Appointment & term
1.1
The Participant hereby engages the Coach as an independent contractor, and Coach hereby accepts the engagement, upon the terms and conditions contained in this Agreement.
1.2
The engagement of the Coach pursuant to the terms hereof shall commence on the date hereof and shall continue until terminated pursuant to Article 5 (the “Term”).
1.3
The Parties’ acknowledge and agree that Coach’s status under this Agreement shall be that of an independent contractor and their relationship hereunder shall be that of two independent parties and not that of an employer and employee or otherwise. Coach shall have no right or authority, express or implied, to incur any obligation or liability on behalf of Participant unless specifically authorized in writing. The conduct and control of the Coach’s work will lie solely with the Coach.
Services
2.1
The Coach undertakes to provide, or to cause one of its employees or agents to provide, coaching services to the Participant (collectively, the “Services”). Notwithstanding any other provision herein, the Coach may provide a schedule of its available hours to provide the Services to the Participant, and the Coach shall have no obligation to provide any Services to the Participant should it so choose. The Participant agrees that this Agreement is not exclusive and the Coach shall be entitled to render similar or identical services to those provided hereunder to other parties.
2.2
Whether meeting in person, by phone or video (“Appointment”), Participant will initiate all scheduled Appointments at the appointed time. If Participant initiates the Appointment more than fifteen (15) minutes after the appointed time, the appointed time will be forfeited by Participant.
2.3
Once payment is made by Participant for booking an Appointment, fees are 100% non-refundable, but Appointment fees can be applied to an Appointment at a later date if Participant reschedules as set forth in this Section. Each Participant shall receive one (1) rescheduling if the Appointment is rescheduled at least twenty-four (24) hours prior to the scheduled Appointment. However if the Appointment is rescheduled within twenty-four (24) hours of the scheduled Appointment, or if the Appointment is cancelled, or if the Appointment is rescheduled at least twenty-four (24) hours prior to the scheduled Appointment more than one (1) time, then in each such case, no refunds are available.
2.4
Notice Period – The Client acknowledges and agrees that a minimum of 24 hours’ notice is required for the cancellation of any scheduled session.
Late Cancellation Fee – In the event of a cancellation with less than 24 hours’ notice, the Client authorizes the Service Provider to charge the credit card on file for the full amount of the scheduled session.
Rescheduling Privilege – The Client is granted the privilege to reschedule any session without incurring additional charges, provided that such rescheduling is communicated to the Service Provider at least 24 hours before the originally scheduled session time.
Intellectual property and confidentiality
3.1
Subject to Section 3.2, the Participant and Coach shall be the sole owner of all of their intellectual property.
3.2
The Participant expressly acknowledges that the Coach has developed a system as well as associated software, materials, trade secrets and know-how to provide the Services (the “Systems”). Participant acknowledges that any rights in any improvements to the Systems made as a result of or in connection with the performance of the Services (including any suggestions made by Participant) shall be owned by the Coach (and the Participant waives all moral rights in favor of the Coach in this regard).
3.3
For the purposes of this Agreement, “Confidential Information” means all confidential information disclosed by one Party to the other Party in the course of the Coach providing the Services. Each Party agrees to treat the other Party’s Confidential Information as confidential. The restrictions imposed by this Section shall not apply to the disclosure of the Confidential Information which (i) is now, or which hereafter, through no act or failure to act on the part of the receiving Party, becomes generally known or available to the public without breach of this Section; (ii) is known to the receiving Party at the time of disclosure of such Confidential Information; (iii) is hereafter furnished to the receiving Party by a third party who is not bound by an obligation of confidentiality with respect to such information; (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information; or (v) is required by law to be disclosed, provided however that, in the event disclosure is required by law, the receiving Party will, if legally permitted and only to the extent legally permitted, provide the disclosing Party with prompt notice of such requirement in order to enable the disclosing Party to seek an appropriate protective order if it so wishes.
Termination
4.1
The Coach and the Participant may terminate this Agreement at any time: (i) upon giving the other Party fifteen (15) days prior written notice; or (ii) if the other Party fails to perform any of its obligations under this Agreement and such failure is not remedied within five (5) days from written notice thereof having been given to such defaulting Party. In the event of any such termination, all amounts owing to the Coach up to the date of termination shall remain payable by the Participant. Articles 4, 5 and 6 shall survive termination or expiry of this Agreement.
Indemnification, no Reps and limitation of liability
5.1
The Participant shall indemnify and save the Coach and its shareholders, directors, officers, employees and agents (collectively the “Coach Parties”) harmless against any and all claims, actions, losses, expenses, damages, costs and fees (including reasonable legal fees) of every nature and kind whatsoever which the Coach Parties may suffer as a result of any breach by the Participant of its obligations set out in this Agreement.
5.2
Participant acknowledges that the Services are not a guarantee of results. Participant is solely responsible for creating and implementing his/her own physical, mental and emotional well-being, decisions, choices, actions, and results. As such, Participant agrees that Coach will not be liable for any actions or inaction, or for any direct or indirect result or effect of any Services provided by Coach. Participant understands coaching is not therapy and does not substitute for therapy and does not prevent, cure, or treat any mental disorder or medical disease, and that coaching is not to be used as a substitute for professional advice by legal, mental, medical, financial or other qualified professionals.
