Terms and Conditions – The Coaching Directory
In these Terms unless the context requires otherwise:
Additional Charges means charges that are separate from the Price, and may include but are not limited to, the cost of additional services.
Application means any written or verbal application or order by the Client to TCD for the Services.
Commencement Date means the commencement of the Services.
Contract means the contract formed as a result of the acceptance of a quote by the Client. It includes these Terms and the Quote.
Client means the Client set out in the Quote, offer or other document provided by TCD (in the absence of such information, the Client who submitted the Application).
Coaching Customer means the customer or training participant who engages the Client’s services subsequent to viewing the Client’s listing on the Directory or otherwise being matched to the Client via TCD Services.
Directory means the online directory of coaches and training providers on the Website.
Intellectual Property means TCD’s rights in all intellectual property arising from or incidental to the Website and the Directory including copyright; discoveries; inventions; present and future patent and patent applications; rights to inventions; trademarks; service marks; trade names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in confidential information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.
Insolvency Event means any of the following analogous events:
(a) the party, being an individual, commits and act of bankruptcy;
(b) a party becomes insolvent;
(c) a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the party unable to pay their debts as the debts fall due;
(e) any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
(f) any steps is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.
Invoice means a tax invoice issued by TCD to the Client specifying the Price together with any ancillary costs payable by the Client to TCD for the Services.
Price means the price payable for the Services by the Client.
Project Intellectual Property means all of the intellectual property created or arising in connection with or as a result of the Services.
Quote means any quote, estimate or proposal from TCD to the Client for the provision of the Services.
Services means the marketing, online directory, coach matching, community membership, coaching lead generation and any other associated or incidental services to be provided by TCD to the Client as set out in the Quote.
TCD means Egan Business Trust (ABN 44 528 430 479) trading as ‘The Coaching Directory’.
Terms means the terms and conditions contained in this document.
Website means the TCD website located at: https://thecoachingdirectory.com.au.
2.1. These Terms apply to the sale of Services from TCD to the Client.
2.2. TCD will not supply Services on any terms or conditions other than those set out herein.
3. Acceptance of Terms and Placement of Applications
3.1. The Client is deemed to have agreed to these Terms by either:
(a) signing and returning a copy of these Terms or a Quote incorporating these Terms;
(b) accepting the Quote (incorporating these Terms) either verbally, in writing or electronically via the Website; or
(c) otherwise providing instructions to TCD in relation to the Services after having received a copy of the Terms.
3.2. If TCD accepts an Application as specified in clause 3.1, the parties will have created a binding Contract and TCD will supply the Services to the Client, and the Client will pay the Price to TCD as specified in the Quote or Invoice in accordance with the Contract.
4. Price and Payment Terms
4.1. The submission of an Application (for listing on the Directory) and payment of the Price does not guarantee Services and/or inclusion on the Directory. All Applications shall be subject to TCD review and acceptance in its absolute discretion. In circumstances where TCD does not accept an Application for listing on the Directory, any Price paid shall be refunded to the Client in full.
4.2. Unless otherwise stipulated in the Quote, TCD requires payment of 100% of the Price in advance.
4.3. Where the Price relates to a Directory listing:
(a) payment must be made prior to a listing appearing on the Directory; and
(b) is charged annually in advance for an agreed listing duration (unless otherwise agreed in writing).
4.4. All Prices contained on a Quote or shown on the Website are in Australian dollars (AUD) and are exclusive of Goods and Services Tax (GST).
4.5. If the Client fails to make payment of any amount on the due date of the Invoice, the Client must pay to TCD interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received.
4.6. The Client must reimburse TCD for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by TCD to recover money from the Client.
4.7. The Client may not withhold, make deductions from, or set-off payment of any of the Price due to TCD for any reason.
4.8. TCD may provide additional and incidental services to Clients upon request and such services may be provided by TCD or its trusted third-party providers at TCD’s discretion. Unless expressly described within the Quote as being included in the Price, all such additional services will incur Additional Charges and will be added to the Invoice. Any such Additional Charges will be notified to the Client in advance where such prior notice is reasonably practicable.
