© Being My Best Ltd 2022
Website Designed and Developed by Oraco Solutions Limited
“Ahakoa he iti he pounamu”
Although it is small, it is something precious and treasured from the heart
Although it is small, it is something precious and treasured from the heart
BEING MY BEST – RESILIENCE PROGRAMME AND FACILITATOR TRAINING WITHIN SCHOOLS
BEING MY BEST TERMS & CONDITIONS OF TRADE FOR FACILITATORS
1. Being My Best is engaged in the business of providing education and mentoring services, including resilience teaching to students within schools.
2. The Facilitator is providing teaching services to students within schools.
3. The parties wish to enter into this Agreement to confirm the terms and conditions of the Agreement and agree as follows:
Definitions
The Facilitator agrees that the definitions listed below have their respective defined meanings, unless the context, expressly or by necessary implication, require otherwise:
“Confidential Information” means knowledge of customer needs and preferences, trade secrets, methods of operation, markets, other valuable information, confidential information for Being My Best’s business and activities. Confidential Information shall also include financial information, such as the Being My Best’s prices, personnel information; and customer information.
“Content” shall mean any and all software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or content, including the selection and arrangements thereof, that is made available by Being My Best, whether directly or indirectly, to the Student, in accordance with this Agreement.
“Student” shall mean the student and/or end user of the services of Being My Best, and shall include the pupil and their parents (or the legally appointed guardian, as the case may be) as well as third party resellers and/or other corporate and institutional clients of Being My Best.
“Indemnified Liabilities” shall have the meaning ascribed to it in Clause 8.
“Indemnified Parties” shall have the meaning ascribed to it in Clause 8.
“Services” shall mean any and all services, whether through online and offline medium provided either directly and/or indirectly by Being My Best.
“Session” shall mean any online, live and interactive streaming session along with physical teaching sessions between the Student and the Facilitator.
“Term” shall mean the period of two (2) years from the date on the certificate of accreditation provided by Being My Best to the Facilitator on completion of their training.
1. GENERAL INTERPRETATION
In this Agreement, except to the extent that the context otherwise requires:
a) References to a statute, ordinance or other Law shall be deemed to include any references to a statute, ordinance or other Law as amended, supplemented or replaced from time to time in accordance with its terms and (where applicable) subject to compliance with the requirements set forth therein and shall include regulations and other instruments under such statue, ordinance or other Law;
b) References to Clauses, Annexures and Schedules are reference to clauses in and annexures and schedules to this Agreement unless the context requires otherwise and the Annexures and Schedules to this Agreement shall always be deemed to form part of this Agreement;
c) The headings are inserted for convenience only and shall not affect the construction of this Agreement;
2. DUTIES OF FACILITATOR
a) The Facilitator shall provide the services for the Term in a professional manner, according to the NZ Teacher’s Code of Ethics.
b) The Facilitator acknowledges and understands that the services provided to the Student may vary on a case to case basis based on the respective needs of the individual Students.
c) The Facilitator and the student shall record in a form acceptable to Being My Best, the qualitative and/or anecdotal assessment of each Student’s progress in the topics that are being taught in accordance with the terms of this Agreement. The child’s teacher and parents/caregiver are to receive a copy.
d) The Facilitator shall at all times abide by the Being My Best curriculum and shall under no circumstances deviate from the same. The Facilitator will deliver each programme in sequence, from the first to the final session in full.
e) The Facilitator represents and warrants that they do not own or control any rights to the Content and have the right to use the Content under license only from Being My Best.
f) The Facilitator acknowledges and understands that they shall have no claim or other recourse against Being My Best for infringement of any proprietary right with respect to the Content.
g) The Facilitator acknowledges and affirms that they are responsible for any Content statements, observations, information (whether in written or oral form, or through bodily gestures or otherwise) that they submit or contribute during the Sessions.
h) The Facilitator shall not make any misrepresentations and/or provide false information with regards to Being My Best during the Sessions or in relation to their own expertise with respect to the Being My Best Content.
i) Where a Facilitator is unavailable for any Session, for any reason whatsoever, they shall advise their school, School Principal, Deputy Principal or SENCO and continue with that Session when available.
j) The Facilitator shall always maintain a positive attitude throughout any Session and role model the use of strategies when needed.
k) The Facilitator shall only work in quiet, ambient surroundings amenable to learning while taking a Session.
l) The Facilitator shall keep the NZ Special Education Needs Coordinator (SENCO) in their school informed of any issues or problems with each student, as and when they develop.
m) The Facilitator undertakes to date, record and notify SENCO promptly when the Student engages into any activity, conversation and/or conduct which falls outside of the Services prior to, during the continuance of, and after any Session.
n) The Facilitator shall not make any disparaging statements in relation to any person and/or organisation during their interaction with the Student, whether during a Session or afterwards, including but not limited to the school they have been a part of and any of its Facilitators, teachers, instructors and members in the administration and support staff as well as authorised representatives. Facilitators must always remain professional, unbiased and only provide professional services based on the Content provided by Being My Best.
