General Terms & Conditions

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OVERVIEW

1. These Terms and Conditions govern the provision of Services by Kelly Benton (trading as Kelly Suggate) ABN 57 905 786 917 (referred to as “we”, “us”, “our” or Service Provider) to the person, business or entity acquiring the Services (referred to as “you”, “your” or Client). 

2. By booking an appointment, submitting an intake form, paying for Services or otherwise receiving Services, you agree to be bound by these Terms.

3. The Service Provider provides nutrition consultations and the Client wishes to enter into an agreement for the services as set out in the Schedule. The Client will engage the Service Provider to provide the Services to the Client.

4. These Terms, together with any booking confirmation, intake form, fee schedule or additional policies referenced (including Privacy Policy and Informed Consent documents), form the agreement between you and us (Agreement).

5. This Agreement sets out the terms and conditions under which the Service Provider will provide the Client with the Services.

6. If there are any inconsistencies between the T&Cs and the Schedule, the Schedule will prevail to the extent of the inconsistency.

7. Any variation to the Schedule must be agreed upon in writing by all parties.

8. This Agreement commences upon your acceptance of these Terms (including via online booking or written confirmation) and continues until terminated in accordance with these Terms.

9. The Client acknowledges that they may also be required to agree and accept Additional Terms prior to accessing some or all of the Services including reviewing the Privacy Policy, Website Terms and Conditions, and Cancellation and Refund Policy.

10. The Client acknowledges that they have read and understood the T&Cs and the Schedule prior to signing the Agreement and have sought professional and/or legal advice should they require clarification on any aspect of the Agreement.

 

SERVICES AND OBLIGATIONS

1. Suitability

   1. Prior to Commencement, we will invite you to complete an intake form.

   2. We will rely upon the information provided by you in the intake form and exercise our professional judgement based on our expertise and the information available to us to determine the most appropriate service.

   3. You are responsible for providing accurate and complete information to us to facilitate the delivery of appropriate services.

   4. You agree that we may, in our absolute discretion modify or cancel our services if you have provided inaccurate or false information during the intake form or consultation.

2. Service Provider Obligations

   1. We are committed to providing you with accurate and comprehensive information about the benefits, risks, and potential outcomes of any program or service offered.

   2. We agree to provide the Services as outlined in the Schedule and as mutually agreed between the parties. You acknowledge that the Services are limited to those specified in the Schedule and do not extend beyond the agreed scope. If Services outside the scope are required, these will be quoted separately at our Hourly Rate.

   3. We will perform the Services to the best of our ability and in accordance with applicable industry standards.

   4. Our services will be provided virtually OR at the Location as specified in the Schedule.

   5. While we strive to achieve positive results and outcomes, we cannot guarantee specific results or outcomes, as individual responses to treatments and programs can vary.

   6. We will work closely with you to establish realistic expectations, regularly evaluate your progress, and make necessary adjustments to your treatment plan or program to optimise your outcomes however the ultimate responsibility for implementing and following the recommended program rests with you as the client.

   7. We reserve the right to adjust our fees for services provided, as necessary and in accordance with Applicable Laws and professional guidelines.

   8. Any fee adjustments will be communicated to you in writing, providing reasonable notice prior to the effective date of the fee increase.

   9. The notice will outline the new fees and the reasons for the adjustment, taking into account factors such as operating costs, inflation, and industry standards.

3. Client Obligations

   1. You acknowledge that you are solely responsible for determining whether the Services outlined in the Schedule are appropriate for you.

   2. You are encouraged to ask questions, seek clarification, and actively participate in the decision-making process regarding engaging our Services.

   3. In the event that you sign up to other courses or programs we offer, you may be required to enter into a separate Agreement applicable to the provision of those services.

   4. You agree to communicate any concerns, changes in your health status, or unexpected reactions to treatments promptly, so that we can provide appropriate support and adjustments.

You:

1. must not be under the influence of drugs or alcohol while the Services are being performed;

2. are responsible for providing accurate and complete Client Information to us to facilitate the delivery of appropriate services;

3. proactively update any Client Information as soon as reasonably practical during the Term of the Program to ensure continuity of Service;

4. must seek advice from your doctor or other medical health professional prior to using our services and where there are any changes to your health or any medical condition;

5. are solely responsible for informing your medical providers of the Services being provided under this Agreement and we shall not be held responsible for communicating or coordinating with your medical providers regarding the Services being provided unless it is necessary to do so;

6. understand that the Services we provide are not intended to nor do they replace any medical, psychological, or other health advice;

7. will notify us immediately if there is a medical diagnosis during the course of the Services being provided that may impact the Services we offer you; and

8. will ensure punctual attendance at all appointments that form part of the Services.

