Facilitator Terms & Conditions

1.        OVERVIEW

1.1.    Welcome to Essemy Pty Ltd (ACN 631 236 434) (“Essemy”) – an entity providing a platform which connects buyers of training to expert facilitators. These terms and conditions (“Terms”) govern the relationship between Essemy, its Related Bodies Corporate (“Essemy”, “us” or “we”) and the person or entity registered with Essemy to provide services (“Facilitator”).

1.2.    Essemy facilitates the interaction between Facilitators and Clients and provides other ancillary services including, scheduling of in-house workshops, scheduling of Special Projects, payment and collection processing (“Essemy Services”). These Terms apply to Clients’ use of the Essemy platform and associated websites (“Site”), including the Essemy Services and Projects.

1.3.    We may from time to time, amend, update or change the Site including these Terms, with prior notice to you. Consequently, you should regularly check these Terms for changes. These are the current Terms and replace any other terms and conditions of use previously published for the Site.

1.4.    Please read all these Terms carefully before using the Sites or Essemy Services. By checking the box, clicking the “Submit” button or by continuing to use the Site or Essemy Services, you are agreeing to be bound by these Terms, including any changes to the terms that may have been made since your prior use of the site.

 

2.       DEFINITIONS

2.1.    Client means a buyer of Training Services

2.2.    Essemy Services means:

2.2.1. facilitation of the interaction between Facilitators and Clients;

2.2.2. scheduling of in-house workshops;

2.2.3. scheduling of Special Projects,

2.2.4. payment and collection processing;

2.2.5. digital marketing of training services; and

2.2.6. ancillary services

2.3.    Essemy website means a website owned, monitored and operated by Essemy Pty Ltd (ACN 631 236 434);

2.4.    Facilitator means an expert approved to advertise his/her services on the Essemy website, upload or post workshops or training sessions on the Essemy website or is engaged by Essemy to deliver any project including Special Projects. The term Facilitator and the term Expert will be used interchangeably from time to time, but will always have the same meaning;

2.5.    Facilitator Content means content created by a Facilitator for the Training Services to be provided the Client;

2.6.    GST, GST law and other terms defined in GST law have the meaning given to those terms in A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time.

2.7.    In-house Workshop means a workshop scheduled and purchased by a Client for delivery as a private onsite or offsite engagement;

2.8.    Participant means an individual participating in any training service you deliver;

2.9.    Posted Content means any content, information, text, graphics, images, audio or video, or material created or uploaded with Essemy’s prior written approval to a profile and/or the Site;

2.10.   Related Body Corporate has the same meaning given to that term under the Corporations Act 2001 (Cth);

2.11.    Special Projects means services delivered by Essemy experts, including but not limited to, customised training solutions, consulting, coaching, mentoring, keynote speaking;

2.12.    Site means Essemy platform and associated websites;

2.13.    Training Services means a workshop or training session or a series of workshops or training sessions, which can be booked as a part of a program or as an In-house Workshop and

2.14.    You or Your means (as applicable) a person or the entity registered with Essemy as a Facilitator.

 

3.       ACKNOWLEDGEMENTS

3.1.    Essemy is a technology services provider that does not provide Training Services, function as a Facilitator, nor operate as an agent for the training of participants.

3.2.    Essemy provides services for the purpose of providing lead generation and booking management to independent providers of training services. Essemy facilitates the interaction between Facilitators and Clients and provides other Essemy Services. The Essemy Services enable you (once approved by Essemy) to seek, receive and fulfil requests for training, consulting and workshops from an authorised Client of Essemy.

3.3.    This Agreement sets out the terms and conditions for you to access and use the Essemy Website. Upon execution (electronic or otherwise) of this Agreement, you and Essemy, shall be bound by the terms and conditions set forth herein.

 

4.       FACILITATOR’S USE OF SITE

4.1.    Essemy will issue you with a Facilitator Login to enable you to access and use the Essemy platform on a device in accordance with this Agreement.

4.2.    You agree that you will maintain your Facilitator Login in confidence and not share your Facilitator Login with any third party.

