ONLINE TERMS AND CONDITIONS – KOF FAMILY HOLDINGS PTY LTD‍

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  1. ACCEPTANCE 
    1. These Terms are between the Parties set out in the Booking Proposal, being KOF FAMILY HOLDINGS PTY LTD ABN 48 680 345 797 our successors and assignees, (referred to as “we”, “us”, “our”), and you (referred to as “you” or “your”), and collectively the Parties.
    2. You have requested the Services set out in the attached Booking Proposal (Services). You agree and accept that these Terms and Conditions (Terms) and the Booking Proposal form the agreement (Agreement) under which we will supply Services to you for the Term. Please read the Terms carefully.  Please contact us if you have any questions.
    3. You accept this Agreement by:
  1. accepting these Terms online;
  2. making part or full payment for the Services;
  3. confirming in writing including by email that you accept the Booking Proposal; 
  4. allowing us to proceed with the Services; 
  5. signing and returning this Agreement; 
  6. booking a Session; or
  7. participating in a Session.
  1. OUR SERVICES
    1. We are functional medicine practitioners, and we assess functional medicine test results and provide preventative lifestyle, nutrition, and supplement advice that is individualised to you based on your own biomarkers. Our practitioners include registered general practitioners, retired general practitioners who have maintained health coaching credentials, nutritionists and naturopaths. Note that some of our general practitioners are retired functional medicine doctors, who now practice as accredited health coaches.
    2. Advice is in the form of functional medicine coaching and does not replace medical advice, nor does it replace your general practitioner. If you require immediate medical attention, contact your treating general practitioner or call 000. We do not perform consultations for acute conditions, injuries, or medical emergencies.
    3. We do not offer:
      1. “mainstream” GP services or medical advice such as routine pharmaceutical scripts, referrals, medical certificates etc.;
      2. in-person services; or
      3. Medicare rebates.
    4. Unless included as part of a package, the Services do not come with any follow-ups or additional services. It is solely your responsibility to initiate any further services needed.
    5. We agree to perform the Services set out in the Booking Proposal with due care and skill for the Term. Additionally, we ensure that any laboratories used for blood tests maintain appropriate registrations as required by their respective country's regulations.
    6. If set out in the Booking Proposal, we will not commence performing our Services until you have paid the upfront payment of our Fees.
    7. We will not commence performing Services until we have received a completed and executed Patient Consent Form from you. 
    8. We may provide the Services to you using our employees, contractors and third-party providers and they are included in these Terms. As part of the Services, you may be required to engage with third-party service providers, such as laboratories for blood tests. Please be aware that before you can receive services from these third parties, you will need to agree to and accept their terms and conditions. It is your responsibility to read and understand these terms as they will govern your use of the third-party services.
    9. When you engage third parties that are neither our employees nor contractors we have directly appointed, we bear no liability for the outcomes or quality of the services or products provided by these independent third parties.
    10. Products, Supplements and Subscriptions:
      1. Our Services include access to Therapeutic Goods Administration (TGA) approved supplements. We primarily source these supplements through Vital.ly, an established Australian distributor. This ensures that the supplements meet stringent safety and quality standards.
      2. As part of our holistic approach to wellness, we offer subscriptions to products, including Zinzino fish oil and Young Living for essential oils and household cleaning products. These subscriptions are managed and facilitated directly through their respective companies, and we assist in setting up and managing these subscriptions for your convenience.
      3. We may receive commissions or profits from the sale or recommendation of the supplements and products mentioned in this clause 2.10. We are committed to transparency and assure you that any recommendation is based on its merits and suitability to your personalised wellness plan.
      4. We may provide you with contact details of third-party goods and service providers. While we may recommend certain products or services based on their potential suitability to your wellness plan, we do not guarantee their effectiveness or endorse them beyond our general experience or understanding of their benefits. We make no representation or warranty about the third party’s advice, products, or services and disclaim all responsibility and liability for any third-party goods or services, including their quality, suitability, or performance.
    11. We reserve the right to suspend our Services and suggest consultation with a general practitioner or mental health professional as deemed reasonably necessary in our sole discretion. It is your responsibility to find and consult a general practitioner or mental health professional of your choosing should you decide to follow our suggestion. The general practitioner or specialist may, based on their own judgments, medical expertise, and assessment of your suitability for such treatments, provide alternative medicines or treatments to you.
    12. Booking Sessions: It is your responsibility to book any Sessions within the Term by way of methods instructed to you, such as online or via Zoom. 
    13. Cancelling/Rescheduling Sessions: If you need to cancel or reschedule a Session, you must do so online at least 48 hours’ prior to the Session commencing. This will allow both Parties to reallocate our schedules and use our respective times effectively. We reserve the right to accept or reject any rescheduling requests at our sole discretion. Unless otherwise agreed between Parties I extenuating circumstances, failure to provide sufficient notice, not showing up, or joining a Session more than 10 minutes late may result in the forfeiture of the Session. The additional cost of the Session will be priced at our then current rates.
