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PROXIMITY TERMS AND CONDITIONS

Last updated: August, 2021

The Fine Print that the Fun Police (our lawyers) want us to tell you. Because... well... they're not fun.

Beyond Impact Pty Ltd
ACN 634 304 000
AND
the Client.


Proximity Mentoring and Coaching Program Agreement

RECITALS


A. The Company conducts a coaching and mentoring business aimed at helping coaches grow and scale their own businesses.
B. The Company runs the Program which is specifically aimed at coaches seeking to reach a high level of achievement.
C. The Company has agreed to allow the Client access to the Program and the Client has agreed to comply with the terms and conditions set out in this Agreement.

OPERATIVE PART


1. Interpretation


This Agreement is governed by the laws of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of that state.

In the interpretation of this Agreement, unless the context otherwise requires:


  • 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, words denoting one gender include all genders, and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
  • grammatical forms of defined words or phrases have corresponding meanings;
  • parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;
  • reference to an amount of money is a reference to that amount in the currency specified in the first invoice issued by the Company to the Client;
  • 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.

2. Definitions


In this Agreement:


  • Affiliated Entities means any Related Body Corporate of the Company and also     includes Brody Etherington in his individual capacity
  • Agreement means by way of signing the Proximity Promise and includes this document, any attachments or schedules thereto.
  • Client means that party specified in Item 2.
  • Commencement Date means that date specified in Item 3.
  • Company means that party specified in Item 1.
  • Confidential Information means all personal and corporate information acquired by the Client from the Company or its Affiliated Entities relating to the Program, clients and the business undertaken by the Company (including but not limited to information obtained in written, electronic or verbal form). This includes, but is not limited to, all Personal Information, financial, management and marketing information, all research, plans or other documentation, and all other information imparted in discussions or obtained through inspections or by any other method from the Company or the Affiliated Entities or the agents, advisers, consultants, employees or contractors of the Company or the Affiliated Entities. Information already in the public domain or that is proven to have been within the knowledge of the Client is not confidential for the purposes of this Agreement.
  • Costs means all losses, liabilities, deficiencies, obligations, costs, damages, penalties, actions, judgments, suits, claims and expenses (without limitation, including reasonable legal costs, charges and disbursements).
  • Investment means the amount specified in Item 4.
  • Item means an item in the Reference Schedule.
  • Late Payment Fee means the amount of $10 per day.
  • Payment Schedule means the schedule referred to in Item 5.
  • Personal Information means information of a personal nature relating to the directors, employees, agents or contractors of the Company.
  • Program means the program known as PROXIMITY provided by the Company.
  • Projected Sales means the total amount of projected sales revenue (not cash banked or accrued) and includes future revenue not yet collected.
  • Proximity Benefits means those benefits of the Program as set out in Schedule 1.
  • Reference Schedule means the reference schedule to this Agreement.
  • Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
  • Schedule means the schedules attached to this Agreement.
  • Services means the coaching and mentoring services provided by the Company to the Client including, but not limited to, the PROXIMITY Benefits, as well as addressing specific personal projects, business outcomes or general conditions in the Client’s personal and/or professional life, which may be amended by the Company from time to time. Services may include values clarification, business brainstorming, identifying and creating plans, examining modes of operating and teaching tools to assist personal transformation.
  • Term means the term of this Agreement commencing on the Commencement Date and ending 36 months from the Commencement Date.

3. Provision of Services


  • In consideration of the Client’s obligations in clause 4, the Company agrees to provide the Services to the Client during the Term on the terms and conditions of this Agreement.
  • The Company will ensure that the Services are provided with reasonable due care and skill.
  • The Company retains the flexibility to alter the Services and the mode or method of delivery of the Services as required in the reasonable opinion of the Company from time to time. The Company will convey in writing to the Client any such changes.
  • The Company reserves the right at any time and from time to time to modify, discontinue, temporarily or permanently, the Services or any part or portion thereof, with or without notice to you. You agree that the Company shall not be liable to you or to any third party for any modifications, suspensions or discontinuance of the Services, or any portion thereof. 