4.3.    You will immediately notify Essemy, of any suspected breach or improper use or disclosure of your Facilitator Login.

 

5.       FACILITATOR’S UNDERTAKINGS, WARRANTIES AND REPRESENTATIONS

5.1.    Client requests or bookings for Training Services, may appear to you via the website if you have scheduled availability for in-house workshops. If there is a direct booking, you will receive certain Client information. The Essemy website may provide certain information about you to the Client, including your first and last name, contact information, photo, profile and workshop details. You shall not contact any Clients or use any Client’s personal data for any reason other than for the purpose of fulfilling the Training Services.

5.2.    You acknowledge and agree that:

5.2.1.  you shall be solely responsible for determining the most effective and safe manner to perform Training Services and Special Projects;

5.2.2. you shall provide all necessary equipment and materials at your own expense, necessary to perform the Training Services and Special Projects;

5.2.3. make all necessary enquiries of the Client to ascertain their requirements and objectives;

5.2.4. comply with any Client policy, direction or instructions;

5.2.5. comply with all applicable laws; and

5.2.6. obtain any required insurances which may include professional indemnity, open liability and or workers compensation and provide evidence to Essemy.

 

5.3.    Warranties: You warrant and represent that:

5.3.1. The information you provide Essemy is and shall remain complete, accurate, true and correct and you will update any additional or new information to Essemy as soon as possible prior to any further engagement with a Client.

5.3.2. You have never been convicted of an indictable offence; or the subject of an investigation by a regulatory authority (state, federal or foreign) or defended any proceeding where charges of fraud or violation of laws or regulations are alleged.

5.3.3. You have full power and authority to enter into this Agreement and perform your obligations hereunder.

5.3.4. You have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement.

5.3.5. You will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorisations necessary to provide Training Services and Special Project services.

 

6.       ESSEMY’S REPRESENTATIONS

6.1.    Essemy does not participate in screening, selection, contracting and provision of Training Services. Essemy makes available website services to enable Facilitators to receive bookings, identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Facilitators for themselves.

6.2.    Essemy does not, in any way supervise, direct or control Facilitators or their work. Essemy does not set Facilitators’ work hours, work schedules, location of work, nor is Essemy involved in determining Facilitator Fees.

6.3.    Essemy does not ascertain the accuracy of any feedback or information given to us by Facilitators or Clients, nor does Essemy perform background checks on Facilitators or Clients, excepting requirements as to provision of a national police clearance check set out in clause 7.4.4.

 

7.       PROVISION OF TRAINING SERVICES

7.1.    Your Relationship with Clients: You acknowledge and agree that you have a direct relationship with the Clients when providing Training Services to them and Essemy is not a party to it. Essemy is not responsible for any actions or interactions between you and the Client in relation to Training Services and you shall have the sole responsibility for any obligations or liabilities to Clients or third parties that arise from you providing Training Services to the Client. You acknowledge and agree for Essemy to release your contact and/or insurance information to a Client upon such Client’s reasonable request. You acknowledge and agree that, unless consented to by a Client, you will not allow external parties into an In-house training session.

7.2.    Your Relationship with Essemy:

7.2.1. You acknowledge and agree your relationship with Essemy is limited to provision of the website and the Essemy Services. Essemy does not direct or control you in relation to you providing Training Services to the Client, your acts or omissions, or your training material.

7.2.2. You are entitled to determine when and for how long you will utilise the Essemy website or services.

7.2.3. You must keep your availability up to date on the Essemy platform or any other similar facility that Essemy provides.

7.2.4. You are entitled to provide services or otherwise engage in other businesses or employment.

7.2.5. You must not display the Essemy logo or colours on your training material or wear a uniform or any other clothing displaying Essemy name or colours.

7.2.6. Essemy retains the right to, at any time and at Essemy’s sole discretion to deactivate or otherwise restrict you from accessing or using the website or the Essemy Services for breach of any term of this Agreement, your disparagement of Essemy or any partners, any act or omission that causes harm to Essemy’s brand, reputation or business as determined by Essemy in its sole discretion or for any other reason at Essemy’s sole discretion.