3. RIGHTS OF BEING MY BEST
a) Notwithstanding anything contained herein, the Facilitator, inter alia, extends an exclusive, freely transferable, perpetual, royalty free license to Being My Best to use any content developed by the Facilitator for any reason whatsoever, including but not limited to its commercial exploitation.
b) Being My Best shall have the sole right to receive payments from any person in relation to the Services and any part thereof. For clarification of doubt, it is hereby stated that under no circumstances shall the Facilitator derive any monetary benefit, whether directly or indirectly, in the form of monies and/or otherwise, from any person, in relation to the Content.
c) Being My Best reserves the right to enter into independent Facilitator partnerships/agreements with third parties, in relation to the same Content that is provided by Being My Best. For avoidance of doubt, it is hereby clarified that this Agreement does not give the Facilitator any rights in relation to any and all parts of the Services and/or any other product or services of Being My Best.
d) Subject to applicable law, Being My Best reserves the right to use any and all information that has been provided by the Facilitator, whether in non-aggregated form or otherwise, for any marketing and/or promotional purposes (including but not limited to videos, photos, content etc).
e) Notwithstanding anything contained herein, Being My Best shall have a unilateral right to terminate this Agreement.
f) Subject to Applicable Law, Being My Best reserves the right to ask for more information from the Facilitator which is directly connected to the Services (including but not limited to reference checks, police or similar reports, educational qualification checks etc.)
g) Being My Best reserves its right to monitor and/or record the use of all or any part of any Session.
4. PAYMENTS
a) Being My Best reserves the right to amend the pricing, pricing bands or structure in any transaction that falls within the purview of this Agreement from time to time for any reason whatsoever, subject to due notification of such amendment to the Facilitator (direct notification or via Being My Best’s website) and the Facilitator specifically disclaims any and all rights that vest upon him under any contract, law or equity in this regard.
b) Notwithstanding anything contained herein, the Facilitator agrees and acknowledges that the consideration paid by them or their school, shall be the full and complete remuneration for any and all services envisaged under this Agreement.
5. EFFECTIVE DATE
The Effective Date of this Agreement shall be the date on which the Facilitator accepts these terms in accordance with the process of registration and approval of the Facilitator by Being My Best.
6. DECLARATIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS
a) Each Party hereby warrants that they have the legal right, power and authority to enter into, deliver and perform this Agreement.
b) The Facilitator undertakes to do all preparation prior to the Sessions and to structure lessons in such a way as to optimize time to the benefit of the student.
c) The Facilitator specifically covenants that they shall keep confidential all information of Being My Best.
d) Notwithstanding anything contained herein, the Facilitator does not have the right to assign any of his/her duties or obligations under this Agreement.
e) The Facilitator represents and warrants that they have the full right to provide Being My Best with the intellectual property rights (if any) envisaged under this Agreement;
f) The Facilitator shall comply with all applicable laws in the course of performing their obligations under this Agreement.
g) The Facilitator agrees and acknowledges that they are in no way covered by Being My Best in any matter(s) of insurance.
7. EVENTS OF DEFAULT
Being My Best shall, pursuant to Clause 11, have the right to terminate the Agreement with the Facilitator in case of the following events (hereinafter referred to as “Events of Default”):
a) any breach of the duties of the Facilitator under this Agreement.
b) violation of any of the rights of Being My Best under this Agreement.
c) breach of any covenants, declarations, representations and/or warranties of the Facilitator under this Agreement.
8. INDEMNIFICATION
The Facilitator shall indemnify Being My Best and its directors, employees, agents, successors, and assigns (“Indemnified Parties”) from and against any and all liability incurred by the Indemnified Parties as a result of, arising out of or relating to
a) any misrepresentation by the Facilitator to the Indemnified Parties.
b) any misrepresentation of the Facilitator to any Third Party, including but not limited to any customers of the Services, with respect to the Indemnified Parties.
c) an Event of Default.
d) the breach of any obligations by the Facilitator of this Agreement.