5. TCD’s Rights & Responsibilities
5.1. TCD will provide the Client with the Services as set out in the Quote.
5.2. In performing the Services, TCD is committed to honesty and providing true representations of a Client’s business and service offering. TCD therefore reserves the right to refuse to provide the Services if TCD holds concerns regarding the accuracy or sufficiency of a Client’s experience, qualifications, products or services.
5.3. TCD is unable to commence the Services until it receives from the Client:
(a) the Price paid in full (where the Price is required to be paid in advance); and
(b) all relevant information in relation to a Client, its business and services as identified in TCD’s coach checklist (Checklist).
5.4. TCD will use its reasonable endeavours to deliver the Services on the agreed date and in accordance with any agreed Services schedule, subject to any delay resulting from a failure of the Client to provide information and material as required, and any additional work required by the Client.
5.5. The Client acknowledges that TCD has absolute discretion in relation to:
(a) any decision to accept (or refuse) an Application to include a potential Client on the Directory;
(b) any decision to grant a tiered or premium types of membership Services to a Client;
(c) the configuration, format, placement and functionality of the Website, the Directory and any listings on it; and
(d) any decision to match (or not match) a Client to a particular Coaching Customer,
and will not enter into any negotiations or discussions in relation to any such decisions however taken. These may be influenced by a variety of factors including (but not limited to):
• a Client’s experience, skill set and qualifications;
• the pool of coaches currently listed on the Directory with similar experience, skill sets and qualifications;
• the demand for coaches with similar experience, skill sets and qualifications;
• internal TCD operational limitations, imperatives or business strategies;
• TCD’s existing commercial and contractual arrangements; and
• protection or preservation of TCD’s goodwill, reputation or standing in the marketplace.
Accordingly the Client hereby accepts that, provided TCD is in compliance with any applicable laws, it is an essential condition of this Contract that the exercise of TCD’s discretion as outlined above shall be final and not open to challenge.
6. Variations and Cancellations
6.1. If the Client causes a significant delay to the Services, then TCD may add to the Price any Additional Charges incurred by TCD and/or cancel or suspend the Services.
6.2. If the Client wishes to make changes to the Services, the Client must notify TCD in writing of those changes, and if those changes result in additional work or time required by TCD, TCD may vary the Price to include any increase in the Price and/or Additional Charges incurred by TCD as a result of those changes. Any such increase in the Price or Additional Charges will be notified to the Client in advance where such prior notice is reasonably practicable.
6.3. In circumstances where a Client desires to reduce the level, scope or extent of the Services then they may request such a variation in writing to TCD, however, any agreement by TCD to such a reduction in the Services:
(a) will be at TCD’s absolute discretion and shall depend upon a range of factors including (but not limited to) operational ability and commercial practicality of providing the Services in a reduced form; and
(b) will be on the basis that any consequent reduction in the Price will only take effect upon the commencement of a new membership period term and, subject to compliance with its legal obligations, TCD will not process partial refunds for unused portions of a previously agreed membership term.
7. Client’s responsibilities and warranties
7.1. The Client:
(a) warrants that it has the right to use any third-party information or material provided to TCD for the Directory (for example, images, photographs, logos, paintings, art works or other copyright protected works), and is not infringing any intellectual property rights of any party;
(b) must provide TCD with all resources, including but not limited to information, documentation, certifications, and licences to enable TCD to perform the Services; and
(c) must use all reasonable endeavours to ensure that there are no circumstances which may affect TCD’s ability to provide the Services.
7.2. The Client warrants that the resources and information provided to TCD for the Directory (whether in relation to the Client’s business, experience, qualifications, background, products, services or otherwise) will be accurate and current, to the best of the Client’s knowledge.
