tmmatr 

WHEREAS

1. The Training Provider delivers to optometrists and optician business owners training and coaching services through the Be Spectacular Eyewear Styling System (the “Be Spectacular System”); and
2. The Client is hiring the Training Provider to perform such services under the terms and conditions set out in this Agreement.

NOW THEREFORE, this Agreement confirms that in consideration of the following promises hereinafter expressed on the part of the Client and the part of the Training Provider and the fees to be paid as outlined below, the Parties hereto agree to the terms and conditions as follows:

 

1. SCOPE OF WORK

The Training shall provide the services and deliverables described below, and in any Schedule “A”: Statement of Work and Schedule “B”: User Non-Disclosure Agreement, (collectively the “Schedules”) signed by the Parties that is entered into under this Agreement, and any services that are necessary to comply with this Agreement (collectively, the “Services”). 

The Parties shall be bound by any additional terms and conditions within the Schedules.

2. RESPONSIBILITIES OF THE TRAINING PROVIDER

• to facilitate the interactive “Style to Sell” optical sales training program
• to provide a minimum of 5 hour training in optical gallery
• to provide access to reference materials and checklists to support sales training
• to provide frame board management review and inventory recommendation

3. RESPONSIBILITIES OF THE CLIENT

• You will complete worksheets and quizzes set forth in the Style to Sell training program;

• You will not disclose or share your materials with persons outside of your  organization, as per section 4 of this Agreement;

• You shall deliver to the Training Provider all executed copies of Schedule “B”: User Non-Disclosure before the commencement of the Services;

• In-person attendance is required;

• You shall provide payment via e-transfer or credit card. If payment is made by credit card, you will provide us with your credit card details together with all relevant contact details in a form specified by us and at a frequency determined by us.

4. NO SHARING OF ACCESS CODES and/or RECORDINGS

• The Client and its authorized users and/or staff members shall not share training materials for Be Spectacular, Style to Sell with others, including but not limited, other organizations, individuals during or after the completion of the Services. Authorized user for the purposes of this section means individuals of the Client’s business that (1) are enrolled in the training/coaching program; (2) who have delivered an executed Schedule “B”: Non-Disclosure Agreement to the Training Provider; and (3) who have been assigned an access code to the online module and materials from the Training provider

5. FEES AND PAYMENT

• You will pay us the fees for Services as set out in Schedule “A”: Statement of Work (“Fees”). All Fees are subject to applicable taxes;

• We shall issue you an invoice for our Services;

• You will pay the invoice within 5 business days of receipt; and

• Your obligation to pay any Fees due to us that have accrued as of the termination date, if any, shall survive termination.

 6. NO GUARANTEE OF RESULTS

 We do not warrant or guarantee any specific level of performance or results. The Client acknowledges that the Training Provider has not and does not make any representations as to the future income, expenses, sales volume or potential profitability or loss of any kind that may be derived as a result of your participation in these Services. The Training Provider cannot and does not guarantee that you will attain a particular result, positive or negative, financial or otherwise, through the use of our Services, and materials, and you accept and understand the results differ for each individual. We also expressly disclaim responsibility in any way for the choices, actions, results, use, misuse or non-use of the information provided or obtained through any of our Services, and materials. You agree that your results are strictly your own and we are not liable or responsible in any way for your results.

 

7. TERM AND TERMINATION

• The Term: The [STYLE TO SELL/BE SPECTACULAR COACHING AND TRAINING] shall begin on dae set or upon termination pursuant to this section 7 of the Agreement.

• If you terminate the Agreement prior to the End Date, please note that we have a no refund policy on any of our Services. Unless otherwise provided by law, all sales are final upon signing the contract and our fees are fully payable as outlined in Schedule “A”: Statement of Work.

• Either Party may terminate this Agreement if the other Party materially breaches the terms of such Agreement and fails to cure such breach within fifteen (15) calendar days of its receipt from the other Party of written notice of such breach. For the purposes of this section 7(c) material breach means a breach that is having a serious effect on the benefit that the terminating party would otherwise derive from any of the obligations set out in sections 4,5, 8, 9, 11 and 12 which do not end with the termination of this Agreement.