9. INTELLECTUAL PROPERTY
a) Other than the Content (ownership of which is subject to the terms of this Agreement), Being My Best shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trade mark rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information which are subject matter of Services (collectively referred to as “Intellectual Property”).
b) The Facilitator will hold in confidence and not disclose or, except in performing its duties under this Agreement, use any Intellectual Property.
c) Upon termination and as otherwise requested by Being My Best, the Facilitator will promptly return to Being My Best all items and copies containing or embodying Intellectual Property, if any.
d) Notwithstanding anything contained in this Agreement, Intellectual Property includes all rights of integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like.
e) Notwithstanding anything contained herein, in relation to the Content, the Facilitator extends a royalty free, irrevocable, exclusive and freely transferable license in perpetuity to Being My Best to make use of any content made available by the Facilitator (as well as derivative works and adaptation based on it) in any manner that Being My Best deems fit. For the avoidance of doubt, the applicability of this clause shall survive the termination of this Agreement.
10. RESTRICTIVE COVENANTS OF THE FACILITATOR
a) The Facilitator shall not assist any other person or organization in competing or in preparing to compete with Being My Best.
b) During the Term of this Agreement the Facilitator shall not, either directly or indirectly solicit or entice away or endeavour to assist any other third party in an endeavour to solicit or to entice away from Being My Best any employee, prospective customer and/or customer.
c) During the Term of this Agreement, the Facilitator agrees not to take any action which is intended, or would reasonably be expected, to harm Being My Best or its or their reputation or which would may reasonably be expected to lead to unwanted or unfavourable publicity to Being My Best.
d) The Facilitator acknowledges and understands that for the Term of this Agreement, it is best and safe practice during the provision of the Services, to have access and participate with a third party trained to provide supervision for the Facilitator as part of the Being My Best programme.
e) The Facilitator acknowledges and agrees that on or before the end of the Term the Facilitator will have to complete a one-day refresher course with Being My Best to ensure their accreditation to facilitate the Being My Best programme within their school is maintained for a further term.
11. TERMINATION
In case of an Event of Default, Being My Best may terminate this Agreement upon five (5) calendar days written notice unless the breach is remedied within the notice period however Being My Best reserves the right to immediately terminate the Facilitator’s agreement at their sole discretion.
12. GOVERNING LAW AND ARBITRATION
a) This Agreement and its performance shall be governed by and construed in all respects in accordance with the Laws of New Zealand
b) When any dispute is under arbitration, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement.
13. ASSIGNABILITY
Notwithstanding anything contained herein, the Facilitator shall not be entitled to assign their rights and obligations under the Agreement to a third party. Being My Best reserves the right to assign any and all of its rights, duties, obligations and liabilities under this Agreement. The Parties shall execute such documents as may be necessary or desirable to give effect to such assignment.
14. CONFIDENTIALITY
a) The Facilitator shall maintain the utmost confidentiality, regarding the Contents, Confidential Information and Sessions at all times.
b) The Facilitator shall not make any announcements to the public or to any third party regarding the arrangements contemplated by this Agreement without the prior written consent of Being My Best.
c) For the avoidance of doubt this Clause 14 shall be applicable in relation to the Facilitator disclosing their association with Being My Best on their online social media profiles.
15. AMENDMENTS AND WAIVERS
Any provision of this Agreement may be amended or waived if, and only if such amendment or waiver is in writing and signed by each of the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.
16. INDEPENDENT CONTRACTORS
The Parties are independent of each other and will have no power or authority to create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, or employer-employee relationship.
17. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the Parties hereto with respect to the services provided under this Agreement and the rights and obligations of the Parties, superseding and replacing all negotiations, prior agreements, discussions, memoranda or heads of agreements, made prior to the date hereof amongst the Parties.
BEING MY BEST – RESILIENCE PROGRAMME AND FACILITATOR TRAINING WITHIN SCHOOLS
BEING MY BEST TERMS & CONDITIONS OF TRADE FOR SCHOOLS
Note: “in writing” means either text message to the Facilitator or email to sue@beingmybest.co.nz
BEING MY BEST PROGRAMME
The School named in the schedule to these terms and conditions of trade agree that they shall abide by the terms and conditions contained herein whilst facilitating the Being My Best course:
GENERAL
• Sessions are a minimum of 60 minutes in length for Junior children and up to 1.5 hours for Senior children.
• Facilitators are to take no more than three Being My Best programmes/groups during one school day.
• The Facilitator shall at all times abide by the Being My Best curriculum and shall under no circumstances deviate from the same. The Facilitator will deliver each programme in sequence, from the first to the final session in full.
• When a student is late, or unable to attend a session at late notice (less than 12 hours before the session), the School must immediately notify the Facilitator directly in person or via text message or phone.