 

7.3.    Delivery Feedback:

7.3.1. You acknowledge and agree that after receiving Training Services, a Client will be prompted by Essemy to provide a rating of you and the Training Services and optionally, to provide comments or feedback about you and the Training Services.

7.3.2. You acknowledge that Essemy aims for Clients to have access to high-quality services via the Essemy website. In order for Facilitators to continue receiving access to the website and Essemy services, you must maintain an acceptable rating, established by Essemy for your territory or state, as may be updated from time to time by Essemy at its sole discretion (“Minimum Average Rating”). In the event your average rating falls below the Minimum Average Rating, Essemy will notify you and may provide you, at Essemy’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Essemy reserves the right to discontinue your access to the Website and Essemy Services.

7.3.3. Essemy reserves the right to use, share and display your delivery feedback in any manner in connection with its business. You acknowledge and agree that Essemy is a distributor (without any obligation to verify the accuracy of the information) and not publishers of your delivery feedback, provided that Essemy reserves the right to edit or remove comments or ratings in the event that such comments contain objectionable content or may be inaccurate, include personal information, or violate any privacy laws, other applicable laws or Essemy’s content policies. If a Facilitator closes their account with Essemy, any reviews relating to that Facilitator will be deleted and not accessible any longer.

7.3.4. Facilitators have the right to request that 1 in 20 comments be removed from the public reviews that appear on their personal profile page. Requests will need to be submitted in writing and Essemy will process any removals within 48 hours of receiving the request.

 

7.4.    Facilitator’s Requirements

7.4.1. Skill Requirements: You acknowledge and agree that at all times, you must (a) possess the appropriate level of training, expertise and experience to provide the Training Services and Special Project services in a professional manner with due skill, care and diligence; (b) maintain high standards of professionalism and service.

7.4.2. You acknowledge and agree that Essemy reserves the right, at any time at Essemy’s sole discretion to discontinue or otherwise restrict you from accessing or using the website or Essemy Services if you fail to meet the appropriate requirements.

7.4.3. Material requirements: You acknowledge and agree that your training materials must be (a) your sole material, either licensed or created by you (b) suitable to be delivered to your target audience (c) have appropriate supporting material (for example, PowerPoint presentations and handouts for participants). (d) your material must be accurate and current. Essemy accepts no liability in regards to the content and material you deliver or provide to Participants or Clients. You may be required to provide Essemy with a sample of the content you intend to offer through the Essemy website before providing the Training Services to Clients. If requested, you must provide the sample prior to providing Training Services or Special Project services to Clients.

 

7.4.4. Facilitator Profile, Workshop Overview and Availability: You acknowledge that you are responsible to create content to describe yourself and your training services, including but not limited to, your own workshop overviews or description of workshops, facilitator profile, and to ensure your calendar is up to date with open availability for In-house workshops. Essemy may make suggestions on content improvements, and retains the right to make automatic adjustments as required to ensure that the Essemy site publishes high quality content.

 

7.4.5. Facilitator Application: To use the Essemy website, you are required to apply through the Essemy website, complete a questionnaire on quality delivery standards and provide necessary information for Essemy to make a decision on your suitability. You are required to provide a current national police clearance check to Essemy with your application. Essemy permits Facilitators who comply with Essemy standards to use the Essemy platform and only those that meet Essemy standards will be granted access to the website. We may from time to time, use the information you have provided to make our own enquiries (either by Essemy or a third party engaged by us) as to the completeness, accuracy or truthfulness of your information. Essemy may suspend or cancel your access to the website should you fail to provide information as and when requested within the given timeframe. Essemy may without notice cancel your access to its website, and disclose any incorrect information to relevant persons or authorities.

 

7.4.6. Documentation: You must provide Essemy with copies of all qualifications, awards or certificates that relate to your suitability to deliver Training Services including evidence if you are providing certified or accredited workshops. Essemy reserves the right to independently verify your Documentation from time to time in any way Essemy deems appropriate in its reasonable discretion

7.5.    Training Services:

7.5.1. Change of date for an In-house booking: Facilitators must contact Essemy regarding any delivery changes. The Client can reschedule the delivery date through Essemy up to 7 days prior to the scheduled workshop delivery, pending availability.