 

Mutual obligations

Each party agrees that the other party will not be liable for any failure to carry out any obligation under this Agreement to the extent it is caused by the failure of the other party to comply with their obligations under the Agreement.

 

FEES

1. Payment Methods: All Fees will be payable via electronic funds transfer to our nominated bank account prior to your appointment. You will receive a Tax Invoice from us prior to payment being due in each instance (which will also contain a link to make payment).

2. Additional Fees: You agree to cover any out-of-pocket expenses incurred by us in the course of delivering the Services to you. These additional expenses will be approved by you in writing prior to being incurred.

3. Recovery of unpaid Fees: If you do not pay us any portion of the Fees within the stipulated timeframe, we may charge you interest at the Interest Rate set out in the Schedule. If unpaid Fees are recovered through an external agency, you acknowledge that you will be responsible for the costs involved in the recovery.

 

CANCELLATIONS AND RESCHEDULING

1. Service provider cancellation or rescheduling request

   1. We reserve the right to cancel the Services or reschedule them at a mutually convenient time or to an Alternative Location, for any reason. If the Services have been cancelled by us and not rescheduled, we will refund the Fees paid for the cancelled portion of the Services.

   2. If we are delayed or prevented from performing the Services or meeting the Key Dates, either due to your non-compliance with your obligations or a Force Majeure Event, we reserve the right to reschedule the Key Dates.

   3. If we are unable to reschedule the Key Dates due to a Force Majeure Event, this shall not be deemed a breach of the Agreement. 

2. Client cancellations or rescheduling requests

   1. Where you wish to cancel or reschedule a Session for any reason, including illness, you must notify us via our nominated phone or email address at least 48 hours prior to the scheduled start time for the session.

   2. Providing notice with less than 48 hours’ notice will result in forfeiture of the session(s) and may result in a Cancellation Fee being charged.

3. Failure to Attend

   1. If you fail to attend a scheduled appointment without providing any prior notice, you may be

   2. Charged a ‘No Show Fee’ equivalent to 100% of the Fees to compensate for the time reserved.

   3. Persistent cancellations or failure to attend a scheduled appointments may result in our exercising our right to terminate the Agreement in accordance with clause 8.

4. REFUNDS and CHARGEBACKS

   1. In the event that we are unable to provide the agreed-upon services due to circumstances beyond our control, you are entitled to a full refund of any Fees paid for the unperformed services.

   2. You cannot request a refund if:

      1. the reason for termination is outside of our control;

      2. you change your mind;

      3. you fail to clearly explain your needs to us; or

      4. you insist on the Services being performed in a way that is against our advice.

5. Refunds are provided in compliance with any and all Applicable Laws.

6. Where you have received a refund either directly from us or via a Chargeback the following will apply:  

   1. If we have provided you with access to any Confidential Information, including copies of any workbooks you must destroy all electronic copies downloaded by you and provide us with written notice of the above; or 

   2. where you continue to use or access any Confidential Information after the Refund is issued, we reserve the right to recover any outstanding tax invoice through a formal debt recovery process including any Interest payable on the outstanding amount. 

7. For the purposes of these Terms "Chargeback" means the reversal of a payment in response to a request that a customer files directly with their issuing bank or payment network provider.   

 

INTELLECTUAL PROPERTY

1. We retain sole ownership of all Intellectual Property Rights (including Moral Rights) in our Services, programs, courses, and materials, whether created prior to or during provision of the Services. These materials are not to be used by you without our express written permission.

2. Any original materials are provided to you under a single-use licence for your individual purposes and are not to be used for commercial purposes.

3. You acknowledge that all Third-Party Materials are the exclusive property of their exclusive owners, and where such materials are required to perform the Services, you agree to pay the costs associated with their use.

4. If required, you agree to execute all documents reasonably requested by us in relation to the formal assignment of any Intellectually Property between the parties.   

5. If you infringe our Intellectual Property Rights, we reserve the right to terminate this Agreement with immediate effect and pursue legal remedies.    

 

MARKETING

1. Evidence-Based Information:

   1. We are committed to providing evidence-based information to inform patients about our services, treatment options, and practices.

   2. Our marketing materials, website, social media content, and any other forms of communication will focus on evidence-based information, such as clinical studies, research findings, or professional expertise, to educate patients about the benefits, risks, and outcomes associated with our services.