4. Client’s Investment


  • The Client agrees to pay to the Company the Investment which will be payable in accordance with the Payment Schedule without any deduction, counterclaim or set-off.
  • Time is of the essence in relation to the obligations in clause 4.
  • Any late payment will attract the Late Payment Fee until such time as any outstanding amount is paid in full.
    The Late Payment Fee will be charged to the Clients nominated payment method within 24 hours of the Client’s regular payment schedule and the Client’s access to the learning portal and coaching calls will be suspended until the account is brought into good standing.
  • The parties hereby agree that the Late Payment Fee is a genuine pre-estimate of loss that the Company will suffer if the Client does not comply with the Payment Schedule.
  • In addition to the Investment, the Client will pay any payment processing fees charged to the Company from time to time (for example, payments by PayPal will presently incur a 3% payment fee).

5. Refunds


Subject to Australian law, the Client may obtain a refund in the following circumstances:


  • if the request is made within 24 hours of signing this Agreement (by way of signing the Proximity Promise), by written notice to the Company by email at support@brodylee.com in which case the Company will process the refund within 14 days;

6. Termination by the Company with Cause and without Cause


Subject to Australian law, the Client may obtain a refund in the following circumstances:


  • The Company may immediately terminate this Agreement if the Client:
    • commits any serious or persistent breach of this Agreement which is in the reasonable opinion of the Company incapable of rectification; or
    • fails to remedy, to the Company’s reasonable satisfaction, a breach of any provision of this Agreement within one week of receiving a notice from the Company identifying the breach and requiring the breach to be remedied; or
    • becomes bankrupt or goes into liquidation or makes any assignment arrangement or composition with creditors of the Client on the happening of the event;
    • ceases business; or
    • fails to fully participate in the Services being offered by the Company.
  • Upon termination by the Company in accordance with the above clause, any amount of the Investment outstanding as at the date of termination shall become immediately due and payable as a debt owing to the Company.
  • In addition, the Company may terminate this Agreement without cause by notice to the Client at any time.
  • The termination of this Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of any breach of, this Agreement.

7. Client’s Obligations and Warranties


During the Term, the Client warrants and agrees to:


  • fully participate in the Program including meeting each of the Minimum Client Commitments (without any prompting, reminding or tracking by the Company);
  • not solicit leads from participating in the Program without first obtaining express written consent by the Company;
  • comply with the terms of this Agreement;
  • be in regular contact with the Company;
  • uphold the high values and work ethic of the Company; and 
  • comply with all reasonable directions of the Company.

8. Company Disclaimers


The Client acknowledges and agrees that:


  • in facilitating the Program, the Company and its Affiliated Entities do not act in a capacity of providing investment advice;
  • neither the Company or its Affiliated Entities hold a license by ASIC or any other government department;
  • the advice provided is general in nature and past results do not necessarily indicate future performance; 
  • the Services are provided “as is” and may not be suitable for the purposes of the Client;
  • the Company does not warrant that any information provided is current and error-free;
  • the Company is not qualified to, and will not provide professional medical or mental health advice, to the Client. The Client should seek professional independent medical advice from a trained professional if this is required.

9. Indemnity


The Client agrees to indemnity and hold harmless the Company and the Affiliated Entities from and against any and all Costs arising out of:


  • the Client’s breach of this Agreement; or
  • any act or omission, breach of statutory duty, negligence or wilful default by, or on behalf of, the Client. 

10. Confidential information


In consideration of the Company providing the Client with access to Confidential Information, the Client agrees to:


  • treat the Confidential Information as subject to a duty of confidence and to only use it for the purpose of the participating in the Program;
  • not disclose any of the Confidential Information to any third party;
  • take at the Client’s sole expense whatever steps the Company may consider necessary to enforce the duty of confidence against any person to whom the Confidential Information has been disclosed by the Client and who is in breach of that duty;
  • securely store all material containing any Confidential Information; and
  • return to the Company all material containing Confidential Information, including any copies made, upon written demand by the Company.

11. Intellectual property

  • The Client acknowledges that the intellectual property in all works of the Company or their servants or agents that the Client will have access to during the Program remain at all times the sole property of the Company.
  • The Company agrees to licence the right to use the materials only for the purposes of participating in the Program and only during the Term.
  • The Client must not allow any third-party access to, or use of, the intellectual property.
  • Any intellectual property developed by the Client during the Term relating to the Program shall be the absolute property of the Company and the Client shall do all things and sign all documents that may be necessary to vest such intellectual property in the Company.
  • The Client irrevocably appoints the Company to be their attorney to do all things and sign all documents that may be necessary to vest such intellectual property in the Company.