 

8. PRIVACY AND CONFIDENTIALITY

(a)   The Training Provider acknowledges that during the performance of this Agreement, we, including our employees, agents, subcontractors or representatives may be exposed to, be provided with, or otherwise acquire your personal information (“Confidential Information”). Confidential Information may include, without limitation, names, images, voices, addresses, e-mail addresses, phone numbers, social media accounts, URLS, passwords, usernames, demographic and account access codes provided by the Training Provider.

(b)   The Training Provider shall use the Confidential Information only for the purpose of providing the Services hereunder and shall not retain or make use of the Confidential Information for any other purpose.

(c)    Effect in Perpetuity. We acknowledge and agree that the obligations under this section are to remain in effect in perpetuity which means that the obligations with respect to confidentiality do not end with the end of this Agreement.

 

9.  INTELLECTUAL PROPERTY  

(a)   “Intellectual Property” means rights associated with all or any of the following anywhere in the world, whether or not filed or registered: Spec Style; colour palettes; reference sheets; toolkits; Be Spectacular Styling System; manuals; pre-recorded videos; modules; methodology to sale strategies and marketing; patents, patent applications, and inventors’ certificates; copyrights (including moral rights and other author’s rights), works of authorship, copyright registrations and applications; data and database rights; know-how, trade secrets, and rights in and to confidential information; industrial designs (including utility models); trademarks, trade names, service marks, logos, Internet addresses (URLs), and in each case the goodwill associated with them; rights of publicity; and any other proprietary rights relating to intangible property.

(b)   We grant to you, and you accept, a non-exclusive, non-transferable, revocable right to access and to use the Intellectual Property, as applicable to the Services provided under this Agreement. 

(c)    The Parties understand that neither this Agreement or any disclosure of our confidential materials and information shall vest in you any intellectual property rights of including any rights to copyright, trade secrets and trademark.

(d)    You expressly acknowledge that the Intellectual Property is provided under license to you and that the Intellectual Property is made available to you and your authorized users only, for the purposes stated in this Agreement and only during the Term of this Agreement.

(e)    You agree not to reproduce the Intellectual Property except as may be required for the sole purpose of accessing or using the Intellectual Property pursuant to this Agreement. You further agree not to distribute or display the Intellectual Property to create derivative works, or to access or use the Intellectual Property in any manner not expressly permitted under this Agreement.

(f) You agree not to distribute or share your assigned access code as per section 4 and Schedule “B”: Authorized User Non-Disclosure of this Agreement.

(g)   We retain full rights to all intellectual property, processes, and deliverables.  You are not permitted to use reports, methodology, or deliverables nor any techniques or know-how used in the connection of the delivery of services for any commercial or non-commercial purposes.

(h)   we may use your name, and testimonials for promotional purposes, without compensation to you, including but not limited to displaying same on our website, social media and other promotional materials, with your written consent.

 

10. DELEGATION

The Client acknowledges and understands that Wendy Buchanan may not always be directing the group meetings, and that she reserves the right to delegate the said task to the well-trained representatives on her team. The Be Spectacular System representatives shall provide and assist in the provision of any part of the services stated herein or the discharge of any other obligations or duties under this Agreement without the consent or approval of the Client.

11. NON-DISPARAGEMENT

The Client shall not post or share information or photos about the Training Provider, discussions, or activities online in any form, including but not limited to social media platforms such as Instagram, Facebook, Twitter, Tik Tok, message board, blogs, websites, email, without the written consent of the Training Provider. Should the Training Provider consent to the foregoing, such posts shall be posted with integrity and in a manner so as not to harm or be likely to harm the Training Provider’s confidential and proprietary information, reputation and brand or likely to embarrass or disparage the Training Provider.

12. NON-SOLICITATION

You will not, during the Period of this Agreement and for a period of 1 year thereafter, recruit, contact, solicit, induce or influence any designated individual, such as clients, contractor, employee, partner, collaborator, joint venturer, agent, representative, or any person retained by us for the purpose of providing any services which are the same as or substantially similar to, or in any way competitive with, the services provided by us at any point during the Period of this Agreement, within 50 km of your office location.  For the purposes of this section, a “designated individual” means a person who was a client, contractor, employee, partner, collaborator, joint venturer, agent, representative, or any person during some part of the Period of this Agreement.

