VitalSmarts Australia / New Zealand – Standard Terms and Conditions of Purchase
- Parties. For purposes of these terms and conditions, the “Company” shall mean VitalSmarts Australia / New Zealand ABN 65 141 457 258 and the “Client” shall mean the client that has placed the order.
- Placing of Orders. Orders for Training Materials, Programs, and Services are placed via email or using the www.vitalsmarts.com.au website. All purchases are non-cancellable and non-refundable. Company will, as its sole remedy, replace defective product with conforming product provided returns are made within 10 business days of receipt. Fees for postponing or cancelling training class may be incurred. Upon email confirmation of the order from Company, the order will be binding. Nothing herein shall obligate Client to place any such orders, or Company to accept such orders. Any orders for additional Programs and Services must be provided no fewer than thirty (21) days prior to the date of the relevant session or the date on which Materials (defined below) are required to arrive.
- Programs and Services. The capitalised terms “Programs” and “Services” mean, respectively, Company’s programs, deliverables, services (including delivery, consulting, and customisation work) for which orders are placed by Client and accepted by Company. Programs may include articles, participant materials, instructor materials and other materials (collectively, “Materials”), whether delivered in print or other tangible media or through electronic means.
- Intellectual Property and Licence Grant. Client acknowledges and agrees that as between Client and Company, Company and its licensors is/are, and remains, the owner(s) of all intellectual property rights in and to the Programs, Services, and Materials, whether or not protected by patents. Client acknowledges that certain materials associated with The Power of Habit ™ training are property of Charles Duhigg, who licensed these to Company. Company acknowledges and agrees that Client will retain all its rights, title, and interest in and to Client’s products, trademarks, technology, inventions, techniques, data, designs, and other information, whether or not protected by patents. Company grants to Client a nonexclusive, nontransferable, limited license to use the Programs and Materials solely for Client’s internal use by employees of Client during the Term. Persons receiving the Materials pursuant to the foregoing licence are referred to herein as “Participants.” Client will pay the applicable Program fees for each Participant. Participants are permitted to retain indefinitely for their personal reference the tangible Program materials. Client agrees to use any articles, program videos, wall charts, and other program materials and instructional aids only internally during the Term of this agreement. Neither Client nor its employees (nor contractors or consultants) shall have any right to copy, distribute, publicly display, license, sub-license, create derivative works from, or make any other use of any such property and materials.
- Cancellation of Training or Other Event. If the Client cancels an event, the Client is responsible for all non-refundable travel costs incurred, regardless of cancellation date. If the Client cancels an event with more than 30 days’ notice to the Company, there is no cancellation fee and any fees previously paid will be credited to your next event or purchase (except non-refundable travel costs mentioned above). If the Client cancels with 30 or fewer days’ notice to the Company, the Client is responsible for 100% of the fee for the event. Notice of cancellation must be received by email to Geoff Fleming [email@example.com]. Alternatively notice may be given in writing and will be deemed given when received by Vitalsmarts Australia / New Zealand. Notice should be sent to Vitalsmarts ANZ, PO Box 6022, Vermont South, Victoria, 3133. A reschedule or a postponement will be considered the same as a cancellation and subject to the above policy.
- Warranty/Disclaimer. Company warrants that the Programs, Materials and Services: (a) when used in accordance with the terms and conditions of this Confirmation Form, will not infringe or otherwise violate any patents, copyrights, trademarks, trade secrets or other intellectual property rights of any third parties; and (b) will be free from material defects in materials and workmanship when delivered. As Client’s sole remedy for defective materials, Company will replace such materials upon their return to Company and will assume ground freight charges for their return for a period of sixty (60) days after receipt by Client. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE PROGRAMS AND SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
- Indemnification. Company will indemnify Client and Client’s owners, directors, employees, agents and representatives (“Indemnified Parties”), from any and all third party claims and liabilities (including reasonable attorneys’ fees) which may arise from third party patent, trademark or copyright infringement claims arising in connection with such Indemnified Parties’ authorized use of the Programs and Services (“Claim”), except to the extent that such infringement is attributable to content provided by Client or an Indemnified Party. Company reserves the right to control the defence of any such litigation, including the employment of counsel and payment of all expenses, provided that Company may not settle any Claim against Client unless it unconditionally releases Client of all liability.
- Compliance with Laws. In performing this Agreement, Client and Company agree to comply with all applicable laws and regulations including, but not limited, to all export control or other trade regulation. Specifically, with regard to export control, Client hereby acknowledges that all goods and services provided under this Confirmation Form are subject to Australian export control laws and may not be provided directly or indirectly to any country to which export is prohibited.
- Limitation of Liability. TO THE EXTENT ALLOWED BY LAW, COMPANY’S LIABILITY TO CLIENT IN CONNECTION WITH THIS CONFIRMATION FORM OR ANY PROGRAMS OR SERVICES DELIVERED HEREUNDER SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY FOR PROGRAMS AND SERVICES DURING THE AGREED PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM.
- Confidential Information. Company and Client acknowledge that, subject to the exceptions set forth below, the following shall constitute “Conﬁdential Information”: (a) any information relating to this Confirmation Form; and (b) any other information that either party reasonably holds in conﬁdence or has received from a third party under an obligation of conﬁdentiality. The following information will not be considered Conﬁdential Information: (w) information that is already generally available to the public at the time of disclosure by the disclosing party; (x) information that hereafter becomes generally available to the public, through no fault of the receiving party; (y) information that is known by the receiving party prior to the disclosure; and (z) information that becomes known through a third party under no obligation not to disclose it. During the Term and for three years thereafter, each party agrees to maintain the other party’s Conﬁdential Information as strictly conﬁdential and not to, directly or indirectly, disclose or reveal it to any third party, or seek to use it for any purpose, except as contemplated in this Agreement or as required by a court or governmental authority of competent jurisdiction, after ﬁrst notifying the disclosing party of such disclosure requirement.
- Term and Termination. This Agreement shall commence on the Start Date and end on the End Date (each as recorded on emails and Order Forms). This Confirmation Agreement may be terminated: (a) by written notice from either party in the event the other party materially defaults in the performance of its obligations hereunder, which default has not been substantially cured within 30 days after written notice has been given to the defaulting party specifying the default or (b) by Company immediately, in the event Client has breached the Licence.
- Insurance. VitalSmarts agrees to maintain in full force and effect during the term of this Agreement, the following minimum insurance coverage: (a) Workers’ Compensation in accordance with the statutory Workers’ Compensation Laws; (b) Public Liability Insurance with the sum insured of $20,000,000.
- Purchase Orders. These Terms and Conditions shall be the sole agreement between the parties, and any additional terms and conditions appearing on a purchase order are expressly disclaimed and shall not apply.
These terms and conditions are valid for all orders completed on or after 6 June, 2020.