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 businesses seeking a Facilitator to provide services to them (“Client” or “You”).
1.2. Essemy facilitates the interaction between Facilitators and Clients and provides other ancillary services including, scheduling of in-house or public 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.
2.1 Client means a buyer of Training Services;
2.2 Essemy Services means:
i. facilitation of the interaction between Facilitators and Clients;
ii. scheduling of in-house or public workshops;
iii. scheduling of Special Projects,
iv. payment and collection processing;
v. digital marketing of training services; and
vi. 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;
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 Public Workshop means a workshop that is open to public organised by a facilitator at a location where clients can book to attend the workshop for themselves, or others, or with participants from other organisations;
2.11 Related Body Corporate has the same meaning given to that term under the Corporations Act 2001 (Cth);
2.12 Special Projects means services delivered by Essemy experts, including but not limited to, customised training solutions, consulting, coaching, mentoring, keynote speaking;
2.13 Site means Essemy platform and associated websites;
2.14 Training Services means a workshop or training session, a series of workshops or training sessions, posted or uploaded with Essemy’s prior written approval to the Site by a Facilitator as public courses or delivered in-house on a client’s premises, which can be booked as an individual program, an In-house Workshop or as a public workshop; and
2.15 You or Your means (as applicable) a person or the entity registered with Essemy as a Facilitator.
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 or public 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;
5.2.2 you shall be solely responsible for search, schedule, payment and all associated responsibilities with selection of workshop venue for Public Workshops;
5.2.3 you shall provide all necessary equipment and materials at your own expense, necessary to perform the Training Services;
5.2.4 for In-house workshops, make all necessary enquiries of the Client to ascertain their requirements and objectives;
5.2.5 comply with any Client policy, direction or instructions;
5.2.6 comply with all applicable laws; and
5.2.7 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 a 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 authorizations necessary to provide Training 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. You may permit external participants to join a public workshop that you have advertised through Essemy and must notify Essemy if you have any such participants. These external participants are not required to pay any fees to Essemy and Essemy is not required to provide any services to such external participants.
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 In the event that external participants are attending a public workshop, you must notify Essemy once any of these workshops have achieved maximum capacity for Essemy to stop advertising them any further.
7.2.6 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.
7.2.7 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.
7.3.1 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 Clients to continue receiving access to the website and Essemy services, you must maintain an average rating by Clients that exceeds the minimum average acceptable rating established by Essemy for your territory or state, as may be updated from time to time by Essemy in 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 and Client ratings and comments 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 and Client ratings and comments, 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 in a professional manner with due skill, care and diligence; (b) maintain high standards of professionalism and service. 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.
7.4.2 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 to Clients.
7.4.3 Facilitator Profile, Workshop Overview, Availability and Public Workshop Schedule: 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 you are responsible to schedule public workshops 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.
7.4.4 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.
7.4.5 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 Setting up dates for Public Workshops: You are required to provide adequate lead time with Essemy’s prior approval for public workshop dates to enable sufficient booking opportunities.
7.5.2 Accepting a public workshop booking: Facilitators agree to accept all participants into their program within the pre-set participant limit for all public workshop bookings. Public workshop bookings are automatic and facilitators do not have the option to accept or reject participants. Clients make a payment of 50% of the amount at the time of booking to secure a place. When a public workshop is confirmed with minimum viable numbers at 5 days prior to workshop delivery, the remaining 50% payment will be processed automatically from the client’s nominated credit or debit card.
7.5.3 Change of date for an In-house booking: Facilitators must contact Essemy regarding any delivery changes. The Client can reschedule the delivery date through the Essemy website up to 7 days prior to the scheduled workshop delivery, pending availability.
7.5.4 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 through the website up to 7 days prior to the scheduled workshop delivery date, with a full refund. If Client cancels within 7 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 50% will be distributed between Essemy and the Facilitator in equal shares.
