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 Rest and Rhythm for the
Commencement Date means the commencement of the Services.
Contract means the contract formed as a result of the acceptance of a Fee Proposal by the Client. It
includes these Terms, specific program agreements, and the Fee Proposal.
Client means the Client set out in the Fee Proposal, offer or other document provided by Rest and Rhythm
(in the absence of such information, the Client who submitted the Application).
Fee Proposal means any quote, estimate or proposal from Rest and Rhythm to the Client for the provision
of the Services.
Goods means any goods supplied by Rest and Rhythm in connection with the Services.
Intellectual Property means Rest and Rhythm’s rights in all intellectual property including copyright; discoveries; inventions; present and future patent and patent applications; rights to inventions; copyright and related rights; 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 an 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 step 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 Rest and Rhythm to the Client specifying the Price together with any ancillary costs payable by the Client to Rest and Rhythm for the Goods and Services.
Price means the price payable for the Services by the Client. Program means the various coaching programs as provided by Rest and Rhythm to the Client.
Project Intellectual Property means all of the intellectual property created or arising in connection with or as a result of the Services.
Rest and Rhythm means Rest and Rhythm Pty Ltd (ACN 103 607 085) or any agent or contractor representing Rest and Rhythm Pty Ltd.
Services means the services (eg coaching and events) to be provided by Rest and Rhythm to the Client as set out in the Fee Proposal or any other specific agreement.
Terms means the terms and conditions contained in this document.
Website means the websites located at: https://restandrhythm.com.au/
2.1. These Terms apply to the sale of Goods and Services from Rest and Rhythm to the Client.
2.2. Rest and Rhythm will not supply Goods and Services on any terms or conditions other than those set
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 any agreement, these Terms, or a Fee Proposal incorporating these Terms;
(b) accepting the Fee Proposal (incorporating these Terms) either verbally, in writing or electronically via the Website;
(c) attending to any payment in relation to the Fee Proposal; or
(d) otherwise providing instructions to Rest and Rhythm in relation to the Services after having received a copy of the Terms.
3.2. If Rest and Rhythm accepts an Application as specified in clause 3.1 , the parties will have created a
binding Contract and Rest and Rhythm will supply the Services to the Client, and the Client will pay
the Price to Rest and Rhythm as specified in the Fee Proposal or Invoice in accordance with the
4. Price and Payment Terms
4.1. All Prices contained on a Fee Proposal or shown on the Website are in Australian dollars (AUD) and
are exclusive of Goods and Services Tax (GST).
4.2. The submission of an Application and payment of the Price does not guarantee provision of the Services. All Applications shall be subject to Rest and Rhythm review and acceptance in its absolute discretion. In circumstances where Rest and Rhythm does not accept an Application, any Price paid shall be refunded to the Client in full.
4.3. Clients who engage the Discovery packaged Services will be issued monthly invoices for the term of the Services, issued on the last day of each month, payable within 14 days from the invoice date.
4.4. Clients who engage the Developer and/or Accelerator packaged Services will be issued monthly invoices for the term of the Services, issued on the first day of each month, payable within 14 days from the invoice date.
4.5. If the Client fails to make payment of any part of the Price on the due date for payment (or if an automatic payment is declined), Rest and Rhythm may suspend delivery of any Programs and access to Rest and Rhythm resources until such time as the account is brought up to date.
4.6. In circumstances where Rest and Rhythm invoices are outstanding for more than 14 days, the Client agrees that the Client will be also liable to pay to Rest and Rhythm interest on the full amount of the Fee outstanding at the rate equal to 2% higher than the penalty interest rate (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.
4.7. The Client must reimburse Rest and Rhythm for the full amount of any bank or other fees associated with any dishonoured payments and the Client agrees to indemnify Rest and Rhythm against any legal, debt recovery or other expense associated with any action Rest and Rhythm may be forced to undertake to recover money from you.
4.8. The Client may not withhold, make deductions from, or set-off payment of any of the Price due to Rest and Rhythm for any reason.
5. Variations and Cancellations
5.1. If the Client causes a significant delay to the Services, then Rest and Rhythm may add to the Price any Additional Charges incurred by Rest and Rhythm and/or cancel or suspend the Services.
5.2. If the Client wishes to make changes to the Services, the Client must notify Rest and Rhythm in writing of those changes, and if those changes result in additional work or time required by Rest and Rhythm, Rest and Rhythm may vary the Price to include any increase in the Price and/or Additional Charges incurred by Rest and Rhythm 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
5.3. 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 Rest and Rhythm, however, any agreement by Rest and Rhythm to such a reduction in the Services will be at Rest and Rhythm’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.
6. Rest and Rhythm’s Rights & Responsibilities
6.1. Rest and Rhythm will provide the Client with the Services as set out in the Fee Proposal.
6.2. Rest and Rhythm 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 the Client, and its business, as requested from Rest and
6.3. Rest and Rhythm 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.
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 Rest and Rhythm (for example, trade secrets, documents, information, 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 Rest and Rhythm with all resources, including but not limited to information, documentation, certifications, and licences to enable Rest and Rhythm to perform the Services;
(c) must input or provide their information on a monthly basis at least three (3) working days prior to
the training session to enable Rest and Rhythm to perform the Services; and
(d) must use all reasonable endeavours to ensure that there are no circumstances which may affect Rest and Rhythm’s ability to provide the Services.
