CLIENT TERMS
These Client Terms, together with any Client Form (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which Sandstrom, Jessica trading as Howling Success Dog Training And Behaviour ABN: 70 141 635 891 (the Service Provider) provides Services (defined in clause 2) to you or the company which you represent (the Client).
1 CLIENT FORM, THIS AGREEMENT
(a) These Client Terms will apply to all the Client’s dealings with the Service Provider, including being incorporated in all agreements, quotations, orders or online booking confirmations under which the Service Provider is to provide services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Client Form or completes an online booking, or if the Client orders, accepts or pays for any services provided by the Service Provider after receiving or becoming aware of this Agreement or these Client Terms.
(c) In the event of any inconsistency between these Client Terms and any Client Form, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Client Form) will prevail over these Client Terms to the extent of any inconsistency.
2 SERVICES
(a) In consideration for the payment of the fees set out in the Client Form (Fees), the Service Provider will provide the Client with services set out in a Client Form (Services). Booked sessions are scheduled via the third-party online system and may be conducted in the Client’s home (with access granted to premises and the dog) or at hired facilities for group classes.
(b) The Services do not guarantee specific behavioural outcomes or results, as dog training success depends on factors including the Client’s consistent implementation and the dog’s individual characteristics.
(c) Unless otherwise agreed, the Service Provider may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable, including any upfront payments made via the online system, in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.
3 CLIENT OBLIGATIONS
3.1 PROVIDE INFORMATION AND LIAISON
(a) The Client must provide the Service Provider with all documentation, information and assistance reasonably required for the Service Provider to perform the Services.
(b) The Client agrees to liaise with the Service Provider as it reasonably requests for the purpose of enabling the Service Provider to provide the Services.
3.2 FOLLOW INSTRUCTIONS AND ACKNOWLEDGE RISKS
(a) The Client must follow all reasonable instructions provided by the Service Provider during sessions to ensure safety and effectiveness. Failure to do so may result in termination of services without refund.
(b) The Client acknowledges the inherent risks in dog training, including potential injury to persons, dogs, or property, especially with behavioural issues, bites, scratches, property damage, behaviour regression post-training, or interactions in public spaces, shared facilities, or the Client’s home where dogs may not be fully controlled, resulting in possible injury to the Client, family members, the dog, third parties, other animals, or wildlife, or the dog’s escape.
(c) The Client certifies that they have been informed of and understand these unavoidable risks, including compliance with the Companion Animals Act 1998 (NSW) by the Service Provider and its representatives.
(d) The Client warrants that their dog is healthy, fully vaccinated, microchipped as required under the Companion Animals Act 1998 (NSW), and not aggressive unless disclosed in the Intake Form.
(e) The Client further warrants that the dog has no known contagious diseases and agrees to indemnify the Service Provider for any losses arising from undisclosed conditions or inaccurate Intake Form information.
(f) If sessions involve children, the Client must provide parental or guardian consent and supervise them at all times.
(g) The Client acknowledges that they have had full opportunity to discuss all concerns about the foregoing risks with the Service Provider and its authorised representatives, and have made all inquiries and investigations to their satisfaction, including examination of the training area (if applicable) and any equipment provided by the Client, such as collars, leads, or harnesses.
3.3 FILMING CONSENT
The Client consents to the Service Provider filming sessions for training purposes, with footage uploaded to unlisted YouTube links for private client review only. Footage will not be published publicly without the Client’s written permission. If the Client prefers written notes only, they must notify the Service Provider in advance. The Client acknowledges that footage may capture incidental personal data and consents to its secure storage by the Service Provider.
3.4 INSURANCE
(a) The Client must maintain adequate insurance, including public liability and home contents insurance (covering damage by the dog or during sessions), and pet insurance for the dog’s health and third-party liability.
(b) The Service Provider maintains public liability insurance for its operations but excludes coverage for Client negligence or undisclosed risks.
(c) The Client acknowledges and agrees that if their dog is subject to a Notice of Intention to Declare, or has been Declared Menacing or Dangerous under the Companion Animals Act 1998 (NSW) (or any similar legislation), the Service Provider’s insurance does not provide any cover in respect of that dog. The Client further acknowledges and agrees that they remain solely and fully responsible and liable for any injury, loss, damage, cost, expense or claim (including legal fees on a full indemnity basis) arising directly or indirectly in connection with their dog. The Client indemnifies and holds harmless the Service Provider (including its officers, employees, contractors and agents) from and against all claims, demands, proceedings, losses, liabilities, costs and expenses whatsoever arising from or in connection with the behaviour, handling, training, presence or actions of their dog.
4 PAYMENT
4.1 FEES
The Client must pay to the Service Provider fees in the amounts and at the times set out in the Client Form or as otherwise agreed in writing. Fees are paid upfront via the online booking system and are non-refundable except as provided in clause 13.
4.2 INVOICES
Unless otherwise agreed in the Client Form:
(a) if the Service Provider issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all services within 7 days of receiving an invoice for amounts payable.
4.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in the Client Form.
4.4 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses, including travel to the Client’s home or hired facilities, reasonably incurred by the Service Provider in connection with a Client Form; and
(b) any third party costs incurred by the Service Provider in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Client Form.
