Terms and Conditions

These Terms and Conditions govern the provision of all Services by Encite Partners (Conscious Ventures, ACN 103 939 091). By engaging our Services, you accept these terms. Please read them carefully.

  1. DEFINITIONS

1.1          Unless the context otherwise requires in construing this agreement:

(a) “Advisor” means Coach, Consultant, Advisor, Mentor or any person acting on behalf of and with the authority of Encite Partners (Conscious Ventures, ACN 103 939 091).

(b) “Client” means the person, persons or entity engaging the Advisor to provide the Services as specified in any agreement, contract, document or order, and includes any directors, officers, employees, contractors or representatives of the Client (whether or not specifically named in the agreement, contract, document or order) who engage with the Advisor in connection with the Services. Where more than one person comprises the Client, this is a reference to each person jointly and severally.

(c) “Services” means all Services (including but not limited to change management, leadership, strategy development, personal development, coaching, training, growth strategies and other advice) provided by the Advisor to the Client at the Client’s request from time to time, and includes any goods, documents, designs, programs, strategies, or materials supplied, consumed, created or deposited incidentally by the Advisor in the course of conducting, or providing to the Client, any Services.

(d) “Proposal” means the Advisor’s proposal/quotation for the provision of the Services, as prepared and submitted to the Client to describe the actual scope of the Services to be provided, the personnel and other resources proposed to be utilised, and the amount or method of calculation of the Fee and any reimbursable expenses.

(e) “Fee” means the price payable for the Services as agreed between the Advisor and the Client in accordance with clause 7 of this contract.

(f) “Confidential Information” means all technical information, know-how, financial information, Intellectual Property, and other commercially valuable or sensitive information of whatever description which a party regards as confidential, proprietary or of a commercially sensitive nature. It excludes information which:

(i) is lawfully in the public domain before its disclosure, or enters the public domain afterwards through an unauthorised disclosure;

(ii) becomes available to the receiving party from someone lawfully in possession of it who lawfully discloses it on a non-confidential basis;

(iii) is rightfully known by the receiving party before disclosure to it.

  1. AUSTRALIAN CONSUMER LAW

2.1          Nothing in this agreement excludes, restricts, or modifies any remedies or guarantees under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (“ACL”), or is intended to have the effect of contracting out of any applicable provisions of the ACL or the Fair Trading Acts in each of the States and Territories of Australia (including any substitute or re-enactment thereof). To the full extent permitted by law, where the benefit of such remedy or guarantee is conferred upon the Client pursuant to the ACL, the Advisor’s sole liability for breach of any such remedy or guarantee shall be limited to the remedies available thereunder.

  1. ACCEPTANCE

3.1          These terms and conditions may be required to be read in conjunction with the Proposal. If there are any inconsistencies between these documents then the terms and conditions shall prevail.

3.2          The Parties are taken to have accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Advisor.

3.3          These terms and conditions may only be amended with the consent of both parties in writing and shall (subject to clause 3.1) prevail to the extent of any inconsistency with any other document or agreement between the Client and the Advisor.

3.4          None of the Advisor’s staff, third-party professionals, or organisation associates are authorised to make any representations, statements, conditions or agreements not expressed by the Advisor in writing, nor is the Advisor bound by any such unauthorised statements unless they are expressly set out in the Proposal.

3.5          This agreement does not create or represent any form of employment or partnership or a fiduciary relationship of principal and agent between the parties.

  1. CHANGE IN CONTROL

4.1          The Client shall give the Advisor not less than thirty (30) days prior written notice of any proposed change of ownership of the Client, and not less than fourteen (14) days prior written notice of any other change in the Client’s details (including but not limited to changes in the Client’s name, address, contact phone number/s, or organisation practice). The Client shall be liable for any loss incurred by the Advisor as a result of the Client’s failure to comply with this clause.

  1. PROVISION OF THE SERVICES

5.1          The Advisor shall use its best reasonable endeavours to provide the Services to the Client in accordance with good organisation practice, however:

(a) any time specified by the Advisor for provision of the Services is an estimate only and the Advisor will not be liable for any loss or damage incurred by the Client as a result of any delay;

(b) both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as arranged between both parties. The Client acknowledges that failure to provide accurate information or act in a timely manner, and/or constraints the Client imposes on the Advisor, may affect outcomes and/or the Advisor’s ability to provide the Services. In the event that the Advisor is unable to provide the Services as agreed solely due to any action or inaction of the Client, the Advisor shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.

