The terms and conditions set out herein will be binding between the MFK Clinic, the Parent/Guardian and the Participant on and from the time the Parent/Guardian pays the Fee as directed by the MFK Clinic. Payment of the Fee will be evidence of the Parent/Guardian and the Participant’s agreement to be bound by the terms and conditions set out herein.

BACKGROUND

A. The Parent/Guardian wishes to engage the MFK Clinic to perform the Services.

B. The MFK Clinic has the skills, background and experience to provide the Services.
C. The MFK Clinic is willing to provide the Services, and the Parent/Guardian is willing to appoint the MFK Clinic to provide the Services, all in accordance with the provisions of this agreement.

OPERATIVE PROVISIONS

1.     Definitions and interpretation

1.1.   Definitions
In this agreement unless the context indicates otherwise, the following words have the following meanings:

ACL means the Competition and Consumer Act 2010 (Cth) (ACL).

Annual Club Membership Fee means a $39.95 (incl. GST) fee payable by the Parent/Guardian to the MFK Clinic for the purposes of covering administration, insurance, program access and other ancillary costs for the calendar year for the Participant.

Background IP means Intellectual Property of the MFK Clinic which was in existence prior to the commencement of this agreement or which is subsequently developed by the MFK Clinic independently of and for purposes unconnected with this agreement.

Parent/Guardian means any person enrolling in, for or on behalf of a Participant for the supply of the Services.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Confidential Information includes any information marked as confidential and any information received or developed by the MFK Clinic during the term of this agreement, which is not publicly available. This includes all information, data, documentation, designs, workings, functions, techniques, concepts not reduced to material form, agreements with third parties, technical data and marketing information such as Parent/Guardian lists, financial information and business plans.

Facilities means working space, computer equipment, access to the internet and the Parent/Guardian’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by the MFK Clinic in order to perform the Services.

Fees means the participation fees of the MFK Clinic plus the Annual Club Membership Fee.

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

MFK Clinic means My Fit Kids Pty Ltd A.C.N. 611 790 419 of C/- PO Box 1197, 28-30 Bay Street, Southport 4215.

MFK Clinic’s Personnel means any person or persons that the MFK Clinic designates to perform the Services on the MFK Clinic’s behalf including but not limited to, Staff, employees, contractors and/or subcontractors.

Participant means any person enrolled by or on behalf of the Parent/Guardian to engage in participation of the Services.

Parties means the MFK Clinic, the Parent/Guardian and/or the Participant and Party means either one or all of them.

Personal Information has the meaning as defined in any applicable Privacy Law.

Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a Party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.

Services means the services to be provided by the MFK Clinic under this agreement including without limitation to engaging in the undertaking, supply and supervision of sporting and/or other physical activities provided by the MFK Clinic.

Session/s means the allotted and advised time the MFK Clinic supplies the Services to the Parent/Guardian and/or Participant.

Social Media Platforms means, including without limitation, any of Instagram, Facebook, X or similar platforms.

Specification means the details of the Services as set out in the specification in schedule 1.

Staff means any person engaged by or on behalf of the MFK Clinic including without limitation to staff, employees, contractors and/or subcontractors.

Termination Date means the earlier of:

(a) the date of termination of this agreement by the Parent/Guardian or the MFK Clinic; or
(b) the end of the calendar year relevant to the Annual Club Membership Fee.

1.2.   Interpretations
In this agreement unless the context otherwise requires:
(a)   words importing any gender include every gender;
(b)   words importing the singular number include the plural number and vice versa;
(c)    words importing persons include firms, companies and corporations and vice versa;
(d)   references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
(e)   reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f)     any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g)   the headings to the clauses and schedules of this agreement are not to affect the interpretation;
(h)   any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(i)     the word “including” (and related forms including “includes”) means “including without limitation”.

2.     Services
(a)   The MFK Clinic will make the Services available to the Participant in consideration for payment of the Fee to the MFK Clinic, subject to the provisions of this agreement.
(b)   The MFK Clinic will nominate the time and place for the performance of the Services subject to the availability of the MFK Clinic’s Staff.
(c)    The Services may be performed by the Staff of the MFK Clinic, or the MFK Clinic, who may at its own discretion, choose those most appropriate to carry out the Services.

3.     Location
(a)   The MFK Clinic will provide the Services in places and locations as the MFK Clinic considers appropriate to the type and nature of the requirements as advised to the Parent/Guardian from time to time;
(b)   all school-based coaching sessions will proceed regardless of weather conditions in the discretion of the MFK Clinic (acting reasonably);
(c)    The MFK Clinic may, in its discretion (acting reasonably), cancel a Session due to weather concerns.