7.5.5 Cancellation of scheduled Public workshop. Facilitators may cancel scheduled public workshops with a full refund to be paid to workshop participants. Essemy takes no responsibility and is not liable for any losses incurred by the Facilitator in scheduling and cancelling workshops. The Client may cancel their enrolment through the website up to 14 days prior to the scheduled workshop delivery, with a full refund. If Client cancelation is within 14 days of training, the Client can reschedule the workshop for a future date with the same facilitator at no additional charge, however no refunds apply.
7.5.6 Change of date for a Public Workshop. Facilitators must contact Essemy in regards to any date changes for a scheduled Public Workshop for approval.
7.5.7 Number of bookings. Essemy makes no representation regarding the frequency, quantity, or type of bookings you will receive.
7.5.8 Publication of Client details: Subject to a Client permitting a Facilitator in writing or if required by law, you may 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 are 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. 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 at least one booking is confirmed for a pre-scheduled Training 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 in 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.
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 you 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. Such receipts are also provided to you via email or the online portal available to you through the Essemy Services. 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, using the booking system 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.
10.1 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.
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.
13.1 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.
14.1 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
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: Where a Client and Facilitator have been introduced through Essemy, you must not:
17.1 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, however this clause excludes offers of employment with Clients and consulting services that are not Training Service related.
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 firstname.lastname@example.org.
19. GOVERNING LAW
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
Booking terms and conditions
TERMS AND CONDITIONS OF USE (CLIENTS)
Welcome to Essemy Pty Ltd (ACN 164 920 674) (“Essemy”) – an entity providing a platform which connects buyers to expert facilitators. These terms and conditions (“Terms“) govern the relationship between Essemy, its Related Bodies Corporate (“Essemy”, “us” or “we“) and individuals and businesses seeking a Facilitator to provide services to them (“Client” or “You”).
Essemy facilitates the interaction between Facilitators and Clients and provides other ancillary services including, scheduling of In-house or Public 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 any Special Projects booked external to the Site.
We may from time to time, amend, update or change the Site including these Terms, without 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.
Please read all these Terms carefully before using the Sites or Essemy Services. By checking the box, signing a copy of these terms 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.
Client (an individual or business) means a buyer of Training Services;
Essemy Services means:
facilitation of the interaction between Facilitators and Clients;
scheduling of In-house or Public Workshops;
scheduling of Special Projects;
payment and collection processing;
digital marketing of training services; and
Essemy website means a website owned, monitored and operated by Essemy Pty Ltd (ACN 164 920 674);
Facilitator means an expert approved to advertise his/her services on the Essemy website, upload or post workshops or training sessions on Essemy website;
Facilitator Content means content created by a Facilitator for the Training Services to be provided the Client;
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;
In–house Workshop means a workshop scheduled and purchased by a Client for delivery as a private onsite or offsite engagement;
Public Workshop means a workshop organised by a facilitator at a location where clients can book to attend the workshop for themselves, or others, with participants from other organisations;
Participant means an individual participating in any training service;
Posted Content means any content, information, text, graphics, images, audio or video, or material created or uploaded to a profile and/or the Site;
Related Body Corporate has the same meaning given to that term under the Corporations Act 2001 (Cth);
Special Projects means services delivered by Essemy experts, including but not limited to, customised training solutions, consulting, coaching, mentoring, Keynote speaking;
Site means Essemy platform and associated websites;
Training Servicesmeans a workshop or training session, a series of workshops or training sessions, posted or uploaded to the Site by a Facilitator as public courses or delivered in-house on a client’s premises, which can be booked as an individual program, an In-house Workshop or as a Public Workshop; and
You means (as applicable):
a person or the entity registered with Essemy as a Client; and
the individual, natural person accessing or using the Site which are interchangeably used throughout the Terms and Conditions.
CLIENT UNDERTAKINGS AND REPRESENTATIONS
An individual or an entity can view the Site, review and access Facilitator profiles made available on the Site, in order to book Training Services, or arrange the delivery of Special Projects through an Essemy representative.