4.5 GST
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by the Service Provider, the Client must pay the GST subject to the Service Provider providing a tax invoice.
4.6 CARD SURCHARGES
The Service Provider reserves the right to charge credit card surcharges, including any Stripe processing fees, in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
5 CHANGES
(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Client Form (Changes).
(b) Unless otherwise agreed in writing, the Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
6 ACCREDITATIONS
Unless otherwise agreed in writing:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by the Service Provider, bear an accreditation and/or a copyright notice including the Service Provider’s name in the form, size and location as directed by the Service Provider; and
(b) the Service Provider retains the right to describe the Services and reproduce, publish and display the Deliverables in the Service Provider’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
7 THIRD PARTY SERVICES
(a) If the Service Provider is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) Provided that the Service Provider has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party, such as the online booking platform, that the Client or the Service Provider acquires as part of providing the goods or services and the Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, the Service Provider cannot provide the Services to the Client and clause 13 will apply.
8 CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause 8 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by the Service Provider to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
(c) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, including dog behavioural details from the Intake Form, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(d) The Service Provider will handle all personal information in accordance with the Privacy Act 1988 (Cth), including data from the Intake Form. The Client consents to the collection, use, and storage of such information for providing the Services.
9 INTELLECTUAL PROPERTY
9.1 CLIENT CONTENT
(a) The Client grants to the Service Provider (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(b) The Client:
(i) warrants that the Service Provider’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii) will indemnify the Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
9.2 DEVELOPED IP
All Developed IP will be solely and exclusively owned by the Service Provider. The Client must not share, distribute, reproduce, or provide customised training plans, materials, or footage to third parties without the Service Provider’s written consent, and any breach may result in termination without refund.
9.3 THE SERVICE PROVIDER IP
(a) The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Service Provider IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(b) Unless otherwise agreed in writing by the Service Provider or in this clause 9.3, the Client will not acquire Intellectual Property Rights in any Service Provider IP under this Agreement or as part of receiving the Services.
9.4 DEFINITIONS
For the purposes of this clause 9:
(a) “Client Content” means any Material supplied by the Client to the Service Provider under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(b) “Developed IP” means the Deliverables and any other Material produced by the Service Provider in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables, including customised training plans, session notes, and filmed footage.
(c) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
(d) “Service Provider IP” means all Material owned or licensed by the Service Provider that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
10 WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded, including any warranties as to the effectiveness of the Services or achievement of specific training outcomes.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the services provided.
11 LIABILITY
11.1 LIABILITY
To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to the Service Provider under this Client Form.
11.2 CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any services provided by the Service Provider, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
11.3 INDEMNITY
The Client indemnifies the Service Provider against all losses, claims, damages, and liabilities arising from:
(a) injury or damage caused by the Client’s dog, including to the Service Provider, third parties, or property;
(b) the Client’s breach of the Companion Animals Act 1998 (NSW) or any other applicable laws;
(c) failure to follow instructions or disclose relevant dog information in the Intake Form; or
(d) any breach of warranties under this Agreement.
12 SUBCONTRACTING
The Service Provider may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
13 TERMINATION
13.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party, including cancellations or reschedules of booked sessions.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date). This agreement will end on the date specified in the notice, subject to the cancellation policy below.
(c) On the End Date, the Service Provider will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs the Service Provider has incurred on the Client’s behalf up to the End Date; and
(iii) if terminated by the Client, the Service Provider’s pre-estimated genuine losses as a result of the Client ending this agreement,
(together, the Outstanding Amounts)
(d) The Client will pay the Outstanding Amounts to the Service Provider on the End Date, unless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, the Service Provider will hand over any completed deliverables.
(f) If the Service Provider terminates this agreement pursuant to this clause, the Service Provider will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
(g) Specific Cancellation and Rescheduling Policy:
(i) Cancellations or reschedules 48 hours or more before the session: no fee.
(ii) Less than 48 hours but 24 hours or more: $40 reschedule fee or $100 cancellation fee.
(iii) Less than 24 hours: forfeit the session and all fees paid.
For packages, forfeited sessions do not entitle refunds for remaining sessions unless otherwise agreed.
13.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 14. The indemnities, warranties and liability caps in clause 11 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 13.1 will not limit or otherwise effect the Service Provider’s rights under this agreement, at law or otherwise in equity; the Service Provider’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
13.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 13.1 or 13.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 9.
13.4 REFUNDS
Refunds, where applicable under this clause, will include all fees paid except any Stripe or payment processing fees, and will be processed within 14 days.
14 IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.
15 NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Client Form and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
16 FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic, or animal-related events such as dog illness or quarantine; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 16(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
17 GENERAL
17.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
17.2 AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
17.3 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
17.4 SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
17.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
17.6 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
17.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
17.8 COSTS
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
17.9 ENTIRE AGREEMENT
This Agreement embodies the entire Agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
17.10 INTERPRETATION
(a) singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d)(defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
(l) (business days) “Business Day” means a day that is not a Saturday, Sunday, or public holiday in Sydney, New South Wales.
Howling Success Dog Training and Behaviour 