7.2. The Client will conduct themselves professionally and ethically throughout the Rest and Rhythm’s Program and/or Services. If the Client’s conduct is deemed unacceptable by Rest and Rhythm, and
not corrected after notice has been given to the Client, Rest and Rhythm reserves the right to cancel the Client’s enrolment and terminate delivery of any ongoing Programs and/or Services.
8.1. Rest and Rhythm 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 Rest and Rhythm; and
(c) any claims or liability for infringement of any third-party intellectual property rights.
9.1. The Client agrees to indemnify Rest and Rhythm 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;
(b) any unauthorised exploitation or use of the Intellectual Property or the Project Intellectual Property, and infringement of any third-party intellectual property rights; and
(c) the Client providing incorrect, misleading, or deficient information or instructions to Rest and Rhythm.
10. Guarantees & Consumer Law
10.1. 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.
10.2. Rest and Rhythm’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. Rest and Rhythm Programs are a full course commitment and require the Client to commit to a minimum six (6) month term. Should the Client terminate this Agreement within this minimum six (6) month term, they are liable for payment of the Price equivalent to the minimum six (6) month term whether the Services have or will be provided, or not.
11.2. Rest and Rhythm may suspend or terminate the Services, in its sole and absolute discretion, that the Client has breached any term of this Agreement. The Client acknowledges and agrees that Rest and
Rhythm shall not be liable to you or any other party for said suspension and termination.
11.3. Either party may immediately terminate, or suspend the performance of the Services 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. Following the completion of the minimum six (6) month term of Services, either party may terminate the Agreement by providing the other party with two (2) months’ written notice.
11.5. If the Contract is terminated for any reason:
(a) The Client’s access and license to use the site, content or Services and everything accessible by or through the site, content or Services shall terminate and the remainder of this Agreement shall survive indefinitely unless and until Rest and Rhythm choses to
(b) and the Price or any portion of it is still outstanding, including up to and including the Price or any pro-rata amount relating to the minimum six (6) month term, then the Client must immediately pay to Rest and Rhythm a pro-rata payment for the Services provided by Rest and Rhythm up to the date of termination, and any other money owed by the Client to Rest and Rhythm under this Contract as at the date of termination; and
(c) termination does not affect any accrued rights or liabilities of the parties.
11.6. Rest and Rhythm will make every effort to accommodate your rescheduling needs, provided it has adequate notice and availability.
11.7. 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. Alleged Violations
12.1. Rest and Rhythm reserves the right to suspend or terminate the Client’s use of any Services or the
content or site.
12.2. To ensure that Rest and Rhythm provides a high-quality experience for the Client and for other users of the site, content and Services, the Client agrees that Rest and Rhythm or its representatives may access the Client’s account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights or other unauthorized uses of the site, content
12.3. Rest and Rhythm does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Rest and Rhythm reserves the right to suspend or terminate the Client’s
account or your access to the site immediate, with or without prior notice to you, and without liability to you, if Rest and Rhythm believes that you have violated any of these Terms, furnished Rest and Rhythm with false or misleading information, or interfered with use of the site, content or the Services by others.
13. Intellectual Property
13.1. Rest and Rhythm 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 otherwise) without the prior written consent of Rest and Rhythm.
13.2. The Client acknowledges and agrees that, unless otherwise agreed in writing:
(a) the Intellectual Property is the sole property of Rest and Rhythm; 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 Rest and Rhythm 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.
13.3. 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.
14. Confidentiality & Non-Disclosure
14.1. Rest and Rhythm 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.
14.2. 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 Rest and Rhythm or other third party private or confidential information experienced or heard at any group coaching sessions.
14.3. If the Services or the Contract is completed or otherwise terminated, the Client must return or destroy (at Rest and Rhythm’s request), at its own costs, all documents or other media which contain
any Confidential Information belonging to Rest and Rhythm.
14.4. The Client acknowledges that Rest and Rhythm may retain imagery, video, and other content or information related to the Client and Services for quality assurance and marketing purposes. The Client hereby consents to any records associated with the Services 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 Rest and Rhythm for demonstration purposes, provided at all times that it does not contain or disclose any of the Client’s Confidential Information.
15. Force Majeure
Rest and Rhythm will not be liable to the Client for any failure to perform, or delay in performing Rest and Rhythm’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 Rest and Rhythm. If such a failure or delay continues for a period of 30 days Rest and Rhythm may terminate this Contract by giving written notice.
The Client acknowledges and agrees that Rest and Rhythm may sub-contract any part of its obligations under the Contract without the Client’s consent.
Rest and Rhythm 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 Rest and Rhythm 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.
Rest and Rhythm takes seriously the parties’ obligations to safeguard personal information. A copy of Rest
(b) take all reasonable steps to comply with the Privacy Act 1988 (Cth) in its interactions with Rest and Rhythm.
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.
Any failure by Rest and Rhythm to insist upon strict performance of any term or condition in these Terms shall not constitute a waiver of any rights of Rest and Rhythm under that term or condition or any other provision of the Contract.
Rest and Rhythm may sub-contract all or any part of the Services, its rights and obligations under the Contract without the Client’s consent or notification to the Client.
The Contract between Rest and Rhythm 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.