Terms and Conditions

1                Engagement
(a)               The Company will engage the Contractor for the contract services set out in Item 1 of Schedule 1 to this letter (Services).

2                Nature of relationship

2.1              Independent contractor
The Contractor will provide the Services to the Company as an independent contractor.

2.2              Binding the Company
The Contractor must not, without the written approval of the Company, either during or after the Term:

(a)               bind or commit or purport to bind or commit, a Group Company; or
(b)               pledge the credit of any Group Company for any purpose.

2.3              Waiver
The Contractor agrees to waive any claim of rights or benefits, whether present or future, afforded to employees of the Company.

2.4              Misrepresentation
The Contractor must not:

(a)               at any time, during or after the termination of the Contractor’s engagement, intentionally make any untrue statement in relation to the Company or a member of the Group; or
(b)               after the termination of the Contractor’s engagement, represent itself or any of its personnel as engaged by the Company as a contractor, or connected with a Group Company in any way.

3                Performance

3.1              Manner of performance
The Contractor, or any personnel employed or engaged by the Contractor in the performance of the Services, must:

(a)               ensure that the Services are performed in a proper, skilful and efficient manner;
(b)               comply with all time limits for the performance of the Services as required by the Company;
(c)               not allow any other engagement to interfere with or take priority over the Contractor’s performance of the Services;
(d)               act with the utmost good faith in all of the Contractor’s dealings with each Group Company; and
(e)               ensure that whilst performing the Services the Contractor will not intentionally do anything which is harmful to any Group Company.

3.2              Offer to perform Services
(a)               During the Term, the Company may elect to offer the Contractor the opportunity to perform the Services in accordance with this Agreement.  The Company’s offer will specify the time, date and duration of the period in which Services are to be performed.
(b)               Where the Contractor accepts an offer made under clause 3.2(a), it must acknowledge its acceptance below before acceptance is effective.
(c)               If the Contractor accepts an offer under clause 3.2(b), it will be paid the rates set in Item 2 of Schedule 1 (Contract Fee) for the performance of the Services.
(d)               The Company does not guarantee that it will procure the Services for a minimum number of hours.

3.3              Reporting
The Contractor will at all times be required to promptly report to James Gribble, Ben Tullipan or any other person the Company requires for information, explanation and advice in relation to the provision of the Services.

3.4              Equipment
The Contractor will, at its own expense, unless otherwise agreed with the Company, provide all equipment necessary to carry out the Services.

3.5              Non-exclusivity
Subject to the Contractor’s obligations set out in this letter, the Contractor may provide other services to third parties during the Term.

3.6              Compliance with laws and policies
During the Term, the Contractor agrees to:

(a)               comply with all laws relevant to the performance of the Services, including, but not limited to work health and safety and discrimination laws; and
(b)               produce any working with children, criminal record or police checks in a form satisfactory to the company;
(c)               in the case that the Contractor is a PGA member, provide evidence that their membership is valid and ongoing whether by scanning a copy or sending a photo of the Contractor's membership card to the Company or obtaining letter of confirmation from the PGA of Australia.
(d)               comply with any requirements of the National Disability Insurance Scheme and other Insurance schemes for the screening of workers in respect of any personnel employed or engaged by the Contractor to perform the Services; and
(e)               abide by the Company’s policies and procedures to the extent they are relevant to the performance of the Services, as notified to the Contractor by the Company.  These policies are found on the Company’s website and by signing this agreement the Contractor confirms they have read and understood them in their entirety and will act accordingly.

4                Contract Fee
(a)               The Contractor will provide an invoice to the Company at the end of each month in which the Services are performed. 
(b)               Assuming 4.(a) is completed in a timely manner, by the 15th of the following month, the Company will pay into a bank account nominated by the Contractor, the amount of Contract Fee due and payable.
(c)               The Contractor will be required to pay for any expenses incurred in providing the Services.
(d)               The Company may require the Contractor to provide timesheets or other documents to verify the Contract Fee.
(e)               The Contract Fee is the total consideration payable to the Contractor for the Services.
(f)                Nothing in this letter entitles the Contractor to be paid a minimum contract fee.

5                Confidential Information
5.1              Confidentiality Obligations
(a)               The Contractor may be provided, or have access to, Confidential Information during its engagement with the Company. The Contractor agrees to keep confidential and not use or disclose any Confidential Information to any person except:
                  i.                     as required by law;
                 ii.                     with the prior written consent of the Company; or
               iii.                     to the Company’s agents, employees or advisers in the proper performance of its responsibilities and duties under this letter.
(b)               If the Contractor is not sure whether any information is Confidential Information, that information will be treated to be Conditional Information unless the Contractor is told it is not.