7.5.2. Cancellation of scheduled In-house booking. Facilitators must contact Essemy regarding any delivery changes. If a Facilitator cancels the booking, the client may demand a full refund or a reschedule with a new date with the same facilitator at no additional cost. The Client can cancel the booking up to 14 days prior to the scheduled workshop delivery date, with a full refund. If Client cancels within 14 days of training, the client is eligible for a 50% refund or a reschedule with the same facilitator at no additional cost. If the client elects to receive a 50% refund, the balance of 50% will be distributed between Essemy and the Facilitator in equal shares.

7.5.3. Number of bookings. Essemy makes no representation regarding the frequency, quantity, or type of bookings you will receive.

7.5.4. Publication of Client details: Unless the Client and Essemy, both permit a Facilitator in writing or if required by law, you may not refer to the Client or its businesses in any of your materials, website, social media or other operations outside the Essemy website.

8.       PAYMENT TERMS FOR PROVIDING TRAINING SERVICES

8.1.    Training Fee and Your Payment: You are entitled to charge a fee for every Training Service provided to a Client that is obtained via the Essemy Services, for the fee nominated by you. The total fee must be inclusive of all fees and charges with no additional fees charged to the Client or Essemy as part of the delivery of Training Services. You: (i) appoint Essemy as your limited payment collection agent solely for the purpose of accepting the Fee, depending on the region, applicable taxes and fees from the Client on your behalf via the payment processing functionality facilitated by Essemy Services. Essemy agrees to remit, or cause to be remitted, to you on at least a fortnightly basis the Fee less the applicable Service Fee and, depending on the region, certain taxes and ancillary fees. If you have separately agreed with Essemy, other amounts may be deducted from the Fees prior to remittance to you (for example, printing, insurance, government fees and charges etc.), the order of any such deductions from the Fees to be determined exclusively by Essemy. Payments to facilitators will be made fortnightly to facilitators’ nominated bank account after invoice. Payments are made on the 1st and the 15th of each month or the next business day if the 1st and/or the 15th fall on a weekend or public holiday.

8.2.    Changes to Fee Calculation: You have the right to change the Training Fee at any time based on market conditions, however you are unable to change the Training Fee once a proposal is sent to a client or a booking is confirmed for a pre-scheduled Training Service or Special Project service.

8.3.    Service Fee: In consideration of Essemy’s provision of the Training Services, you agree to pay Essemy a 25% inc GST service fee for each Training Service you complete calculated as a percentage of the Fee, provided to you via email or otherwise made available electronically by Essemy from time to time for the applicable Territory (Service Fee). Unless any regulations require otherwise, taxes will be calculated and charged on the Fee, and Essemy shall calculate the Service Fee based on the Fee inclusive of such taxes. Essemy reserves the right to change the Service Fee at any time at Essemy’s discretion based upon local market factors, and Essemy will provide you with written notice in the event of such a change. If Essemy increases the Service Fee, you have the right to terminate the Agreement immediately, with notice. If you continue using Essemy Services after any change in the Service Fee calculations it shall constitute your consent to such change. For Special Projects a fee will be agreed with the facilitator prior to delivery.

8.4.    Cancellation Charges: You acknowledge and agree that Clients may elect to cancel requests for Training Services at any time prior to delivery. In the event that a Client cancels an accepted request for Training Services, Essemy may charge the Client a cancelation fee on your behalf if within 14 days of delivery and the Training Services are not rescheduled. If outside of 14 days of delivery, no cancellation fee will be charged. If charged, this cancellation fee shall be deemed the Fee for the cancelled Training Services for the purpose of remittance to you hereunder (Cancellation Fee). The cancellation fee will be shared between Essemy and you equally.