Furthermore, Participant acknowledges and agrees that none of the Coach Parties, individually or collectively, have assumed or undertaken any fiduciary relationship or obligations in favor of Participant.
5.3
In no event shall the Coach Parties be liable to the Participant or to any other party for any indirect, incidental, special or consequential damages, or damages for lost profits or loss of business, arising out of or in connection with this Agreement, however caused and under any theory of liability, whether based in contract, law or other theory of liability, regardless of whether the Coach Parties were advised of the possibility of such damages. In no event shall the Coach Parties’ liability arising out of or in connection with this Agreement exceed the amounts paid by the Participant to the Coach under this Agreement for the Services giving rise to such liability over the last twelve (12) calendar months preceding the date of any dispute.
5.4
The Services are being provided “as is, where is”, without any promises, representations and warranties, whether, express, implied or statutory, by the Coach, including without limitation any warranties of merchantability and fitness for a particular purpose.
Release
6.1
Participant agrees that the Coach may use any images, audio recordings or video recordings of Participant obtained while enrolled in the Program in connection with the Program, including but not limited to testimonials, zoom calls, web pages, market research. Participant waives any right to payment, royalties or any other consideration for the use of such images, audio recordings, or video recordings. Participant waives the right to inspect or approve the finished product, including written or electronic copy, wherein Participant’s likeness appears. The Coach is hereby held harmless, released and forever discharged from all claims, demands, and causes of action which Participant, their heirs, representatives, executors, administrators, or any other persons acting on Participant’s behalf of the Participant’s estates have or may have by reason of this authorization.
Intellectual Property
7.1
All intellectual property rights in and to the Program, the Program content, and all materials distributed at or in connection with the Program are owned by the Coach or the Program partners presenting during the course of the Program. Participant will not use or reproduce or allow anyone to use or reproduce such content or materials displayed at, distributed at, or provided in connection with the Program for any reason without the prior written permission of the Owner.
Disclaimer of Warranties
8.1
The Coach gives no warranties with respect to any aspect of the Program or any materials related thereto or offered in connection with the Program and, to the fullest extent possible under the laws governing this Agreement, disclaims all implied warranties, including but not limited to warranties of fitness for a particular purpose, accuracy, timeliness, and merchantability. Participant accepts and agrees that he/she is fully responsible for his/her progress and results and that Coach offers no representations, warranties or guarantees verbally or in writing regarding Participant’s future earnings, business profit, marketing performance, customer growth, or results of any kind. The Coach does not guarantee that Participant will achieve any results using any of the ideas, tools, strategies or recommendations presented at the Program, and nothing at the Program is a promise or guarantee to Participant of such results.
Force Majeure
9.1
The Coach shall not be liable for any failure or delay in the performance of this Agreement if such failure or delay is due to causes beyond the Coach’s reasonable control, including but not limited to acts of God (such as earthquakes, tornadoes, floods, etc.), war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Upon occurrence of any force majeure event, the Coach relying upon this provision shall give written notice to the Participants of its inability to perform or delay in completing their obligations in regards to Articles 1 and 2.
Governing Law; Venue; Dispute Resolution
10.1
This Agreement shall be governed by the laws of the State of California and any disputes arising from it must be handled exclusively in Los Angeles County, California. The Parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement through electronic correspondence. The Parties further agree that their respective good faith participation in any electronic correspondence is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures with the exception of those items outlined in Article 2 relative to the amount owed for the program. If any legal action or other proceeding is brought for the enforcement of the Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of the Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
Entire Agreement; Waiver
11.1
This Agreement constitutes the entire agreement between the Participant and the Owner and supersedes all prior and contemporaneous agreements, representations, and understandings between the Parties. No waiver of any of the provisions of the Agreement by Owner shall be deemed, or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by Owner.
Effect of Headings
12.1
The subject headings of the paragraphs of the Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
Severability
13.1
If any term, provision, covenant, or condition of the Agreement is held by an arbitrator or a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated
General provisions
14.1
Any notice to be made by either Party to the other shall be sufficiently made if sent by email to the Party to be served at the address indicated as follows, or such other address as may be notified in writing by one Party to the other:
Any such notice shall be deemed to have been received on the immediately following business day.
14.2
If any term, provision, or clause of this Agreement or any portion of such term, provision or clause is held invalid or unenforceable, the remainder of this Agreement will not be affected thereby and each remaining term, provision or clause or portion thereof will be valid and enforceable to the full extent permitted by law.
14.3
This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal laws of United States of America applicable
in California.
The Parties irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of California.
14.4
The Participant acknowledges that it: (i) has had sufficient time to review this Agreement; (ii) has read and understands the terms of this Agreement; and (iii) has had the opportunity to receive independent legal advice concerning the interpretation and effect of this Agreement.
14.5
No delay or omission by a party in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.