Interpretation

In these terms and conditions:

• Agreement means this agreement between Us and You, which is formed when You pay the Initial Fee for the Services.

• Force Majeure Event means any event beyond our reasonable control, including but not limited to an act of God, a fire, flood, explosion, public health emergency strike; internet outage; civil disorder; delay in transportation requirement of any governmental authority; delay in transportation war; or riot.

• Fee means the fee payable for the Services under this Agreement. 

• Government Guidelines means the “Your Healthy Guidelines” attached to this Agreement.

• Initial Fee means the fee you for the Services as listed at https://www.wholebaby.au/nutrition-packages on the commencement of this Agreement.

• Intellectual Property means all rights, whether registered or not, in copyright, design, trade marks, rights in confidential-information, know-how, trade secrets, patents, and all other rights of intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.

• Materials means any of the written, oral or electronic materials we provide you in connection with the Services, in any form.

• Privacy Policy means our privacy policy available at [insert]

• Services means:

  • one of the following packages, as further detailed at https://www.wholebaby.au/nutrition-packages, the precise package which is agreed between us prior to or on entering into this Agreement:

    • Nourishing Two: Pregnancy Nutrition;

    • Nourished Postpartum: Heal, replenish and build;

    • Nourishment for Baby: Support for breastfeeding,

  • Any other services agreed in writing between You and Us.

• Us or We or Our means the service provider, being Annabel Fleming, trading as Whole Baby

• You means you.

• Your Doctor means Your general practitioner, obestrician or any other qualified health professional you have consulted regarding your health.  

Term

• This Agreement commences when you pay the Initial Fee and terminates in accordance with clause 7.

• You acknowledge that by paying the Initial Fee an agreement is formed between You and Us to provide you with those parts of the Services that You requested or otherwise agreed between You and Us.

Fees

• In addition to the Initial Fee, if You and We agree to provide You with additional Services, You agree to pay us an hourly fee of $[insert] for the provision of such additional Services. You acknowledge that, except in the case of a manifest error by us, an email or invoice by us detailing how much time we have spent on any additional Services will be sufficient evidence of such time.

• Where you have agreed to pay for additional Services, you agree to pay for these within 5 days of receipt of an invoice from Us.

Your responsibilities and promises

4.1 Acknowledgement

You acknowledge that:

• The Services that We provide are services to [depending on the exact package you purchase, educate you in healthy eating for the pregnancy and postpartum period].

• The Services are not medical services, and do no replace, substitute or supplement any medical advice of your doctor, pediatrician or other qualified health professional.

• When the Services include education during your pregnancy:

  • You have read and have understood the Government Guidelines; and

  • You understand that there are a number of foods you should avoid during your pregnancy.

• The Services we provide under this Agreement are for designed for You only.

4.2 Representations

You promise that:

• Before agreeing to purchase the Services, you consulted Your Doctor regarding any concerns about You using the Services.

• If You have any concerns about Your health, you will immediately consult Your Doctor.  

• You will at all times follow the Government Guidelines and if at any time you feel that there is a conflict between the guidance that We provide to You and the Government Guidelines You will immediately clarify this with Us.

• You have disclosed to us any medical conditions that You may, or where you are consulting us when you are still breastfeeding, your child have that could be impacted or exacerbated by the Services.

• You are at least 18 years of age.

• You have the right to enter into this Agreement.

• If You are unsure about any guidance that we provide to You, You will immediately clarify this with Us.

• If We recommend that you seek advice from Your Doctor, You will immediately go and seek that advice.

• Any information that You provide to Us is accurate, current and complete.

• You will not share the information that we provide you with a third party to be used for any other person.

Our responsibilities and promises

5.1 Representations

We promise that:

• We will provide the Services to you in accordance with this Agreement.

• We will do our best to keep to the calls that we schedule, but if we do need to reschedule we will do so within 5 days.

• We will keep any personal information that You provide Us in accordance with our Privacy Policy;

Intellectual Property

• You acknowledge that we own any Intellectual Property in any of the Materials that we provide to You.

• We provide you with a personal, non-assignable, limited licence to use the Intellectual Property in any of the Materials that we provide to you for your own personal purposes.

• You acknowledge that, except with our prior written consent, You have no right to reproduce, alter, sell, create derivatives of, transfer or enhance our Materials.

• You agree that if you provide any information, images or comments on our social media sites:

  • Unless otherwise stated, You are the owner of such information, images or comments; and

  • Provide Us with permission to use such information, images or comments on our social media, website or other channels.

Termination

7.1 Termination by Us

We may terminate this Agreement if:

• You do not provide us with payment for the Services within 5 days of a written demand for payment;

• We believe You have been verbally abusive or confrontational;

• You have failed to attend two or more scheduled calls with Us without giving Us at least one hour’s prior notice that you will not be able to attend such scheduled calls;

• You fail to respond to two emails from us within a seven-day period; and/or

• You have otherwise breached this Agreement.

7.2 Termination by either party

Either party may terminate this Agreement, for any reason, by giving the other party seven days’ written notice.

7.3 Termination for an event beyond Our control

If we are prevented from performing an obligation under this Agreement for more than one month because of a Force Majeure Event, we may terminate this Agreement by providing you with 7 days written notice.

Effect of Termination

8.1 Refund

If this Agreement is terminated under clause 7.3, or by Us under clause 7.2 within 30 days of such termination we will provide You with a partial refund of the Fees paid by you, proportionate to the that part of the Services that You were not provided with due to the termination.

8.2 No-refund

If this Agreement is terminated:

• By Us under clause 7.1; or

• by You under clause 7.2;

  We will not be required to provide You with a refund of any payment You have made to Us. Any payment made by You is consideration for providing any of the Services to You.

Risk

9.1 Damages

Despite any other provision of this Agreement, to the maximum extent permitted by law, You acknowledge that the maximum damages You will be entitled to for any loss, damage, claim that You suffer in connection with the Services will be an amount equal to three times the cost of the Services paid by You to Us in the 12 month period before you made a claim.

9.2 Release

You agree that except in the case of our gross negligence, You release Us from any claim, loss, damage or expenses caused or suffered by You or, where the services involve advice when you are breastfeeding, your Child in connection with the Services, including but not limited to any claim suffered by You or your baby because of the communication or transmission of a disease, epidemic or pandemic associated with Us performing the Services.

9.3 Indemnity

You agree to indemnify Us for any loss, cost, damage, claim or expense that we incur:

• As a result of Your breach of this Agreement; or

• As a result of a claim brought by any of or on behalf of your family members in connection with the Services.

General

10.1 Entire agreements

This Agreement contains the entire agreement between Us and You in relation to the Services or any other services or advice provided by Us and may only be amended in writing signed by all parties.

10.2 Notice

Notices must be given to Us at info@wholebaby.au. Notices must be given to You at the email address most recently provided to Us. Notices will be deemed to be received when they are sent, whether or not the email communication is accessed or read by the recipient.

10.3 No assignment

This Agreement is personal to You and cannot be assigned to a third party.

10.4 No waiver

No delay or indulgence by a Us or You in enforcing Our rights or Your rights under this Agreement will prejudice or restrict Our rights or Your rights (as the case may be) or operate as a waiver of a subsequent breach.

10.5 No disadvantage to party preparing section

No part of this Agreement is to be construed to the disadvantage of Us because we are responsible for its preparation.

10.6 Parties must do all things and sign all documents

At Our request, You must do all things and sign all documents necessary to give effect to this Agreement.

10.7 Severability

If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.

10.8 Jurisdiction

This agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that state.