5.2              Delivery
The Contractor must immediately deliver all Confidential Information to the Company upon termination of its engagement with the Company or at any time upon the request by the Company.

5.3              Obligations to continue
The obligations under this clause 5 survive termination of the Contractor’s engagement with the Company.

6                Intellectual Property
(a)               The Contractor acknowledges and agrees that all Intellectual Property that is shared with the Contractor by the Company will be the sole and exclusive property of the Company.  The Contractor further acknowledges and agrees that:
                  i.                     full right, title and interest in and to copyright works created by the Company for or in relation to the Services will vest in the Company immediately on creation;
(b)               The parties agree that, other than as provided in this clause 6, nothing in this letter transfers ownership in, or otherwise grants any rights in any Pre-existing Materials of a party.
(c)               The Contractor’s obligations under this clause 6 survive termination of the Contractor’s engagement with the Company.

7                Warranty
The Contractor warrants to the Company that:

(a)               The Contractor has not charged, assigned, licensed, encumbered or granted any interest in the Intellectual Property, except as provided in this letter;
(b)               the copyright works created by the Contractor in the course of providing the Services (whether created before or during the Term) are original works which are not copied, and which will not be copied, wholly or substantially from any other works;
(c)               the use and exploitation (including reproduction, publication, performance, communication and adaptation) by the Company of the Intellectual Property, or any part of the Intellectual Property, will not infringe the copyright or any other intellectual property rights of any third party and does not require any consent from or the making of payment to any person;
(d)               the Contractor has full power to enter into this letter and to give the warranties, representations and indemnities contained in this letter; and
(e)               in respect of any persons the Contractor employs or engages to perform the Services, that person will perform the Services in accordance this letter, and the Contractor will pay to them any salary or fees, make any superannuation contributions and withhold and remit applicable taxes. 

8                Indemnified Taxes
(a)               The Contractor will pay or cause to be paid when due and payable all of the Indemnified Taxes.  The Contractor will ensure proper completion and filing with the relevant government authority of all relevant forms and returns and other related documentation in relation to the Indemnified Taxes.
(b)               The Contractor will indemnify and keep indemnified the Company from and against any liability for the Indemnified Taxes.
(c)               If the Company is, becomes or reasonably forms the view that it may be or become liable for the payment of any Indemnified Taxes in respect of the performance of the Services by the Contractor, the Company may deduct the amount of its liability for the Indemnified Taxes from any amount due to the Contractor under this letter or otherwise.
(d)               In addition to any indemnity payment required to be made by the Contractor in accordance with clause 8(c) the Contractor must pay any other amount determined by the Company to be reasonably necessary to compensate the Company for any income tax liability, or reduction in income tax losses available to be carried forward, to ensure that the Company’s after tax position is the same (or substantially the same) as it would have been had the Company never been liable for any Indemnified Taxes.

9                GST
(a)               Expressions used in this clause 9 which are not defined, but which have a defined meaning in the GST Law, have the same meaning given to them in the GST Law.
(b)               GST Law has the same meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(c)               Unless otherwise expressly stated, all consideration, whether monetary or non-monetary, payable or to be provided under or in connection with this letter is exclusive of GST.
(d)               If GST is payable on any supply made by:
                      i.              a party; or
                    ii.              an entity that is taken under the GST Law to make the supply by reason of the capacity in which a party acts,
o    under or in connection with this document, the recipient of the supply, or the party providing the consideration for the supply, must pay to the Contractor an amount equal to the GST payable on the supply.
(e)               The amount referred to in clause 9(d) must be paid in addition to and at the same time and in the same manner (without any set-off or deduction) that the GST-exclusive consideration for the supply is payable or to be provided.
(f)                The Contractor will provide the Company with a tax invoice in respect of any supply made by the Contractor to the Company under this letter. The tax invoice will be provided to the Company before the Company provides any consideration to the Contractor under this letter for the supply.
(g)               Where the Company is required under this letter to pay for or reimburse an expense or outgoing of the Contractor, the amount to be paid by the Company is the amount of the expense or outgoing less any input tax credit in respect of such expense or outgoing to which the Contractor is entitled plus any GST payable by the Contractor in respect of the supply to the Company. 
(h)               Where, at any time, an adjustment event arises in respect of any supply made by the Contractor under this letter, the Contractor will provide the Company with an adjustment note in respect of the adjustment event as soon as practicable after the occurrence of the adjustment event.