    14. Refunds: To the extent permitted by law, we do not offer refunds of any kind for Services performed, unless otherwise agreed between Parties. Provided Services have not yet commenced, you may terminate these Terms without cause by providing us with notice in writing within 14 days of acceptance as per clause 1.2. In such an event, you are entitled to a refund of any fees already paid, less a $150 administrative charge.
  2. YOUR COMMITMENT TO US
    1. You agree and acknowledge the scope of our Services set out in the Booking Proposal and as set out in clauses 2.1 to 2.4.
    2. You warrant that throughout the term of this Agreement that:
  1. you will actively participate and engage in the Services;
  2. the sessions may be recorded and accessible. Please notify us in writing prior to the commencement of Service date if you do not consent to ay session being recorded. By not providing such notification, you grant us permission to record;
  3. there are no legal restrictions preventing you from agreeing the Terms;
  4. you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
  5. should a medical condition be diagnosed during the provision of our Services that typically requires treatment with pharmaceuticals, general practitioner (GP) care, or specialist attention, we will advise you to contact your GP for further management. It is your responsibility to pursue this recommendation and ensure continuity of care by following through with your GP's guidance and treatment plans;
  6. you will not infringe any third-party rights in working with us and receiving the Services;
  7. you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns; and
  8. you are responsible for obtaining any consents, and permissions from other parties necessary for the Services to be provided, and for providing us with the necessary consents and permissions.
  1. You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
  1. PRICE, INVOICING AND PAYMENT 
    1. You agree to pay us the amounts set out in the Booking Proposal.  All amounts are stated in Australian dollars.  All amounts exclude Australian GST (where applicable).  Payment may be made by way of payment methods as set out in our Booking Proposal when purchasing our Services.
    2. Where applicable, you agree to pay our Invoices by the payment date set out on the Invoice. If you do not pay by the payment date (including any other services we have provided to you), we may cease to provide the Services to you until we receive payment.
    3. We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
    4. If invoices are unpaid after the payment date, we reserve the right to take steps to recover any outstanding professional fees and outlays owing to us. In the event of non-payment, we have the right to engage debt collection services for the collection of unpaid debts, the right to commence legal proceedings for any outstanding amounts owed to us and the right to take any other adverse action against you as we consider appropriate. If any action is required to recover amounts owing to us (including without limitation issuing and receiving any correspondence, commencing court proceedings, taking enforcement action and so on), you acknowledge and agree that you are liable for and must pay all costs including without limitation debt collection, commission, charges, costs and any out-of-pocket expenses (including all legal costs and legal fees on an indemnity basis and all fees charged by counsel).You agree to indemnify us against any costs we may incur in recovering payment of any unpaid invoices.
    5. We reserve the right to report bad debts to independent credit data agencies.
  2. VARIATIONS 
    1. Our Services cover the scope set out in the Booking Proposal.  
    2. If during the course of our engagement there are changes in the specifications of the Services, the changes will be treated as a Variation.
    3. Where a Variation occurs we reserve the right to suspend the services and review the Service Fees. 
    4. We have discretion as to whether we perform this work and whether an adjustment to the Fee may be required in respect of the same, or if we are unable to accommodate for such Variation, we may request that we be paid for Services performed to date and terminate this Agreement. 
    5. If we agree to perform any Variation, then we will inform you of the additional costing (Variation Fee).  You need to approve, in writing, the Variation and Variation Fee, before we commence services.  We will invoice you accordingly for the Variation upon receipt of your approval or instruct you to purchase online.
  3. OUR INTELLECTUAL PROPERTY
    1. We own the Intellectual Property rights in:
  1. our pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into our pre-existing Intellectual Property; and
  2. intellectual Property that we create during the course of the Services, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that we create during the course of the Services;
    unless we assign or transfer this to you. This Intellectual Property is protected by Australian and international laws.
  1. Nothing in these Terms constitutes an assignment or transfer of our Intellectual Property rights, or a right to use our Intellectual Property, whether registered or unregistered, except as stated in these Terms or with our written permission.
  2. You must not breach our Intellectual Property rights by, including but not limited to:
  1. altering or modifying our Intellectual Property;
  2. creating derivative works from the Intellectual Property; or
  3. using our Intellectual Property for commercial purposes such as on-sale to third parties.
  1. This clause will survive the termination of these Terms. 
  1. FEEDBACK AND DISPUTE RESOLUTION
    1. Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.
    2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
  1. The complaining Party must tell the other Party in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet (virtually) in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
  2. If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complaining Party will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute and will be equally responsible for the costs of the mediator.
  1. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
  1. CONFIDENTIAL INFORMATION
    1. We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.
    2. You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you, to provide better quality services to you and not for any other purpose.
    3. These obligations do not apply to Confidential Information that:
  1. is authorised to be disclosed;
  2. is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
  3. is received from a third party, except where there has been a breach of confidence; or
  4. must be disclosed by law or by a regulatory authority including under subpoena.