5.2          The Client acknowledges that:

(a) in providing the Services the Advisor relies on the information and material provided by the Client, without independently verifying such;

(b) the Services are provided to the Client for their sole benefit and must not be relied on by any other party;

(c) the Services do not include information and advice relating to tax, accounting and legal matters relating to the implementation of organisation strategies, and it is recommended that the Client seek the advice of other organisation advisors suitably qualified in these areas.

  1. CLIENT’S OBLIGATIONS

6.1          The Client agrees to:

(a) give the Advisor access to their organisation that the Advisor reasonably requires in order to properly provide the Services to the Client, details of which will be set out in the Proposal;

(b) keep the Advisor informed of any developments (such as a change to information provided to the Advisor) that a reasonable person would consider is likely to impact on the Services.

  1. FEE AND PAYMENT

7.1          At the agreement of the parties, the Fee shall be either:

(a) as indicated on any invoice provided by the Advisor to the Client; or

(b) the Advisor’s quoted price (subject to clause 7.2) which will be stipulated in the Proposal and valid for the period stated therein.

7.2          The Advisor reserves the right to change the Fee if a variation to the Services (including any variation to the Client’s brief or specifications, such as an extension to the duration of the Services) is requested, or for any disbursements excluded from the scope of Services specified in the Proposal and/or the terms and conditions stated herein, that may arise or be required.

7.3          Time for payment for the Services is of the essence. The Fee will be payable by the Client on the date/s determined by the Advisor, which may be:

(a) the date specified on any invoice or other form as being the date for payment; or

(b) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by the Advisor.

7.4          Payment may be made by electronic/online banking, credit card (plus a surcharge equal to the Advisor’s actual and reasonable cost of card acceptance for the relevant card type), or by any other method as agreed between the Client and the Advisor. The Advisor will notify the Client of the applicable surcharge at the time of payment. The Advisor will monitor and comply with any applicable RBA merchant surcharging standards and legislative requirements as they apply from time to time.

7.5          Unless otherwise stated the Fee does not include GST. In addition to the Fee the Client must pay to the Advisor an amount equal to any GST the Advisor must pay for any provision of Services under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition the Client must pay any other relevant local taxes and duties that may be applicable in their country or region in addition to the Fee, except where they are expressly included in the Fee.

7.6          The Client acknowledges and agrees that the Client’s obligations to the Advisor for the provision of the Services shall not cease until the Client has paid the Advisor all amounts owing for the Services.

7.7          Receipt by the Advisor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Advisor’s ownership or rights in respect of the Services, and this agreement, shall continue.

  1. SESSION CANCELLATION AND RESCHEDULING

8.1          Both the Client and the Advisor agree to use reasonable endeavours to inform the other party with the earliest possible notice for changes or cancellations to scheduled sessions. In the instance of multiple members of the Client’s organisation engaging with the Advisor, the Client will also take responsibility for ensuring this is communicated to their team.

8.2          The Advisor reserves the right to charge additional fees for repeated cancellations with insufficient notice.

  1. INTELLECTUAL PROPERTY

9.1          Any Intellectual Property arising in relation to any work, material or process developed by the Advisor as a result of the provision of Services to the Client shall belong to the Advisor and is made available to the Client for internal use only.

9.2          The Client agrees that the Advisor may (at no cost) for the purposes of marketing, make reference to the Client as a customer.

  1. CONFIDENTIAL INFORMATION / CONFLICT OF INTEREST

10.1         The Parties each assume liability for all loss or damage suffered by the other Party as a result of breach of confidentiality undertaken by it, by itself or its employees or agents.

10.2         The obligations of confidentiality shall survive the finalisation or discontinuance of any agreement between the Client and the Advisor.

10.3         The Client agrees to treat all Confidential Information (including information, materials, methodologies and proprietary program content) communicated to them by the Advisor confidentially and agrees not to divulge it to any external third party without written consent from the Advisor.

10.4         The Advisor is obliged to remain vigilant to, and to advise the Client of, any conflict of interest that may potentially impact or harm the Client. To avoid conflict of interest and commercial sensitivities, any and all information regarding the Client (and their organisation, commercial agenda and employees) shall remain confidential at all times and shall only be disclosed in the event of a legal order or obligation.