10             Insurance and indemnity
10.1           Insurance
The Contractor will:

(a)               produce relevant public liability insurance and professional indemnity insurance to an amount that is reasonably required by the Company; and
(b)               provide the Company with a certificate of currency for each insurance.

10.2           Indemnity
The Contractor will indemnify each Group Company, and continue to hold each Group Company indemnified, against any:

(a)               liability, loss, damage, injury or death sustained by an person or to any property occasioned by the performance or purported performance of the Services, whether as a result of, or arising from negligence, breach of duty or breach of statute by the Contractor or any person employed or engaged by the Contractor;
(b)               workers compensation or other claims made against a Group Company that may arise out of the performance, or purported performance of the Services; and
(c)               liability, loss, damage or claim incurred by, or made against, the Company by any person employed or engaged by the Contractor in respect of entitlement to minimum rates of pay, superannuation, leave, redundancy pay, notice or bonuses or incentives.

11             Termination
11.1            Termination by either party
The Contractor’s engagement may be terminated at any time by the Contractor or the Company on the giving of four weeks’ notice in writing to the other party. The Company may elect to make a payment to the Contractor in lieu of the whole or part of the notice period.

11.2           Termination by the Company
Notwithstanding any other provision in this letter, the Company may immediately terminate the Contractor’s engagement at any time without a notice if the Contractor or any person engaged or employed by the Contractor:

(a)               becomes insolvent or bankrupt;
(b)               commits a serious or persistent breach of the provisions of this letter which is incapable of being remedied to the Company’s reasonable satisfaction;
(c)               is precluded from taking part in the management of a corporation by virtue of any provisions of the Corporations Act 2001 (Cth); or
(d)               is convicted of any offence involving fraud or dishonesty or any other offence (except a traffic offence) which is punishable by imprisonment (whether or not imprisonment occurs); or
(e)               engages in any conduct which, in the reasonable opinion of the Company, is likely to bring the Company into disrepute.

11.3           Compensation
(a)               Upon termination of the Contractor’s engagement, the Contractor is not entitled to any compensation or damages from the Company in relation to that termination.
(b)               The Company will only be liable to pay that part of the Contract Fee that relates to the Services provided up to and including the date of termination of the engagement.
(c)               If the Contractor’s engagement is terminated by the Company or the Contractor fails to provide notice in accordance with clause 11.1, the Company may also:
                  i.                     recover any sums paid to the Contractor on account of Services which have not been performed; and
                 ii.                     recover from the Contractor the amount of any loss or damage sustained as a result of the termination.

11.4           Return of property
Upon termination of the Contractor’s engagement, the Contractor is required to return all Company property in its possession.

12             Non-Solicitation
12.1           Interpretation
For the purposes of this clause 12, these terms have the following meanings:

12.2           During and after termination of engagement
The Contractor will not during the Term or for a period of 4 months after ceasing engagement with the Company, directly or indirectly without the prior written consent of the Company, on the Contractor’s own account or for or on behalf of any person or entity:

(a)               solicit or endeavour to solicit or approach any director, officer, employee, contractor or agent of any Group Company known to the Contractor with the purpose of enticing that person away from the Group Company; or
(b)               solicit, canvass, approach or accept any approach from any person or entity who was during the period in which the Contractor performed Services, a customer, supplier, distributor or licensee of or to a Group Company, with a view to establishing a relationship with or obtaining the custom of that person or entity.

12.3           Acknowledgement
The Contractor acknowledges that:

(a)               the prohibitions and restrictions contained in this letter are reasonable having regard to the interests of the Company and the nature of the Contractor’s engagement with the Company;
(b)               if the Contractor breaches its obligations under this clause 12 then, in addition and without prejudice to any other remedy which the Company may have, the Company is entitled to seek and obtain interlocutory and permanent injunctive relief in any court of competent jurisdiction.

12.4           Survival
The Contractor’s obligations under this clause 12 survive the termination of its engagement.

13             Miscellaneous
13.1           Governing law
(a)               This letter is governed by and is to be construed in accordance with the laws of New South Wales.
(b)               Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

13.2           Severance
Any provision of this letter which is or becomes illegal, void or unenforceable in any jurisdiction will be ineffective in that jurisdiction only to the extent of the illegality, voidness or unenforceability and will not invalidate the remaining provisions of this letter nor affect the validity or enforceability of that provisions in any other jurisdiction.