12. GST

In consideration of the Company providing the Client with access to Confidential Information, the Client agrees to:

  • Definitions
    In this clause 12:
    • words and expressions which are not defined in this Agreement, but which a defined meaning in GST Law, have the same meaning as in the GST Law; and
    • ‘GST Law’ has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Where the GST Law applies to this Agreement, unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are inclusive of GST.
  • If GST is payable by a supplier or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.
  • The recipient will pay the amount referred to in clause 15(c) in addition to, and at the same time that, the consideration for the supply is to be provided under the Agreement.
  • Where a party is required under this Agreement to pay or reimburse an expense or cost of another party, the amount to be paid or reimbursed by the first party will be the sum of:
    • the amount of the expense or cost less any input tax credits in respect of the expense or cost to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled, and
    • if the payment or reimbursement is subject to GST, an amount equal to that GST.

14. Dispute resolution

  • General
    If a dispute arises out of or relates to this Agreement, including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
  • Notice specifying the nature of the dispute
    • The party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party to this Agreement specifying the nature of the dispute.
    • On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.
  • Mediation
    • If the Client and the Company do not agree within 7 days of receipt of the notice, or such further period as agreed in writing by them, as to:
      • the dispute resolution technique and procedures to be adopted;
      • the timetable for all steps in those procedures; and
      • the selection and compensation of the independent person required for such technique,
    • then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of New South Wales.
    • The president of this professional association or the president's nominee will select the mediator and determine the mediator's remuneration.
  • Proceedings
    If the mediation referred to above is not completed within four weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
  • Associated costs
    The costs of the mediation will be borne equally by the parties.

14. Survival


The following clauses of this Agreement shall survive the expiry or earlier termination of the Agreement:


  • clause 4;
  • clause 9;
  • clause 10;
  • clause 11;
  • clause 12; and
  • clause 14.

15. No assignment

The rights and obligations under this Agreement cannot be assigned by the Client.

16. No waiver

No term or condition of this Agreement shall be deemed to have been waived, except by a statement in writing signed by the party against whom enforcement of the waiver is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.

17. Notices

A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:

  • delivered personally; or
  • posted to their address when it will be treated as having been received on the second business day after posting; or
  • faxed to their facsimile number when it will be treated as received when it is transmitted; or
  • sent by email to their email address when it will be treated as received when it enters the recipient’s information system.

18. Counterparts

This Agreement may be executed in any number of counterparts each of which will be an original, but such counterparts together will constitute one and the same instrument, and the date of the Agreement will be the date on which it is executed by the last party.

19. Costs

Each party will pay their own costs in relation to this Agreement.

20. Variations

Any variation to this Agreement must be in writing signed by the parties.

21. Severability


If any provisions of this Agreement are deemed invalid or unenforceable, the remaining provisions will remain in full force and effect.

SCHEDULE 1 – PROXIMITY Benefits

Exclusive benefits of the Program include (but are not limited to):


  1. Group Coaching Sessions for the duration of the agreement.
  2. RocketFuel 20 min coaching sessions with Brody Lee or his team.
  3. Voxer access to Brody Lee.
  4. Masterclasses for the duration of this agreement.
  5. Access to the BEYOND Facebook group for the duration of this agreement.
  6. Access to the PROXIMITY Facebook group for the duration of this agreement.
  7. Access to an online Library of BEYOND Program content (released in stages) including the ‘Zero to Hero' 6 Week Program for the duration of this agreement. You will gain access to the BEYOND online library upon signing the Proximity Promise.
  8. Access to all IMPACT Events held over the 15 months (locations TBD).
  9. Access to all PROXIMITY and BEYOND Events held over the 15 months (locations TBD). Brody Lee may elect to stack these around the Impact events.
  10. Ongoing support through the BEYOND & Proximity Facebook group.
  11. Unlimited “crisis” calls. 

REFERENCE SCHEDULE

Item 1

Company

Beyond Impact Pty Ltd
ACN: 634 304 000
Level 26, 1 Bligh
1 Bligh St

Sydney

NSW 2000
Email: support@brodylee.com
Phone: +61 2 8074 0801

Item 2

Client

As detailed on the Proximity Promise document signed by the client.

Item 3

Commencement Date

When Client electronically signs the Proximity Promise.

Item 4

Investment

$144000

Item 5

Payment Schedule

Payable in instalments as follows:
$4000 payable on or before the Commencement Date;
and 35 payments of $4000 payable in advance each month thereafter on the 1st or 15th of each month (as decided by the Coach).