4.     Fees
4.1.   Payment of Fees
(a)   In consideration of the provision of the Services in accordance with this agreement, the Parent/Guardian will pay the MFK Clinic the Fees at the time of enrolment (or as otherwise advised by the MFK Clinic) by way of direct bank transfer or credit card payment.
(b)   The Parent/Guardian acknowledges that the Fees are inclusive of any GST that may be charged by the MFK Clinic to the Parent/Guardian.
(c)    Payment of Fees may be refundable, or a pro-rata credit may be applied, at the sole discretion of the MFK Clinic for unattended Sessions in circumstances where: -

a.     a Session has been cancelled by the MFK Clinic; or
b.     the Participant (or the Participant’s parent or guardian) provides the MFK Clinic with a medical certificate issued by a qualified medical practitioner registered to practice with the Australian Health Practitioner Regulation Agency; or
c.     as otherwise decided by the MFK Clinic.

4.2.   Variation of Fees
(a)   The MFK Clinic is entitled to vary the Fee during the term of this agreement upon providing the Parent/Guardian with 14 days written notice prior to the change being implemented.
(b)   The Parent/Guardian may, prior to the date the varied Fee is set to take effect in accordance with clause 4.2(a), give written notice to the MFK Clinic that they no longer wish to receive the Services and the Parent/Guardian elects to terminate this agreement, in which case the provisions of clause 11 will apply.

4.3.   Costs and disbursements
The MFK Clinic is permitted to charge for all costs and expenses incurred in performing the Services.

4.4.   Failure to pay
(a)   If the MFK Clinic permits the Parent/Guardian to make payment for the Services after a Session has been conducted and the Parent/Guardian does not make a payment within seven days of that Session, the MFK Clinic may, in its absolute discretion but is under no obligation to, do any or all of the following:

i.        require the Parent/Guardian to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
ii.        not permit a Parent/Guardian or Participant to engage in the Services (or any part of the Services).

5.     MFK Clinic’s Personnel
(a)   If the Parent/Guardian:
i.        provides a notice in writing to the MFK Clinic that any of the Staff or the MFK Clinic’s Personnel has acted negligently; and

ii.        has reasonable grounds which have been disclosed and discussed with the MFK Clinic

the Parent/Guardian may require the MFK Clinic to cease a particular person or persons employed by the MFK Clinic to cease supplying the Services to the Participant, including without limitation the Staff or the MFK Clinic’s Personnel.

(b)   If the Parent/Guardian satisfies the criteria referred to in clause 5(a), the MFK Clinic must, as soon as it is practicable:

                      i.        cease to allow the particular person or persons to supply the Services to the Participant; and

                     ii.        have the Services provided by an alternative person or persons as may be reasonably acceptable to the Parent/Guardian.

For avoidance of any doubt, the MFK Clinic does not have to seek the consent of the Parent/Guardian to any person engaged pursuant to clause 5(b)(ii) and the MFK Clinic warrants that any person engaged pursuant to such clause will be suitably qualified and skilled to deliver the Services.

6.     Use of subcontractors

(a)   The MFK Clinic is permitted to use other persons to provide some or all of the Services.

(b)   The MFK Clinic is responsible for the work of any of the MFK Clinic’s subcontractors or other persons engaged to provide the Services on behalf of the MFK Clinic.

(c)    Any work undertaken by any of the MFK Clinic’s subcontractors will be undertaken to at least the same standard as stated in this agreement and the Specification.

7.     Disclosure and ownership of Intellectual Property

(a)   The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any party any right, title or interest in or to any Intellectual Property in any Background IP.

(b)   The obligations accepted by the Parties under this clause 7 survive termination or expiry of this agreement.

8.     Confidentiality

(a)   A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

(b)   The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.

9.     Privacy

(a)   The Parent/Guardian is responsible for, if requested to do so by the MFK Clinic, obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Parent/Guardian to the MFK Clinic in connection with this agreement so as to ensure that the MFK Clinics dealings with that information pursuant to this agreement comply with the MFK Clinics obligations under any Privacy Laws.
(b)  The Parent/Guardian must indemnify the MFK Clinic against, and must pay the MFK Clinic on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 9(a).
(c)    The Parent/Guardian acknowledges and consents to the MFK Clinic uploading images or other modes of media to a Social Media Platform which may include the name/image and/or likeness of a Parent/Guardian and/or Participant. The Parent/Guardian waives any right to make a Claim against the MFK Clinic for the uploading, usage or distribution of any media contemplated under this clause 9.
(d)   The Parent/Guardian may, by providing written notice to the MFK Clinic, elect not to have any images, videos and/or other modes of media posted to a Social Media Platform which may contain the Parent/Guardian and/or a Participant
(e)   The Parent/Guardian must:

                      i.        immediately notify the MFK Clinic if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;

                     ii.        comply with any directive from the MFK Clinic as to which Party will discharge any statutory reporting obligation arising from the incident; and

                     iii.        conduct or assist the MFK Clinic in conducting a reasonable and expeditious assessment of the breach or suspected breach.