13.3           Variation and entire understanding
This letter may only be varied, replaced or terminated by letter in writing signed by the Contractor and an authorised representative of the Company.  This letter embodies the entire understanding of the parties in relation to its subject matter and all previous negotiations, representations or contracts are superseded by this letter.

14             Definitions
In this letter:

Commencement Date means today's date as indicated below

Confidential Information means any information regardless of the manner in which it is recorded or stored, relating to the business affairs of any Group Company or any of their customers or suppliers including but not limited to accounts work, marketing plans, sales plan, management, financing, products, inventions, designs, processes and any data bases, data surveys, specifications, drawings, records, reports, software or other documents material or other information whether in writing or otherwise which is not lawfully within the public domain.

Group means the Company and each of its Related Bodies Corporate and each of their officers, employees and agents.

Group Company means any of the Company and each of its Related Bodies Corporate.

Indemnified Taxes means any Tax arising out of or in relation to this letter, provision of the Services or any other transaction contemplated by this letter including Pay As You Go withholding tax, fringe benefits tax, worker’s compensation insurance premiums, payroll tax together with all costs, interests or penalties payable by reference to those taxes, excluding GST (as defined in the GST Law).

Intellectual Property means any and all industrial and intellectual property of any kind (whether or not in a material form) that is developed for or arises out of or in relation to the performance of Services, including but not limited to:

(a)               patents, trade marks, copyright (existing and future) and designs (whether registered or unregistered);
(b)               any application or right to apply for registration in respect of any of the rights in sub-clause (a); and
(c)               eligible layout rights, database rights, software developments, computer programs (including both source and object codes), processes, inventions, specifications, formulas, know-how, research data, improvements in procedure, discoveries and similar rights.
●      Pre-existing Materials means all works, things, materials and documents (including any subsisting intellectual property rights in those items) developed by or on behalf of a party independently of the engagement effected by this letter.
Related Body Corporate means a body corporate which is taken under section 50 of the Corporations Act 2001 (Cth) to be related to the Company

Tax means any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called and whether Australian, foreign, state, municipal or local.

Schedule 1
Item 1 -  Contract Services

The Services to be performed by the Contractor are:

• The provision golf lessons, clinics and support to players at golf facilities to learn, access and enjoy the game.
• To ensure that a Player Initial Assessment is completed for every new client accessing ongoing lessons/services and that ongoing progress notes are kept after each session. 
• To ensure that a new participant attending a clinic completes an indemnity form prior to using the ParaGolfer (an all-terrain specialised mobility device which manoeuvres an individual into the standing position to replicate the full golf experience) and that the indemnity form is sent to the Company within 14 days. Please note the Company will provide the indemnity form. 
•  To send any new player a follow-up email within 3 days, cc'ing James Gribble at james.gribble@empowergolf.com.au or Ben Tullipan at ben@empowergolf.com.au utilising what techniques were discussed and worked on during the clinic/lesson and suggest skills and techniques to focus on going forward. 
• To forward at least one photo and one video to either James Gribble at james.gribble@empowergolf.com.au or Ben Tullipan at ben@empowergolf.com.au each month, when services have been provided, of an individual, group or scene of interest for the purposes of marketing and promoting the Company's programs. 
• Post at least once each month, when services have been provided, on appropriate social media platforms i.e. Facebook, Instagram, Twitter, LinkedIn or Snapchat, for the purposes of marketing and promoting the Company's programs and tag the Company.
• If not already accredited, complete the All Abilities accreditation within 12 months of signing this agreement
• In the case that the Contractor is not coaching a minimum of 3 hours per week, work with the Company to market the Contractor's services by:
• approaching one local disability group per quarter directly by phone calls, physical meetings or emails
• attempting to use the golf club's database or marketing resource to attract players by promoting their available services through newsletter, marketing campaigns or placement of physical flyers around the facility . Please note the Company will provide the latter. 
• To make themselves available from time to time for marketing, media and profile building initiatives as well as producing testimonials regarding the Contractor's experience working with the Company

Item 2 - Contract Fee

Rates of pay for services

Private lesson – $100 per hour

Group clinics – $100 per hour

9/18 hole course instruction – $100 per hour