 

13. RIGHT TO DECLINE WORK

We reserve the right to decline work and/or requests at our sole discretion, if the request,

• is not within the original scope you selected;
• may bring The Training Provider’s reputation in disrepute; or
• cannot be completed by your proposed deadline.

 

14.  REPRESENTATIONS AND WARRANTIES, COVENANTS AND REMEDIES

• Date of Commencement.​ The Agreement is effective on the Effective Date and shall continue during the Term unless terminated earlier in accordance with its terms.

• Continuing Obligation.​ The Parties acknowledge and agree that the obligations under each of sections 4,5, 8, 9, 11 and 12 are to remain in effect in accordance with each of their terms and will exist and continue in full force and effect despite any breach or repudiation, or alleged breach or repudiation, of this Agreement.

 

15.  INDEMNIFICATION  

Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.

 

16.  LIMITATION OF LIABILITY

Except in the event of gross negligence, we shall not be liable to you or any third party for any loss of use, revenue, or profit, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not we have been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

 

17.  FORCE MAJEURE  

We shall use its reasonable efforts to provide the Services, but it shall not be liable for or failure of performance of, any covenant or promise contained in this Agreement, nor shall any delay or failure constitute a default or give rise to any liability for damages if, and only to extent that, such delay or failure is caused by “force majeure.” As used in this Agreement, “force majeure” means acts of God, acts of the public enemy, acts of terrorism, unusually severe weather, fires, floods, epidemics (excluding the COVID-19 pandemic), quarantines, strikes, labour disputes and freight embargoes, to the extent such events were not the result of or were not aggravated by the acts or omissions of The Training Provider. For clarity, the Client shall not pay any Fees to us concerning any Services which The Training Provider has not performed, including any non-performance which is otherwise excused under this Section 14.

 

18.  DISPUTE RESOLUTION 

(a)   The Parties shall, in the first instance, attempt to resolve any disputes amicably;

(b)   In case of any dispute arising under this Agreement which cannot be settled by reasonable discussion, the parties agree that prior to commencing any arbitration proceeding as contemplated below they will first engage the services of a professional mediator agreed upon by the parties and attempt in good faith to resolve the dispute through confidential non-binding mediation.  Each party shall bear one-half (1/2) of the mediator’s fees and expenses and shall pay all of its own attorneys’ fees and expenses related to the mediation;

(c)    Failing resolution through mediation, each Party irrevocably and unconditionally agrees that the dispute shall be resolved through binding arbitration to be held in Toronto, Ontario, Canada.  Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; and

(d)   No Party shall make disparaging remarks about the other publicly including on social media

 

19. General Provisions

(a)   INDEPENDENT CONTRACTOR STATUS  

The Training Provider is​ an independent contractor and nothing in this Agreement shall be interpreted to conclude that The Training Provider is an employee of the Client or creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.​ The Training Provider bears​ sole responsibility for the payment of taxes, employment insurance and other expenses associated with their business in relation to the services outlined hereunder. 

(b)   HEADINGS

The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.

 (c) INVALIDITY OF PROVISIONS

Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.

(d)   ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. This Agreement supersedes and replaces all prior agreements, if any, written or oral, concerning The Training Provider’s engagement by the Client and any rights which The Training Provider may have by reason of any such prior agreement or by reason of The Training Provider’s prior engagement, if any, by the Client. 

(e)   WAIVER AND AMENDMENT

Except as expressly provided in this Agreement, no amendment or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.

(f)    CURRENCY

Except as expressly provided in this Agreement, all amounts in this Agreement are stated and shall be paid in CAD and USD.

(g)   COUNTERPARTS

This Agreement may be signed electronically and in counterparts and each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument. 

TERMS AND CONDITIONS OF PURCHASE

By purchasing any sales workshops, online course, workbook or membership (the “Course”) from Wendy Buchanan of Be Spectacular® Eyewear Styling System (“consultant”), you agree and consent to the following legal terms and conditions that govern your use of the Course and that form a legal agreement between you and the consultant.