BEING MY BEST PARTICIPANTS
It is the facilitators aim to work with small groups of up to 6 children at a time, that fall within the low range of children needing social and emotional support. Once the Facilitator is confident in facilitating the programme the number of children may be increased to a maximum of 8 students.
The facilitator works collaboratively with Senior Management/SENCO and classroom teachers, in the school where they are facilitating the programme.
The classroom teacher identifies and refers children, to Senior Management/SENCO, to participate in the Being My Best programme. Parent permission must be obtained and the benefits of the programme explained, by the classroom teacher, before the child begins. Groups are finalised and the list, with information about the needs of each child, are given to the facilitator.
Children may show any of the following signs of needing social and emotional support, to participate in the programme:
FACILITIES VENUE AND OVERHEAD COSTS
• The travel, accommodation, and venue costs for the Being My Best trainer to complete the facilitator training is to be paid for by the schools participating in the programme through negotiation.
FACILITATOR ACCREDITATION
• Facilitators will receive a certificate of accreditation once they have completed their training. The accreditation is valid for a term of 2 years from the date on the certificate of accreditation. After the term of 2 years, the facilitator is required to complete a one-day refresher course with Susan Lyon or an accredited tutor authorised by Susan Lyon, to remain accredited.
• Facilitators working within schools acknowledge and understand that for the Terms of this Agreement, it is best and safe practice to have access and participate with a third party trained to provide supervision for the Facilitator as part of the Being My Best programme.
• Should a Facilitator move to another school, you are required to notify Being My Best prior to the Facilitator leaving the school within 5 working days of the Facilitator’s notice of resignation being accepted by the school. The school will not be entitled to provide the Being My Best programme until another Facilitator has been vetted by Being My Best and completed their accredited training with Being My Best in accordance with the terms of this agreement and the terms of their Facilitators agreement with Being My Best.
ANNUAL FEE
• The annual fee of $850.00 GST inclusive will be included in the initial facilitator training invoice fee, for one teacher facilitating the programme in your school.
• For two or more teacher’s facilitating the programme in your school, there will be an annual fee of $1700.00 GST inclusive.
• This fee allows for the facilitator to provide the programme in the school throughout that year. The annual fee also provides the school and the
facilitator notification of updated materials as they are produced and up to 4 hours of contact with the Being My Best trainer by phone or facetime/Zoom and/or email.
• Any other support required by the facilitator in your school, an hourly fee will be charged by the Being My Best trainer through negotiation.
PARENT AND TEACHER WORKSHOPS
• Parents/caregivers of the children participating in the programme are required to attend two workshops, provided by the accredited Being My Best facilitator in the school. This is to familiarise the parents with the strategies of the programme so they can role model and support their child in using the strategies in a home and community setting.
• All staff are required to participate in a workshop to familiarise themselves with the strategies of the Being My Best Resilience programme. This will enable them to role model the strategies and support children to use the strategies within a school setting. The workshop for the teachers is presented by the accredited facilitator working within the school.
CHILDREN’S WORKBOOKS
• There are two levels of the children’s workbook that are required for the programme:
(i) Junior Workbook for ages 5.5 years old to 8 years old; and
(ii) Senior Workbook for ages 8 years to 12 years old.
• The workbooks can be ordered directly from Sue Lyon and paid for in accordance with the terms and conditions contained herein.
• Each child participating in the Being My Best programme must have their own workbook. Once participants have completed the programme, each child is to take their workbook home for future reference.
SKILLS AND QUALITIES REQUIRED OF FACILITATORS
• To become an accredited Being My Best Facilitator you are required to be a registered teacher and complete a three day training course with Susan Lyon or an accredited tutor authorised by Susan Lyon.
• The skills and qualities in the teachers chosen to be trained as a Facilitator are crucial to contribute to the wellbeing engagement and success of the children participating in the programme.
• It is beneficial for the teachers participating in the Being My Best training to have some background in psychology and child development. Having an interest in the emotional and behavioural needs of our young people and their complexities is also important.
• Teachers to be trained as Facilitators need to display a joyful and positive disposition, be respectful of children, kind, trustworthy, accepting of differences, encouraging and wise. The Facilitators need to be able to connect emotionally with children, set clear boundaries and have positive behaviour management.
• Maintains a positive rapport with parents and teachers and the confidence to facilitate parent and teacher meetings.
• Being My Best has the right to decline to train a teacher if Being My Best deem them unsuitable. If this occurs 25% of the training fee will be retained by Being My Best and the balance refunded to the school.
COVID-19 PROTECTION FRAMEWORK
• Our terms and conditions continue to apply, including those points relating to cancellation of sessions.