2. Case Studies and Patient Stories:

   1. De-identified case studies or patient stories may be used for educational purposes to highlight general treatment approaches or share experiences without making claims of specific outcomes or effectiveness.

   2. Client privacy and confidentiality will be strictly maintained, and any identifying information will be removed to protect their privacy.

3. Educational Content:

   1. We will provide educational content that aims to enhance patient understanding of treatment options, and self-care strategies.

   2. This content will focus on general information about the benefits of specific treatments or interventions supported by scientific evidence, without making individualised claims or promises.

   3. Compliance with Applicable Laws:

   4. We are committed to ensuring compliance with Applicable Laws.

   5. Our marketing practices and materials will be regularly reviewed and updated to ensure adherence to Applicable Laws.

   6. This clause 7

   7.  survives termination or expiry of this Agreement.

 

TERMINATION

1. We may terminate this Agreement with immediate effect if:

   1. we determine that in our professional opinion, you are not suitable to undertake the program;

   2. you fail to provide the Client Information or other information within a reasonable time of our request;

   3. you persistently cancel or reschedule appointments;

   4. Failure to adhere to practice policies and guidelines;

   5. you fail to pay the Fees in accordance with the Payment Terms set out in this Agreement, including any applicable Schedule, booking confirmation, invoice or other written communication issued by us;

   6. you otherwise breach any obligation under the Agreement;

   7. we consider that mutual trust or confidence no longer exists; or

   8. we determine that we are no longer able to perform the Services for any reason.

 

If we terminate the Agreement in accordance with clause 8.1, we will, at our sole discretion:

1. complete all work for which you have paid the associated Fees; or

2. refund Fees paid for work not yet performed, or not able to be performed as a result of termination. 

 

Either party may terminate the Agreement for any reason on providing 14 days’ written notice, or immediately if the other party:

1. is unable to meet their obligations due to a Force Majeure Event for a period exceeding 30 days;

2. commits a material breach of the Agreement that is capable of remedy, and fails to remedy it within 7 days; or

3. commits a material breach of the Agreement that is not capable of remedy; or

 

If the Agreement is terminated:

1. our obligation to perform the Services will cease;

2. you must immediately pay all Fees payable for the work completed at the date of termination;

3. provided you have paid all Fees due, we will provide you with all work completed up to the date of termination that comprises the Services;

4. any Fees paid for Services not yet performed may be refunded at our sole discretion; and

5. each party must return or destroy (at the other party’s request) all Confidential Information of the other party (with the exception of information required to be retained by law or for accounting purposes).

 

WARRANTIES AND INDEMNITIES

Warranties:

1. We warrant that we will provide Services in a professional and competent manner, adhering to Applicable Laws.

2. We strive to exercise reasonable skill and care in the delivery of our Services, taking into account the best interests of our patients and their specific healthcare needs. However, it is important to note that healthcare outcomes can vary, and we cannot guarantee specific results or outcomes.

3. Nothing in the Agreement excludes, restricts, or modifies any condition, warranty, right or remedy implied or imposed by any law that cannot be lawfully excluded, restricted, or modified.

4. If any warranty or condition is implied into the Agreement and cannot be excluded, our liability is limited to resupplying the Services or payment of the cost of having the Services resupplied.

Indemnities:

1. You agree to indemnify and hold us harmless from any claims, damages, losses, liabilities, costs, and expenses arising out of or related to your use of our services, except in cases of our proven negligence or misconduct.

2. This indemnity includes, but is not limited to, any claims arising from the provision of incomplete or inaccurate information, non-disclosure of relevant medical history, or failure to follow recommended treatment plans or advice.

Limitations:

1. Our liability for any claim, whether arising from negligence or otherwise, is limited to the extent permitted by law and will not exceed the fees paid for the specific Services in question.

2. We are not liable for any indirect, incidental, consequential, or special damages arising out of or in connection with our Services, including but not limited to lost profits, loss of data, or loss of opportunity.

3. Any express or implied warranty or condition relating to the Agreement or its subject matter that are not contained in the Agreement are excluded to the maximum extent permitted by law.

4. Neither party will be liable or held in breach of the Agreement for any failure to perform its obligations to the extent that said failure is caused by the other party’s noncompliance, negligence, or misconduct.

5. We will not be liable for any loss or damage suffered by a third party in connection with the Agreement.

6. Each party agrees to take reasonable steps to mitigate any loss, damage, or expense it may suffer or incur, arising out of anything done or not done by the other party in connection with the Agreement.