10.   Warranties, liability and indemnities

10.1. Warranties

(a)   The MFK Clinic warrants that it will use reasonable care and skill in performing the Services and that it, and its Staff and/or the MFK Clinic’s Personnel, are suitably qualified to undertake the provision of the Services.
(b)   Nothing in these terms and conditions is intended to limit the operation of the Australian Consumer Law contained in the ACL. Under the ACL, the Parent/Guardian may be entitled to certain remedies if there is an issue arising from the provision of the Services.

10.2. Limitation on liability

(a)   Except in the case of death or personal injury caused by the MFK Clinic’s negligence, the liability of the MFK Clinic under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise will not exceed the Fees paid by the Parent/Guardian to the MFK Clinic under this agreement. The MFK Clinic’s liability will be reduced proportionately to the extent that any death or personal injury was caused due to a negligent act made by anyone else.

(b)   Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The MFK Clinic’s liability under this clause 10.2(b) will be reduced proportionately to the extent that any tort, negligence, breach of statutory warranty was caused due to a negligent act made by anyone else.

10.3. No reliance

Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

10.4. Survival of obligations

The obligations accepted by the MFK Clinic and the Parent/Guardian under this clause 11 survive termination or expiry of this agreement.

11.   Termination

(a)   Either Party may terminate this agreement by notice in writing to the other if the Party notified:

                      i.        fails to observe any term of this agreement; and

                     ii.        fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of seven days’ notice of the breach being given in writing by the notifying Party to the other Party.

(b)   Either Party may terminate this agreement immediately if the other Party commits a material breach of the agreement which is incapable of rectification.

(c)    Upon termination of this agreement any outstanding or unpaid fees, expenses or reimbursements payable by the Parent/Guardian to the MFK Clinic in respect of any period prior to the Termination Date must be paid by the Parent/Guardian within seven days after the Termination Date.

12.   General

12.1. Dispute Resolution

(a)   A party claiming that a dispute has arisen under or in connection with the supply of the Services must not commence court proceedings arising from or relating to a dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b)   A party that requires resolution of a dispute which arises under or in connection with these Terms must be give the other Party written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c)    Once the dispute notice has been given, each party to the dispute must then use its best endeavours to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, either Party to the dispute may take legal proceedings to resolve the dispute.

12.2. Force Majeure

 (a)   The MFK Clinic does not have any liability under and will not be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.

(b)   The MFK Clinic, if affected by these circumstances, must promptly provide notice in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

(c)    If such circumstances continue for a continuous period of more than three months, either Party may terminate this agreement by written notice to the other Party.

12.3. Amendment

This agreement may only be amended in writing signed by duly authorised representatives of the Parties.

12.4. Entire agreement

(a)   This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.

(b)   The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.

12.5. Waiver

(a)   No failure or delay by the MFK Clinic in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

(b)   The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

12.6. Further assurance

Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

12.7. Severance

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

12.8. Notices

A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee sent by email to the email address of the addressee as advised by the MFK Clinic or Parent/Guardian (as the case may be).

12.9. Work, health and safety

The MFK Clinic must comply with all relevant work, health, safety and welfare standards and regulations determined by the Parent/Guardian or as prescribed by legislation.

12.10.     Law and jurisdiction

This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.

12.11.     Parent/Guardian’s Authority to Bind

Participant

(a)   The Parent/Guardian warrants to the MFK Clinic that it has sufficient authority (as the Participant’s, including without limitation, parent, caretaker and/or guardian) to bind the Participant to the terms and conditions contained herein.

(b)   The Parent/Guardian warrants that the authority provided under clause 12.11 (a) is true and correct and acknowledges that in order for the MFK Clinic to carry out the Services under this agreement, the MFK Clinic: -

i.        will rely on such information in performing the Services contemplated by this agreement without having independently verified the same; and
ii.        does not assume responsibility for the accuracy of the information and is not obligated to conduct any independent verification in relation to the warranty of information provided under clause 12.11(a).

Contact details
If you have any questions about these Terms, please contact:

My Fit Kids
Email: info@myfitkids.com.au
Phone: 0419 024 448
Address: PO Box 1197, Southport 4215
ABN: 35 046 751 120