7.3. The Client acknowledges and agrees that, in circumstances where it obtains an engagement by a Coaching Customer via the Directory or through the Services, the Client is solely responsible for managing that customer relationship. If TCD receives complaints, grievances or notices of disputes which have arisen between a Coaching Customer and a Client, it will refer these to the Client for resolution. TCD reserves the right to suspend or terminate the Services or any Client listing on the Directory where the Client has, in TCD’s reasonable opinion, failed to deal adequately with complaints, grievances or disputes with Coaching Customers.
7.4. In circumstances where the Services include coach matching (and the Price may be calculated on the basis of fees charged to a Coaching Customer), the Client undertakes to promptly and regularly provide reasonable and accurate evidence to TCD of services rendered and fees invoiced to Coaching Customers in order for TCD to determine and accordingly invoice the correct Price to the Client.
7.5. TCD will be entitled to rely on the Client’s warranties and undertakings set out in this clause 7.
8.1. TCD will not be liable to the Client or any other person for any lability or claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any consequential loss or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties, in relation to the Services. This includes, but is not limited to:
(a) any claims or liability which may arise because the Client has misrepresented its business, experience, qualifications, products or services;
(b) any claims or liability which may arise as a result of the Client providing incorrect information or instructions to TCD; and
(c) any claims or liability for infringement of any third-party intellectual property rights.
9.1. The Client agrees to indemnify TCD and each of its current and former officers, servants and agents, heirs and assigns against any claims, loss, damages and liabilities of any kind (including legal costs) arising from or incidental to:
(a) a breach by the Client of the Contract including but not limited to a breach of any of the warranties set out at clause 7;
(b) any unauthorised exploitation or use of the Intellectual Property or the Project Intellectual Property, and infringement of any third-party intellectual property rights;
(c) the Client providing incorrect information for a Directory listing;
(d) the Client instructing TCD to represent, amend, manipulate or configure the Services or a Directory listing in a way which is or has the potential to be misleading and/or deceptive or inaccurately represent the Client’s business or products in any way;
(e) any claim brought or threatened against TCD as a result of any negligence, omission, service failure, fraud, or misconduct (whether actual or merely alleged) of the Client in delivering services to a Coaching Customer.
10. Guarantees & Consumer Law
10.1. Unless stipulated otherwise in the Quote TCD makes no representations, warranties or guarantees, whether express or implied, that the Client will receive some financial or professional benefit, or other form of success from their listing on the Directory and acknowledges that demand for the Client’s services may depend upon a variety of factors including the quality, detail and presentation of their individual listing, experience and qualifications of the Client as well as the overall demand and supply in the marketplace for the services provided by the Client.
10.2. Nothing in these Terms is intended to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law (ACL) under the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
10.3. TCD’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:
(a) supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
11.1. Either party may terminate the Contract upon 30 days’ written notice to the other party.
11.2. In circumstances where a Client determines to terminate the Contract pursuant to clause 11.1:
(a) it may request removal from of its listing from the Directory which TCD shall undertake within a reasonably practical timeframe; and
(b) the Client shall not be entitled to a refund of any unused portion of the Price for any Directory listing which has been paid in advance for an agreed listing duration.
11.3. The parties may immediately terminate, or suspend the performance of, the Contract if:
(a) the other party breaches a term of the Contract (including these Terms) which is not capable of remedy;
(b) there is a failure to comply with any payment obligation; or
(c) the other party causes a significant delay to the delivery of the Services without a reasonable excuse; and
(d) if an Insolvency Event occurs.
11.4. If the Contract is terminated for any reason:
(a) and the Price or any portion of it is still outstanding, then the Client must immediately pay to TCD a pro-rata payment for the Services provided by TCD up to the date of termination, and any other money owed by the Client to TCD under this Contract as at the date of termination; and
(b) termination does not affect any accrued rights or liabilities of the parties.
11.5. Termination of this Contract does not operate to terminate any rights or obligations under these Terms that by their nature are intended to survive termination, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 8, 9, 12 and 13.