7. This clause 9 survives termination or expiry of this Agreement.

 

CONFIDENTIALITY AND PRIVACY

1. Each party agrees that, unless it has the prior written consent of the other party, it will:

   1. keep the Confidential Information of the other party confidential at all times;

   2. ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and

   3. where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe.

2. These obligations of confidentiality do not apply to any disclosure that:

   1. is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

   2. is required by Applicable Law; or

   3. relates to Confidential Information that is publicly available through no fault of the receiving party or was rightfully received from a third party without restriction and without the breach of any obligation of confidence

3. Any Confidential Information supplied to us that incorporates personal information will be dealt with in accordance with our Privacy Policy, which is available on our website.

4. This clause 10 survives termination or expiry of this Agreement.

 

MISCELLANEOUS

1. Relationship of Parties: We are independent contractors and the relationship between you and us does not constitute that of a partnership, joint venture, agency or employer and employee. Nothing in this Agreement gives either party the authority to bind the other in any way, nor impose any fiduciary duties on the other party.

2. Non-Disparagement

   1. Without limiting either party’s rights, each party agrees not to disparage the other or provide negative feedback in a public forum (such as social media or an online review platform) at any time during or following the Term. Where one party is dissatisfied, the issue must be dealt with in accordance with the provision of this Agreement relating to disputes.  

   2. In the event that either party breaches this provision by engaging in disparagement or posting negative feedback in a public forum, the non-breaching party has two options: 

      1. The non-breaching party may initiate the dispute resolution process as outlined in clause 11.4 of this Agreement to resolve the matter amicably. 

      2. The non-breaching party may pursue legal action to seek remedies, including injunctive relief and damages, as allowed by applicable laws. 

   3. The choice between these options will be at the sole discretion of the non-breaching party. 

3. Conflict of Interest: Each party warrants that they are free to enter into this Agreement and that it shall not violate the terms of any other agreement between that the party and a third party.

4. Disputes

Good-Faith Resolution:

1. In the event of any dispute or disagreement arising out of or relating to our services or this agreement, both parties agree to make a genuine effort to resolve the matter amicably through good-faith negotiations.

2. Each party will provide the other party with a written notice specifying the nature of the dispute and their proposed resolution.

Mediation:

1. If the dispute cannot be resolved through direct negotiations within a reasonable timeframe, both parties agree to engage in mediation as the next step in the dispute resolution process.

2. Mediation will be conducted by a neutral third party agreed upon by both parties and appointed by a mutually agreed-upon mediation service provider.

3. The mediation process will be conducted in accordance with the rules and procedures of the chosen mediation service provider.

4. Both parties agree to actively participate in the mediation process and make reasonable efforts to reach a mutually acceptable resolution.

Legal Action:

1. If mediation fails to resolve the dispute, or if either party chooses not to engage in mediation, any unresolved dispute may be escalated to legal action as a last resort.

2. Legal action will be governed by the laws and regulations of the jurisdiction in which this Agreement is enforceable.

3. Both parties agree that any legal action will be brought before the appropriate courts of the jurisdiction.

Confidentiality:

1. All discussions, negotiations, and communications involved in the dispute resolution process, whether through direct negotiations, mediation, or legal action, will be treated as confidential by both parties and their representatives.

2. Any information disclosed during the dispute resolution process will be used solely for the purpose of resolving the dispute.

 

Notices

Where a party gives notice, it must be done in writing to the email address specified in the Schedule, or by post to the residential or business address specified in the Schedule. For email, the notice will be considered delivered on the date it was sent, unless a delivery failure notice was received. For registered or express post, the notice will be considered delivered within 5 Business Days of being sent.

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Entire Agreement

This Agreement constitutes our entire agreement with you about the subject matter. It supersedes all previous agreements, understandings, and negotiations, whether written or verbal.

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Governing Law

The formation, construction, performance, and enforcement of the Terms will be in accordance with the laws in force in New South Wales Australia. You and We submit to the non-exclusive jurisdiction of the courts of that jurisdiction.

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Acceptance

This Agreement becomes binding when you accept these Terms, including by booking an appointment, submitting an intake form, making payment, clicking “I agree”, or otherwise receiving the Services.

Your continued use of the Services constitutes ongoing acceptance of this Agreement.