  1. This clause will survive the termination of these Terms. 
  1. TERMINATION
    1. If either Party commits a remediable breach of these Terms and does not remedy the breach at its cost within a reasonable time after receiving written notice of the breach from the other Party, then the Parties agree to engage in the dispute resolution process set out in clause 7.2 in the first instance. If the dispute is not resolved after following that process, then either Party may terminate these Terms at any time upon written notice to the other Party.
    2. We may terminate these Terms immediately upon written notice to you, if:
      1. you commit a non-remediable breach of these Terms;
      2. you fail to provide us with clear or timely instructions to enable us to provide the Services;
      3. we, acting reasonably, consider that our working relationship has broken down including a loss of confidence and trust;
      4. for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or
      5. you fail to pay an invoice by the due date.
    3. You may terminate these Terms immediately upon written notice to us if:
      1. we commit a non-remediable breach of these Terms; or
      2. either Party, acting reasonably, consider that our working relationship has broken down including a loss of confidence or trust.
    4. To the extent permitted by law, on termination of these Terms in accordance with clause 9.2 or clause 9.3 you agree that any payments made are not refundable to you to the extent of all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you.
    5. If you terminate this Agreement, you must pay for all Services provided prior to termination, including any Services which have been performed and have not yet been billed to you.
    6. On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
    7. On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
    8. On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
    9. The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms. 
  2. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
    1. Service Standard: We will provide the Services with due care and skill, the Services will be fit for the purpose that we advertise, and we will supply the Services within a reasonable time. 
    2. ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). 
    3. Statutory Rights: Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services is governed solely by the ACL and these Terms. 
    4. Warranties: Except for your Statutory Rights, we exclude all express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind. 
    5. Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services, where it is affected by your delay in response or supply of incomplete or incorrect information.
    6. Referrals: We may provide you with contact details for third-party specialists in areas such as bio-identical hormones or peptide therapy. Please note that such referrals are not endorsements of these specialists, nor do we recommend seeking their services. We make no representations or warranties regarding the quality, accuracy, or reliability of their services and specifically disclaim any liability for their advice, services, or any failure to provide services.
    7. Availability: To the extent permitted by law, we exclude liability for:
  1. the Services being unavailable; and
  2. any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage. 
  1. Disclaimers: To the extent permitted by law we disclaim all responsibility and liability for:
  1. any time lost as a result of you entering the session late;
  2. products or services you purchase from a third party;
  3. any inaccurate or misleading information provided during the Services and any reliance by you on any such information;
  4. any technical difficulties that may affect the online sessions and/or recordings;
  5. any lost or corrupted recordings. We recommend that you also take notes during sessions;
  6. any indirect, special or Consequential Loss arising from any breach of these Terms;
  7. any direct or indirect Loss from your participation in the Services; and
  8. results experienced by each client may significantly vary.
  1. Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates. Our total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms and pursuant to the Booking Proposal for the 12-month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made. 
  2. This clause will survive the termination of these Terms.
  1. INDEMNITY
    1. You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
  1. any information provided by you to us that was not accurate, up to date or complete or was misleading or a misrepresentation;
  2. your breach of these Terms;
  3. any misuse of the Services by you, your employees, contractors or agents; and
  4. your breach of any law or third-party rights.
  1. We are liable for and agree to indemnify, defend and hold harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
  1. any information provided to you by us that was not accurate, up to date or complete or was misleading or a representation;
  2. our breach of these Terms;
  3. any defect or omission in the Services from or by us, our employees, contractors or agents;
  4. our breach of any law or third-party rights in connection with our provision of the Services to you.
  1. The Parties agree to co-operate with each other (at their own expense) in the handling of disputes, complaints, investigations or litigation that arises as a result of these Terms.
  1. GENERAL 
    1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
    2. Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
    3. GST: If and when applicable, GST or other foreign equivalent payable on our Services will be set out on our Invoices.  By accepting these Terms you agree to pay us an amount equivalent to the GST or other foreign equivalent imposed on these charges.
    4. Relationship of parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, employer-employee, general practitioner-patient or psychologist-patient. 
    5. Assignment: The Terms are personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld). 
    6. Severance: To the extent permitted by law, if any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
    7. Force Majeure: Neither Party will be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond their reasonable control. 
    8. Jurisdiction & Applicable Law: These terms are governed by the laws of Queensland and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.
    9. Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
  2. DEFINITIONS 
    1. Booking Proposal means the booking proposal to which these Terms are attached or form art of. 
    2. Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
    3. Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
    4. Consequential Loss means any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, goodwill, reputation, publicity, date or use;
    5. Fees as set out in the Booking Proposal.
    6. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations, or other foreign equivalent. 
    7. Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
    8. Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory;
    9. Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
    10. Patient Consent Form means the patient consent form provided to you. 
    11. Session means a session that forms part of the Services.
    12. Services as set out in the Booking Proposal.

13.13   Term means the term set out in the Booking Proposal.