
     3. Mastermind Program means the Mastermind Program delivered by the Consultant to the Client in accordance with the terms of these Terms of Service;
     4. 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 Client or the Consultant (either alone or with others and whether before or after the date of these Terms of Service) that is made available to the Client or obtained by the Client in connection with the Services;
     5. 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) and for the Client, the directors, agents and employees of the Client;
     6. Related Entity has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
     7. Term means the period of these Terms of Service commencing on the Commencement Date and continuing until termination; 
     8. V.I.P VA Package means the V.I.P VA Package delivered by the Consultant to the Client in accordance with the terms of these Terms of Service; 
     9. V.I.P VA Package with Mentoring means the V.I.P VA Package with Mentoring delivered by the Consultant to the Client in accordance with the terms of these Terms of Service; and
     10. Website means the website address of the Consultant being https://thebplanner.com.au/ and as amended from time to time.
  2. 22.2.Interpretation

In these Terms of Service, unless inconsistent with the context or subject matter:

• 1. 1. a reference to a person includes any other legal entity and vice versa; 
     2. words importing the singular number include the plural number and vice versa; 
     3. a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
     4. headings are for reference purposes only and must not be used in interpretation;
     5. a reference to a statute includes all regulations and subordinate legislation and amendments;
     6. a reference to a monetary amount is a reference to an Australian currency amount unless otherwise nominated by the Client;
     7. an obligation of two or more parties binds them jointly and each of them severally;
     8. an obligation incurred in favour of two or more parties is enforceable by them severally;
     9. references to time are to local time in Western Australia;
     10. a reference to a business day means a day that is not a Saturday, Sunday or public holiday in Western Australia;
     11. if any time period specified in these Terms of Service expires on a day which is not a business day, the period shall expire at the end of the next business day. © Progressive Legal Pty Ltd (ACN 607 068 708) trading as Progressive Legal (2020).  All Rights Reserved. This document was last updated 28 May 2020.