12. Intellectual Property
12.1. TCD has moral, unregistered and registered rights in its trade marks and the Client must not copy, alter, use or otherwise deal in the marks (whether through use of the Website or Directory or otherwise) without the prior written consent of TCD.
12.2. The Client acknowledges and agrees that, unless otherwise agreed in writing:
(a) the Intellectual Property is the sole property of TCD; and
(b) this Contract does not confer on the Client any property right or title to any of the Intellectual Property,
and, in circumstances where Project Intellectual Property is created in the course of rendering the Services, the Client assigns to TCD any Project Intellectual Property, and all legal and statutory rights and remedies and any actions available to the Client in relation to the Project Intellectual Property.
12.3. For the avoidance of doubt, Project Intellectual Property shall not include any intellectual property belonging to the Client which has been independently developed by the Client.
13. Confidentiality & Non-Disclosure
13.1. TCD will not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person outside of its organisation any Confidential Information belonging to the Client.
13.2. The Client must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person or use for their own or another person’s benefit any Confidential Information and/ or Intellectual Property belonging to TCD.
13.3. If the Services or the Contract is completed or otherwise terminated, the Client must return or destroy (at TCD’s request), at its own costs, all documents or other media which contain any Confidential Information belonging to TCD.
13.4. The Client acknowledges that TCD may retain imagery, video, and other content or information related to the Client’s Directory listing and Services records for quality assurance and marketing purposes. The Client hereby consents to the Directory listing and Services records being used for promotional purposes, including publication on any social media platform, print material, incorporated within promotional video footage or being furnished to prospective clients of TCD for demonstration purposes, provided at all times that it does not contain or disclose any of the Client’s Confidential Information.
14. Dispute Resolution
14.1. If any dispute arises between the parties in connection with this Contract (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(a) includes or is accompanied by full and detailed particulars of the Dispute; and
(b) is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
14.2. Within 10 Business Days after a Dispute Notice is given, a representative from each of the parties with the authority to resolve the dispute, must meet (either in person, via electronic means or otherwise) and seek to resolve the Dispute.
14.3. Subject to clause 14.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
14.4. Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
14.5. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this Contract and any related agreements.
14.6. For the avoidance of doubt, a decision by TCD not to accept an Application for the Services and/or listing on the Directory shall not be a Dispute for the purposes of this clause and any such decision shall be strictly subject to the discretions set out in clause 5.5.
TCD will not be liable to the Client for any failure to perform, or delay in performing TCD’s obligations under this Contract if the failure or delay is due to an act of war, revolution or terrorism, pandemic, an act of God, or any other event beyond the control of TCD. If such a failure or delay continues for a period of 30 days TCD may terminate this Contract by giving written notice.
TCD works with a number of third party technology and service providers in order to realise and maintain the Directory. Thus the Client acknowledges and agrees that TCD may sub-contract any part of its obligations under the Contract without the Client’s consent.
TCD may change these Terms if it has given to the Client at least 30 days’ prior notice in writing of the proposed change. In circumstances where the Client advises TCD in writing that it does not accept the proposed change, then the Contract between the parties will continue on the basis of the unchanged Terms set out herein.
(b) take all reasonable steps to comply with the Privacy Act 1988 (Cth) in its interactions with TCD.
The Contract terms are not intended to form an employment relationship, a joint venture or partnership.
Any clause of these Terms, which is invalid or unenforceable, is ineffective only to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Contract.
This Contract contain the whole agreement between the parties in respect of the subject matter of the Contract. The parties confirm that they have not entered into this Contract on the basis of any representation that is not expressly incorporated in writing into the Contract.
Any failure by TCD to insist upon strict performance of any term or condition in these Terms shall not constitute a waiver of any rights of TCD under that term or condition or any other provision of the Contract.
The Contract between TCD and the Client is made in the State of Victoria, Australia and the parties agree to submit all disputes arising between them to the courts of such State.