  1. LIMITATION OF LIABILITY

11.1         The Advisor undertakes to act in all professional matters as a faithful Advisor to the Client, whose interests will be watched over with skill and care. Notwithstanding:

(a) any recommendations given to the Client by the Advisor as part of the provision of the Services are based on information and materials provided by the Client without verification by the Advisor. Subject to clause 2 and to the maximum extent permitted by law, including the ACL, the Client acknowledges and agrees that:

(i) the Advisor gives no representation or guarantee as to the profitability, share price, turnover, growth or other aspects of the Client’s organisation;

(ii) all other conditions, terms, representations and warranties (whether express or implied by law), in respect to the provision of any advice, recommendations, information or services which may be binding on the Advisor, are excluded to the maximum extent permitted by law.

(b) subject to clause 2, the Advisor shall only be liable to the Client for the consequences of any negligent act, omission or statement of the Advisor, and then only to the extent and limitations referred to in clause 18.3.

11.2         To the maximum extent permitted by law, including the ACL, the liability of the Advisor to the Client shall expire six (6) months from the date of either completion or termination of the Services, unless in the meantime the Client has made a claim in writing to the Advisor specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.

11.3         Notwithstanding clauses 11.1 and 11.2, and subject to clause 2, the Advisor shall not be liable for any loss or damage sustained or sustainable by a Client in relation to:

(a) errors occurring in any goods, materials, documentation, information, etc. not created or prepared by the Advisor;

(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, the Advisor;

(c) the use of any information or advice without the approval of the Advisor.

11.4         Information, feedback and discussions do not substitute for the Client’s independent judgement and experience nor expert or legal advice. The Advisor’s focus is to assist the Client in making informed decisions about their organisation by providing objective feedback. Any application of recommendations provided by the Advisor is at the Client’s discretion. The Advisor does not warrant or guarantee the success or outcome resulting from the provision of the Services in any particular circumstances, for the Client or the Client’s organisation.

  1. DEFAULT AND CONSEQUENCES OF DEFAULT

12.1         To the maximum extent permitted by law, interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment, at a rate of ten percent (10%) per annum simple (being the Queensland Supreme Court default judgment rate), calculated on a daily basis.

12.2         If the Client owes the Advisor any money the Client shall indemnify the Advisor from and against all costs and disbursements incurred by the Advisor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Advisor’s contract default fee, and bank dishonour fees).

12.3         Without prejudice to any other remedies the Advisor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Advisor may suspend or terminate the provision of Services to the Client. The Advisor will not be liable to the Client for any loss or damage the Client suffers because the Advisor has exercised its rights under this clause.

12.4         Without prejudice to the Advisor’s other remedies at law the Advisor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Advisor shall, whether or not due for payment, become immediately payable if:

(a) the Client breaches these terms and conditions, and provided that the breach is capable of remedy the Client has failed to remedy that breach within a reasonable period (being not less than five (5) business days) after receiving written notice from the Advisor requiring them to do so;

(b) any money payable to the Advisor becomes overdue, or in the Advisor’s reasonable opinion the Client will be unable to make a payment when it falls due;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  1. TERMINATION

13.1         Either party may terminate any contract to which these terms and conditions apply at any time, without being liable to the other for any loss or damage whatsoever arising from such termination, provided they have given reasonable prior written notice to the other party. On giving such notice, and where applicable:

(a) the Advisor shall repay to the Client any money paid by the Client for the Services, less any amounts owing to the Advisor for Services provided up to the date of termination; or

(b) the Client shall pay the Advisor for all Services provided up until the termination date.

  1. PRIVACY

14.1         The Advisor will handle all personal information in accordance with the Privacy Act 1988 (Cth) (as amended from time to time), the Australian Privacy Principles contained in Schedule 1 of that Act, and the Advisor’s Privacy Policy available at encitepartners.com.

14.2         The Client shall have the right to request (by email) from the Advisor:

(a) a copy of the information about the Client retained by the Advisor and the right to request that the Advisor correct any incorrect information; and

(b) that the Advisor does not disclose any personal information about the Client for the purpose of direct marketing.