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Amendment or Variation

The Agent reserves the right to amend or vary the Agreement and the Agent will notify the Brand of the changes.  The Agent can choose to terminate if they do not accept the amendments and/or variations.  If the Brand continues to engage the services, the Brand is deemed to have accepted the amendments and/or variations to these Terms. 

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Validity

If any provision of the Agreement is held invalid or unenforceable, it will either be severed from the Agreement or replaced by a valid or enforceable provision. If applicable, any new provision will take effect immediately. All other provisions will remain in effect throughout.

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Assignment

You are not permitted to assign the Agreement or otherwise deal with any Advertising or rights under it without our prior written consent. Conversely, we may do so without your consent.

 

Interpretation

All headings are for ease of reference and do not affect the interpretation of the Agreement. Words in the singular include the plural and vice versa, and references to “including” and similar words do not imply any limit.

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DEFINITIONS

In the agreement, the following terms have the stated meaning unless a contrary intention appears.

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Applicable Law: means any applicable statute, regulation, standards, code of practice, by-law, ordinance, policy, or subordinate legislation in force from time to time that may apply to the Services or party’s obligations under the Agreement.

Business Day: means a day other than a Saturday, Sunday or public holiday in NSW, Australia.

Business Hours: means 9am to 5pm on any Business Day.

Client Information: means any information provided by you to us in connection with the Services, including (without limitation) information provided via intake forms, health questionnaires, booking forms, consultations (whether verbal or written), treatment plans, emails or any applicable Schedule.

Commencement Date: means the date you first accept these Terms, including by booking an appointment, submitting an intake form, making payment, or otherwise engaging our Services.

Confidential Information: Confidential Information may include, but is not limited to:

Personal Health Information:

a. Personal and medical history, including past and current health conditions, treatments, medications, test results, and other healthcare-related information.

b. Any other information that can reasonably identify an individual and is protected under applicable privacy and data protection laws.

 

Treatment Plans and Strategies:

a. Information related to the specific treatment plans, strategies, or interventions proposed or implemented by the health professional for the patient's care.

b. This may include details about therapeutic approaches, diagnostic assessments, recommendations, and any other confidential information shared for the purpose of providing healthcare services.

 

Professional Knowledge and Expertise:

a. Proprietary or confidential information related to the Service Provider’s specialised knowledge, research findings, treatment techniques, and other professional expertise not publicly available.

b. This may include unpublished research, trade secrets, or other confidential information that is disclosed to the patient for the purpose of their healthcare.

 

Financial and Business Information:

Any non-public financial or business-related information that is shared between the parties, such as fee schedules, billing information, or contractual terms.
 

Force Majeure: means illness, injury, emergency, pandemic, epidemic, war, act of God, sudden event, or other circumstance beyond Our control.

GST: means goods and services tax chargeable under A New Tax System (Goods & Services Tax) Act 1999 Cth.

Intellectual Property Rights: means all current and future registered and unregistered rights associated with patents, copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, inventions (including patents), domain names, discoveries, data, databases, business strategies, digital products, templates, and all other rights resulting from intellectual activity. These rights apply to any person who is the original creator, whether the creation occurred before or after the Commencement Date, and regardless of the country in which it was created. The creation may be connected with the individual or may be independently or jointly conceived and produced by them in the course of their engagement under the Agreement.

Key Dates: means any dates relating to the Services, including appointment dates, program start dates, payment due dates or other timeframes specified in a Schedule, booking confirmation or other written communication issued by us.

Moral Rights: means the moral rights granted under the Copyright Act 1968 (Cth) including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship and any similar rights existing under foreign laws.

Schedule: Schedule means the booking confirmation, invoice, or order summary issued to the Client at the time of booking, which sets out the service description, fees, applicable dates, and any other transaction-specific details, and which is incorporated into these Terms & Conditions by reference.

Services: means the health and nutrition services provided by us, as described in the Schedule, booking confirmation, treatment plan, website or any written communication issued by us from time to time.

T&Cs: means these General Terms and Conditions.

Tax Invoice: has the meaning as set out in A New Tax System (Goods & Services Tax) Act 1999 Cth.

Term: means the period commencing on the Commencement Date and continuing until this Agreement is terminated in accordance with these Terms.

Third Party Materials: means all materials, including any documents, designs, photography, and information of a Third Party.

You/Your/Client: means any individual who books, purchases or receives our Services, including any person acting on behalf of a minor where applicable.

We/Us/Our/Service Provider: Means Kelly Benton (trading as Kelly Suggate) ABN 57 905 786 917 

 

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