8.5.    Receipts: Essemy provides a system for the delivery of receipts to Clients for Training Services rendered. Upon payment of Training Services fees by a Client, Essemy prepares a receipt and issues such receipt to the Client via email on your behalf. Receipts include the breakdown of amounts charged to the Client for Training Services and may include specific information about you, including your name, contact information, as well as the workshop that was delivered. Any amendments to a Client’s receipt for Training Services must be submitted to Essemy in writing within three (3) business days after the completion of such Training Services. Absent such a notice, Essemy shall not be liable for any mistakes or amendments to the receipt or for recalculation or disbursement of the Fee.

8.6.    No Additional Amounts: You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Essemy may seek to attract new Clients and to increase existing Clients’ use of the Essemy website. You acknowledge and agree that such advertising or marketing does not entitle you to any additional monetary amounts beyond the fees expressly agreed to be paid in this Agreement. For the purposes of marketing, you agree for Essemy to use content from your profile, any video content or footage, blog or workshop to increase Clients’ use of the Essemy website.

8.7.    Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Training Services as required by applicable law; and (b) provide Essemy with all relevant tax information (including a valid ABN number belonging to you, if obtaining an ABN number is required by applicable law). You further acknowledge and agree that you are responsible for taxes on your own income arising from the delivery of Training Services. Notwithstanding anything to the contrary in this Agreement, Essemy may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Training Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements directly to the applicable governmental tax authorities on your behalf or otherwise.

9.       PROPRIETARY RIGHTS/LICENSE

9.1.    License Grant: Subject to the terms and conditions of this Agreement, Essemy hereby grants you a non-exclusive, royalty-free, non-transferable licence during the term of this Agreement to use the Essemy Website in connection with the provision of the Essemy Services solely for the purpose of providing Training Services to Clients and tracking resulting Fees. All rights not expressly granted to you are reserved by Essemy.

9.2.    Restrictions: You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Essemy Services or Website in any way; (b) modify or make derivative works based upon the Essemy Services or website; (c) improperly use the Essemy Services or website, including “framing” or “mirroring” any part of the Essemy Services or website on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Essemy Services, or website; (d) reverse engineer, decompile, modify, or disassemble the Essemy Services or Website, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Essemy Services or website to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Essemy Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Essemy Services; or (iv) attempt to gain unauthorized access to the Essemy Services or its related systems or networks, all except to the extent such actions must be allowed under Australian law.

9.3.    Ownership: The Essemy Services, Website and Essemy Data, including all intellectual property rights therein, are and shall remain (as between you and Company) the property of Essemy. Neither this Agreement nor your use of the Essemy Services, Website or Essemy Data conveys or grants to you any rights: (a) in or related to the Essemy Services, website or Essemy Data, except for the limited license granted above; or (b) to use or reference in any manner Essemy’s company names, logos, product and service names, trademarks, service marks or other indicia of ownership. Additionally, you acknowledge Essemy’s rights in the ESSEMY family of trademarks and names, including Essemy, alone and in combination with other letters, punctuation, words, symbols and/or designs, the ESSEMY Logo and CHOOSE YOUR EXPERT, DELIVER YOUR PASSION (“ESSEMY Marks and Names”). You agree that you will not try to register or otherwise claim ownership in any of the ESSEMY Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.

10.   CONFIDENTIALITY

10.1. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential Information includes Essemy Data, Facilitator ID, Training Material, Client Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-open information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know should be treated as confidential.

10.2. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Essemy and its Affiliates, their internal record-keeping requirements).

10.3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.

11.   PRIVACY

11.1. Subject to all applicable laws, Essemy or any of its Affiliates may provide to a third party any information (including personal data and any Essemy Data) about you provided hereunder if:

11.1.1.    there is a complaint, dispute or conflict, between you and a Client;

11.1.2.    it is necessary to enforce the terms of the Agreement;

11.1.3.    it is required, in Essemy’s sole discretion, by applicable law or regulation; 

11.1.4.    it is necessary, in Essemy’s sole discretion, to;

11.1.4.1.   protect the safety, rights, property or security of Essemy, the Essemy Services or any third party,

11.1.4.2.  detect, prevent or otherwise address fraud, security or technical issues, and/or

11.1.4.3.  prevent or stop activity which Essemy, in their sole discretion, consider to be, or to pose a risk of being, illegal, unethical, or legally actionable; or

11.1.4.4.  it is required or necessary, in Essemy’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Essemy Services.

