Terms and Conditions
1 Definitions and Interpretation
1.1 In these terms and conditions the following terms shall, unless the context otherwise requires, have the following meanings:
agreement means the agreement between you and us with respect to the provision of the Services, comprising the form signed by both parties confirming our engagement as service provider and all schedules attached to that form.
Business Day means any day other than a Saturday, Sunday or public holiday in Auckland, New Zealand.
Fees means the fees as set out in schedule 1.
GST means goods and services tax, payable in accordance with the Goods and Services Tax Act 1985 at the rate prevailing from time to time.
Personnel means all directors, employees, agents, consultants and authorised sub-contractors of the relevant party.
Services means the services described in schedule 1 of the agreement.
we, us, our means Equal Exes Limited.
you, your means you, the Client.
1.2 Unless the context otherwise requires or specifically otherwise stated:
a any capitalised term not defined in these terms and conditions but otherwise defined elsewhere in the agreement, shall have the meaning given to it in this agreement;
b “including” and similar words do not imply any limitation;
c references to any form of law is to the relevant law, including as amended or re-enacted;
d references to a party or a person includes any form of entity and their respective successors, assigns and representatives;
e all moneys payable under this agreement are payable in Australian dollars unless otherwise agreed;
f references to clauses are clauses to these terms and conditions.
1.3 In the case of any conflict or inconsistency between these terms and conditions and any term or condition elsewhere in this agreement, the term and condition elsewhere in this agreement shall prevail.
2 Our Services
2.1 We shall provide the Services and you shall purchase the Services in accordance with the terms and conditions of this agreement.
2.2 We may subcontract any third party to provide all or any part of the Services with your prior written approval (such approval not to be unreasonably withheld).
3 Our Responsibilities
3.1 We will ensure that:
a we will carry out the Services in accordance with the Service Levels;
b we will carry out the Services with due care and diligence by competent and suitably experienced Personnel in accordance with the appropriate standards;
c we will comply with all laws, by-laws, statues, regulations and standards enforced in the jurisdiction in which the Services are carried out.
4 Client Acknowledgements and Responsibilities
4.1 As the Client, you acknowledge and accept:
a All information you give us is true and correct.
b The Services involve coaching. We are not qualified therapists. Coaching is designed to focus on taking the actions to help you accomplish the goals that you define. You accept responsibility for your own mental health throughout the process.
c We are not legal, tax, accounting or financial advisers. You accept responsibility to consult with a lawyer, accountant, tax adviser and or financial adviser regarding any legal, tax, accounting or financial matters throughout the process.
4.2 You further agree to:
a Come to each coaching session (whether by phone, skype or in person) ready and willing to participate productively and honestly;
b Be ready to attend, and participate at, the coaching session at the scheduled time, and if you fail to do so, you acknowledge and accept that your session is forfeited and will not be otherwise made up;
c Focus each coaching session on those areas which are most important for you to move through and beyond the divorce and separation process;
d Endeavour to implement the coaching received at coaching sessions;
e Call us in between coaching sessions only if you are in real need mentally and/or emotionally;
f Give us feedback on our coaching sessions including what is working and not working for you; and
g Generally being responsible for choosing my attitude no matter what the circumstances.
5 Fees, Invoicing and Payment
5.1 In consideration of the Services, you shall pay us the Fees plus GST.
5.2 We will deliver an invoice to you for the Fees. Invoices are payable by you without any deduction or set off prior to the date the relevant Services are to be provided to you, unless otherwise agreed in writing.
5.3 If an invoice is not paid by its due date, we may elect:
a not to do any further work, and to retain custody of your papers or files, until the accounts are paid in full;
b to charge interest at a rate of no more than 5% per annum above the prevailing indicator lending rate of our bankers.
5.4 We may require security for our fees, disbursements and expenses which security may take the form of a mortgage or general security. We may also require another person to guarantee your payment of our fees, disbursements and expenses.
6 Electronic Communication
6.1 We may communicate with you and others at times by electronic means. These communications can be subject to interference or interception or contain viruses or other defects (corruption). We do not accept responsibility for, and will not be liable for any damage or lost caused in connection with, or as consequence of, the corruption of an electronic communication.
6.2 If you have any doubts about the authenticity of any communication or document purportedly sent by us, please contact us immediately.