• GREEN – Sessions continue as usual in person at a school, with public health measures in place.
• ORANGE – Sessions continue as usual in person at a school, with public health measures in place.
• RED – Sessions continue at school, with public health measures in place, if the Principal of the school is in agreement. Otherwise email instruction will be provided to parents/caregivers where possible by the Facilitator.
CANCELLATION
• Being My Best programmes continue until:
• A session is postponed where a Facilitator is unavailable for any Session, for any reason whatsoever, they shall advise their school, School Principal, Deputy Principal or SENCO and a replacement session will be arranged by the Facilitator to make up this time.
• If a parent/caregiver provides notice verbally or in writing to the School that they wish to withdraw their child from the programme prior to the first session.
• If a student’s needs are not being meet in the Being My Best programme, after discussion with Senior Management/SENCO, the facilitator and the parent/caregiver, the child can be removed from the programme and referred to a counsellor or psychologist for individual support.
FEES
• Programme fees are attached to these terms and conditions.
• Schools may ask parents/caregivers for a fee to cover their child’s workbook and other resources.
• Being My Best reserves the right to amend the pricing from time to time for any reason whatsoever; however, 2 weeks’ advance warning will be given in writing.
PAYMENT
• All fees for Facilitator training, Facilitator Refresher course and the Schools Annual fee are directly payable to Being My Best by direct banking only. No payments are to be paid directly to the tutor. Invoices for fees will be emailed to the School.
• Payment of fees shall be made by payment of a 25% non-refundable deposit of the Facilitator training and/or Facilitator Refresher fee. The balance of the fee is due 14 days prior to the start date of the Facilitator training/Refresher to secure a placement. The initial Annual fee will be included in the Facilitator training invoice fees. Subsequent invoices for Annual fees will be emailed to the School.
• The Being My Best workbooks can be ordered by emailing Sue Lyon. Schools will be invoiced and payment of $25.00 per workbook plus courier costs will be required before the workbooks are dispatched.
• Unless expressly stated otherwise, GST will be added to all fees, if any.
• Where any training sessions or training courses are delayed due to COVID-19 and the fees have already been paid to Being My Best, those fees shall be held by Being My Best until the session/training course can be rescheduled at an appropriate time.
DEFAULT ON PAYMENT, INTEREST & LEGAL EXPENSES
• Where an invoice is not paid by the due date, a reminder notice will be emailed, with payment required within 2 days of the reminder notice.
• Where an invoice is not paid following the reminder notice, Being My Best reserves the right to terminate future programmes until the date the invoice is paid in full.
• Where an invoice is not paid following the reminder notice, default interest on the amount outstanding will be calculated at the BNZ bank floating interest rate at the time of default plus 5% per month and shall accrue until the date the invoice is paid in full.
• Where an invoice is not paid, we may choose to recover outstanding amounts from the School via a debt collection agency or we may choose to commence legal proceedings against the School to recover the costs incurred in recovering outstanding amounts.
• All expenses incurred by Being My Best for default in payment, including collection costs from obtaining the services of a debt collection company and/or legal fees in relation to any overdue amount will be added to the School’s account and you, as the client, are liable for its payment.
ACADEMIC RESPONSIBILITY
• Being My Best strives to provide the best possible service. However, Being My Best will not be held accountable or responsible for the academic success or lack thereof demonstrated by students attending the programme at the School. Although Being My Best will do everything in its power to help skill sets improve, Being My Best can offer no guarantee.
PRIVACY ACT 1993
• You, the School, shall have the right to request from Being My Best a copy of the information about the School retained by us, and the right to request that any incorrect information be corrected.
• You, the School authorises Being My Best to use your information for the purposes of marketing products and services.
CHANGES
• These terms and conditions of trade are subject to change.
• Being My Best reserves the right to change these terms of use from time to time by publishing the changed terms on its website and/or in its materials.
• You, the School, acknowledge that it is your responsibility to review these terms of use periodically to be aware of such changes. Your continuing use of the programme provided by Being My Best, following such publication, shall be deemed your acceptance of the revised terms of use.
LIABILITY
• Being My Best is not liable for any direct, incidental, consequential, indirect, special, punitive or similar damages arising out of use of its programme, or any errors or omissions in the content of its materials. You, the School specifically waive any and all claims arising out of the use of this programme.
COPYRIGHT
• All materials Being My Best creates in-house are copyright and provided to the School specifically as an educational aid. You, the School agree that you will not publish or distribute any portion of any materials without prior written permission from the Director of Being My Best, Susan Lyon.
© Being My Best Ltd 2022
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