11.2.      You understand that Essemy may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated. Your personal data will be directly transferred to and processed by Essemy. Essemy processes personal data in accordance with the privacy policy located at www.essemy.com.au/legal.

 

12.   INSURANCE

12.1. Prior to doing business with Essemy you agree to obtain the coverage as required by Essemy at your sole cost and expense. You agree to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required by Essemy from time to time whilst providing Training Services.

12.2. You agree to provide Essemy a copy of the insurance policy, policy declarations, proof of insurance and proof of premium payment for the insurance policy upon request. Furthermore, you must provide Essemy with any written notice of cancellation of any insurance policy. Essemy is not responsible to select or maintain your policy of insurance. You must be a named insured for which a premium is charged, on the insurance policy at all times.

12.3. You agree to maintain during the term of this Agreement workers’ compensation insurance or other occupational accident injury insurance (or the local equivalent) as required by any applicable law in the State or Territory (provided that the foregoing shall have no impact on the mutual understanding between you and Essemy that you are a self-employed individual (including from a labour and social security perspective).

12.4. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility to resolve them with your insurer(s).

12.5. Essemy may maintain during the term of this Agreement insurance related to your provision of Training Services as determined by Essemy in its reasonable discretion, provided that Essemy is not required to provide you with any specific insurance coverage for any loss to you. Should Essemy procure insurance related to your provision of Training Services, Essemy may cancel such coverage at its sole discretion at any time. You are required to promptly notify Essemy of any issues that occur while providing Training Services and to cooperate and provide all necessary information related thereto.

 

13.   DISCLAIMERS

13.1. Disclaimer of Warranties: This clause applies only to the maximum extent permitted by applicable law, and does not (and is not intended to) override any rights that you have pursuant to applicable law. Essemy provide, and you accept, the Essemy Services, Website on an “as is” and “as available” basis. Essemy do not represent, warrant or guarantee that your access to or use of the Essemy Services, Website: (a) will be uninterrupted or error free; or (b) will result in any requests for Training Services. Essemy function as an on-demand lead generation and related service only and make no representations, warranties or guarantees as to the actions or inactions of the Clients who may request or receive Training Services from you, and Essemy do not screen or otherwise evaluate Clients. By using the Essemy Services and Website, you acknowledge and agree that you may be introduced to a third party (including Clients). You must take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Essemy Services or Website. Notwithstanding the appointment of Essemy as the limited payment collection agent of you for the purpose of accepting payment from Clients on your behalf as set forth above, Essemy is not liable for any act or omission of you, any Client or other third party.

13.2. No Service Guarantee: This clause applies only to the maximum extent permitted by applicable law, and does not (and is not intended to) override any rights that you have pursuant to applicable law. Essemy do not guarantee the availability or uptime of the Essemy Services or Website. You acknowledge and agree that the Essemy Services or Website may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Essemy Services or Website may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Essemy are not responsible for any delays, delivery failures or other damages, liabilities or losses resulting from such problems.

 

14.   INDEMNIFICATION

14.1.  General: You shall indemnify and hold harmless Essemy and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Clients, regulators and governmental authorities) directly or indirectly related to your provision of Training Services or use of the Essemy Services.

14.2. Tax Indemnity: You shall comply with all of your obligations under tax and superannuation laws to the extent applicable to this Agreement. You shall indemnify Essemy from all tax liabilities, duties, levies, claims and penalties that may be imposed on you or on Essemy as a result of your failure to comply with any of your tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, superannuation or employee insurance premiums) arising in the event that the relationship described in this Agreement.

 

15.   LIMITS OF LIABILITY

15.1. This clause applies only to the maximum extent permitted by applicable law, and does not (and is not intended to) override any rights that you have pursuant to applicable law. Essemy shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) your or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for the obligations on Essemy to pay amounts due to you, but subject to any limitations or other provisions contained in this agreement which are applicable thereto, in no event shall the liability of Essemy under this Agreement exceed the amount of Service Fees actually paid to or due to Essemy hereunder in the six (6) month period immediately preceding the event giving rise to such claim. You acknowledge and agree that any and all claims you have or purport to have against Essemy should be notified to Essemy within one (1) year after the event(s) that gave rise to such claim and that you forfeit all rights in respect of that claim if you fail to do so. These limitations do not purport to limit liability that cannot be excluded under applicable law.