7 Exclusion of liability
7.1 We shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind suffered or incurred by you arising directly or indirectly from the performance or non-performance of its obligations under this agreement, any breach of our obligations under or in connection with this agreement or from any negligence, misrepresentation or other act or omission on its part or the part of our Personnel.
7.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 to the extent permitted by those Acts where applicable.
7.3 Where such liability cannot be excluded, liability to you is strictly limited, at our option, to the following:
a in the case of Services, the supplying of the relevant services again; or
b the amount of the current monthly Fees for the month during which the breach allegedly occurred.
8 Force Majeure
8.1 Notwithstanding any other provision of the agreement, we shall not be liable for any delay or failure to perform an obligation under this agreement caused, wholly or partly, by any act of God, fire, earthquake, storm, flood, landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public mains electrical supply failure, sabotage, riot, civil disturbance, national emergency, terrorism, act of war or any other cause beyond our reasonable control (force majeure event).
8.2 We shall notify you as soon as practical of any anticipated delay or failure caused by a force majeure event.
8.3 If a force majeure event occurs, the performance of our obligations under this agreement is suspended for the period of delay caused by the force majeure event.
8.4 We may terminate this agreement by giving you 14 days’ notice if we determine that we are not able to deliver the Services within a reasonable time due to a force majeure event. Neither party shall be obliged to make any payment in respect of such termination.
9 Intellectual Property
9.1 All intellectual property rights (whether registered or unregistered) in the Services, including without limitation, all materials made available to you during the Coaching Services and any intellectual property created, made, discovered or reduced to practice by us arising from or in connection with the provision of the Services, is our absolute property.
10.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except to the extent:
a required by law;
b necessary to obtain the benefit of, or to carry out any obligations under, the agreement;
c that the parties otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed; or
d that the information is or becomes publicly available without breach by either party of its confidentiality obligations under this clause or at law.
10.2 We will comply with all applicable laws (including the Privacy Act 1993) when we collect, use, and disclose personal information about you.
11.1 You may terminate our engagement at any time.
11.2 We may terminate this agreement at any time if you are in breach of this agreement or otherwise bankrupt. If we stop work because payment is not received by us by the due date we will have no liability for any loss suffered by you when work is stopped for this reason.
11.3 In the event of termination or expiry of the agreement for any reason:
a the termination or expiry shall be without prejudice to a party’s rights and remedies in respect of any breach by the other party;
b clauses 7, 9, and 10 of these terms and conditions will continue to apply notwithstanding the termination or expiry of the agreement;
c you shall be liable for and shall immediately pay to us the outstanding of balance of the Fees for all Services carried out up to the date of termination.
12 Dispute Resolution
12.1 If any dispute arises under the agreement which cannot be settled amicably by the parties, any party may give notice of the dispute to any other party and, within 14 days after such notice is given, the parties will refer the dispute to mediation by a mediator agreed between them. If the parties are unable to agree on a mediator within 5 Business Days, a mediator will be appointed by the President of the New Zealand Law Society within a further five Business Days. Each party to the dispute will bear their own costs of the mediation and will contribute equally to the cost of the mediator.
12.2 Nothing in this clause will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.
13.1 The agreement embodies all that is agreed upon between the parties as to the subject matter of the agreement and supersedes and cancels all previous agreements and undertakings, if any, between the parties with respect to the subject matter of the agreement, whether such be written or oral.
13.2 If either party waives any default or breach of the agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.
13.3 If any provision of the agreement is or becomes illegal, invalid or unenforceable in any respect, that provision shall be read down to the extent necessary to make it legal, valid and enforceable or, if it cannot be read down, be deemed severed from the terms and conditions. Neither such change shall affect the legality, validity and enforceability of the other provisions of these terms and conditions.
13.4 Any notice given under the agreement will be in writing delivered to the relevant party or sent by post or email at such address or number as may be notified in writing by each party to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post two days after the day of posting and if served by email on the day of sending to the correct email address.
13.5 Nothing in the agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent or employee of the other party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
13.6 Neither party may assign, novate or otherwise transfer its rights and obligations under the agreement to any person without the prior written consent of the other party.
13.7 The agreement may be varied by the parties in writing (and be signed by the parties).
13.8 The agreement may be executed in any number of counterparts (including any facsimile or scanned PDF counterpart), each of which shall be deemed an original, but all of which together shall constitute the same instrument.