14.3         The Advisor will destroy personal information upon the Client’s request (by email) or if it is no longer required, unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

14.4         The Client can make a privacy complaint by contacting the Advisor via email. The Advisor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Office of the Australian Information Commissioner at www.oaic.gov.au.

  1. CLAIMS

15.1         To the maximum extent permitted by law, the Advisor shall be under no liability whatsoever unless:

(a) written notice of any claim, giving full particulars of any alleged error or omission, failure to comply with the Proposal or this contract, or any loss or damages suffered by the Client, is received by the Advisor within sixty (60) days after completion of the Services; and

(b) an action shall have been commenced by the Client in a Court of competent jurisdiction within six (6) months of the provision of the Services.

15.2         The failure to notify a claim within the time limits under clause 15.1 may be taken into account as evidence of satisfactory performance by the Advisor of its obligations. This clause applies to the maximum extent permitted by law, including the ACL.

  1. AUTHORITY TO USE CLIENT MATERIAL

16.1         The Advisor may from time to time request the Client expressly releases and authorises the Advisor to use information contained in materials, documents, images or information provided by the Client for the promotion of the Advisor or to assist others and the Advisor’s services generally.

  1. DISCLOSURE

17.1         The Client acknowledges that:

(a) although it is not standard practice, the Advisor can, and may, in specific circumstances refer the Client for products and/or professional services associated with the provision of the Services by the Advisor. The Client further acknowledges that the Advisor may expect to derive consideration, either monetary or otherwise, from the referral; and

(b) a third party may derive consideration, either monetary or otherwise, from the referral.

  1. GENERAL

18.1         The failure by the Advisor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Advisor’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

18.2         These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the Courts in that State.

18.3         Subject to clause 2 and to the maximum extent permitted by law, including the ACL, the Advisor shall be under no liability whatsoever to the Client for any indirect, incidental, special and/or consequential loss and/or expense (including loss of profit, revenue, organisation opportunities, etc.) suffered by the Client arising out of a breach by the Advisor of these terms and conditions. Alternatively, and to the maximum extent permitted by law, the Advisor’s liability shall be limited to damages which under no circumstances shall exceed the Fee during the twelve (12) month period prior to such event.

18.4         The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Advisor, nor to withhold payment of any invoice because part of that invoice is in dispute.

18.5         The Advisor may amend these terms and conditions from time to time. Any change to these terms and conditions will be communicated to the Client in writing at least fourteen (14) days before the change takes effect. Changes will apply only to new or future engagements entered into after the effective date of the change and will not affect any existing or in-progress engagement unless both parties agree in writing. If the Client does not accept a proposed change, they may terminate their current engagement on fourteen (14) days written notice without penalty or further liability, subject to payment for Services provided up to the termination date.

18.6         Neither party shall be liable for any default for payment or Services, delay, defect or deficiency hereunder to the extent that such default, delay, defect or deficiency is caused by an event of force majeure which affects performance by hindering, delaying or making considerably more difficult the fulfilment of commitments of the party, including any act of God, war, terrorism, fire, flood, storm or other event beyond the reasonable control of either party.

18.7         The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

18.8         The Client acknowledges and agrees that the obligations set out in clauses 9 and 10 shall survive the expiration or termination of this contract.

  1. DISPUTE RESOLUTION

19.1         If a dispute arises between the parties in connection with this agreement, the parties agree to attempt to resolve the dispute in accordance with the following procedure before commencing legal proceedings (except as provided in clause 19.2):

(a) the party claiming a dispute exists must give written notice to the other party specifying the nature of the dispute;

(b) within fourteen (14) days of receipt of that notice, senior representatives of both parties must meet (or communicate by telephone or video conference) and attempt in good faith to resolve the dispute by negotiation;

(c) if the dispute is not resolved within fourteen (14) days of that meeting (or such further period as the parties agree in writing), either party may refer the dispute to non-binding mediation administered by a mutually agreed mediator or, failing agreement, a mediator appointed by the Queensland Law Society. The costs of the mediator shall be shared equally between the parties unless otherwise agreed.

19.2         Nothing in this clause prevents either party from seeking urgent injunctive or equitable relief from a court of competent jurisdiction at any time.

19.3         Nothing in this clause affects the Advisor’s right to pursue recovery of overdue amounts through appropriate legal channels.