 

16.   TERM AND TERMINATION

16.1. This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and shall continue until terminated as set forth herein.

16.2. Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Essemy may terminate this Agreement or deactivate your Facilitator ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Essemy, to provide Training Services or as otherwise set forth in this Agreement.

16.3. Effect of Termination. Outstanding payment and delivery obligations for booked Training Services shall survive the termination of this Agreement unless you no longer meet the delivery standards and policies of Essemy or have had your access terminated due to gross misconduct or a breach of this Agreement.

16.4. Relationship of the Parties Except as otherwise expressly provided herein with respect to Essemy acting as the limited payment collection agent solely for the purpose of collecting payment from Clients on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labour law, tax law or employment law), between Essemy and you; and (b) no joint venture, partnership, or agency relationship exists between Essemy and you.

16.5. You have no authority to bind Essemy and you undertake not to hold yourself out as an employee, agent or authorized representative of Essemy. Where, by implication of mandatory law or otherwise, you may be deemed an employee, agent or representative of Essemy, you undertake and agree to indemnify, defend (at Essemy’s option) and hold Essemy harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.

16.6. You expressly acknowledge and agree that by agreeing to the terms and conditions of this Agreement you intend to perform Training Services in a non-incidental manner and, as such, Essemy will consider you to be a taxable person in accordance with all applicable GST and indirect tax legislation.

 

17.   NON-SOLICITATION:

17.1. Where a Client and Facilitator have been introduced through Essemy, you must not;

17.1.1. Approach, solicit, entice, offer to perform additional Training services without paying Essemy the appropriate fee. All Training Services are to be referred back to Essemy.

17.2. These obligations apply for so long as the Facilitator or Client is registered with Essemy and for 12 months from the most recent Training Service with a Client

17.3. The Facilitator must immediately notify Essemy in writing of any approach, engagement or contract contemplated by this clause. Failure to do so is a material breach of these terms.

 

18.  MISCELLANEOUS TERMS

18.1. Modification: Essemy reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the online portal available to you on the Essemy Services. Essemy reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Essemy Services you are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the Essemy Services, Website after any such changes shall constitute your consent to such changes.

18.2. Supplemental Terms: Supplemental terms may apply to your use of the Essemy Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.

18.3. Severability: If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement.

18.4. Assignment: You may not assign or transfer this Agreement or any of your rights or obligations hereunder, in whole or in part, without the prior written consent of Essemy. Essemy may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. Should the Essemy do so, you have the right to terminate this Agreement immediately, without prior notice.

18.5. Entire Agreement: This Agreement, including the recitals and all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.

18.6. No Third Party Beneficiaries: You acknowledge that there are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third party beneficiary claims.

18.7.  Notices: Any notice delivered by Essemy to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the online portal available to you on the Essemy Services. Any notice delivered by you to Essemy under this Agreement will be delivered by contacting Essemy at [email protected].

 

19.   GOVERNING LAW

19.1. Except as otherwise set forth in this Agreement, this Agreement shall be governed by and construed in accordance with the laws of Australia.

 

20.   DISPUTE RESOLUTION

20.1. If a dispute arises out of or relating to these Terms the parties agree to endeavour to settle the dispute by mediation administered by the Australian Disputes Centre (ADC) before litigation. The mediation shall be conducted in accordance with ADC guidelines which are in operation at the time the dispute is referred to ADC.

20.2. This clause shall survive termination of these Terms.

20.3. Essemy will not provide any dispute assistance in relation to disputes arising between Facilitators and Clients.

20.4. Nothing in this paragraph limits the rights of any party to seek or obtain urgent interlocutory or interim relief.

By clicking “I accept” (as such may be required by applicable law), you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Essemy. For a copy of this agreement please visit www.essemy.com.au/legals