Clients acknowledge that:
Essemy is not a party to and is not liable for the Training Services, or service arrangements as between Client and Facilitators.
Essemy requires Facilitators to upload supporting documents, complete a diagnostic and interviews, upload insurances and a police clearance certificate when advertising on the Essemy platform, however, Essemy makes no representations as to the accuracy of the information provided by the Facilitators.
Essemy is not liable for any special, indirect, or consequential loss caused by the Client booking Training Services with it.
Without limiting the foregoing, to the extent permitted by law, Essemy makes no warranties, express or implied regarding or relating to the Facilitators or the Training Services.
An organisation registering with Essemy as Client through its employee, represents and warrants that the employee registering the organisation is empowered to register the organisation as Client and perform all obligations under these Terms on behalf of the organisation. There is no restriction on or condition of him/her doing so.
You undertake not to post or publish any content that is defamatory towards Essemy or the Facilitator.
PROVISION OF TRAINING SERVICES
You may search Workshops and Facilitators, and book Training Services, via the Site or with the support of our team.
In using the Essemy Services, Clients are responsible to:
undertake the necessary research to satisfy yourself as to whether the Facilitator meets your requirements and objectives; and
ascertain that the Facilitator has current appropriate insurance policies, including professional indemnity, public liability and/or workers’ compensation. You may contact either Essemy or the Facilitator to obtain any further information on the professional indemnity and public liability insurance held by any Facilitator.
You must use Essemy Services strictly in accordance with these Terms and must not use Essemy Services to compete directly or indirectly with Essemy or any of the Essemy Services.
PAYMENT FOR SERVICES
At the time of booking Public or In-house Workshops you agree to pay the nominated fees through the Essemy platform by credit card or debit card. For Special Projects you agree to pay the tax invoice that Essemy provides.
Facilitators may set their own hourly, daily or other rates in respect of any workshop or services and fees may differ for different locations.
Each workshop on the Essemy platform will be advertised at its fixed fee and includes GST.
In case of Special Projects, Essemy will provide a quote to the Client, including a payment schedule for approval. Clients will be invoiced as per the payment schedule with fees to be paid into the nominated Essemy bank account or via credit card.
Refund Policy for In-house Workshops
If a Facilitator cancels the booking, the Client may either request a full refund or reschedule to a new date with the same Facilitator at no additional cost.
If a Client cancels the booking, it is eligible for a full refund if such cancellation is received more than 14 days prior to In-house Workshop commencing.
If a Client cancels the booking less than 14 days before the training date, it is eligible for 50% refund or reschedule to a new date with the same Facilitator at no additional cost.
If a Client cancels within 72 hours of the original booking, it is not entitled to any refund and Essemy retains the discretion to charge an additional 20% rescheduling fee on a case by case basis.
Refund Policy for Public Workshop
If the Public Workshop does not proceed due to unavailability of minimum viable numbers or a Facilitator, Clients may request a full refund of the fees or credit to be used on the Essemy platform.
If a Client cancels the booking, it is eligible for a full refund if such cancellation is received more than 14 days prior to Public Workshop commencing.
If a Client cancels the booking less than 14 days before the training date, Clients will not be eligible for a refund, however may reschedule the Public Workshop for a future date at no additional charge.
If a reschedule of the original booking is made within 5 days of scheduled workshop, Essemy retains the right to charge a 20% rescheduling fee at its discretion. No refunds within this period.
Participant Name Change Policy
Clients may change participant names up to 24 hours prior to course commencement for both Public and In-house Workshops.
The Client may use its credit on Essemy platform at any time.
Taxes and Duties
The Client must pay any applicable tax law, GST that will be charged on all services advertised on the Essemy platform and will appear on the tax invoice.
Essemy reserves the right to suspend or cancel your registration as a Client, at any time, on Essemy forming the view in its absolute discretion that Essemy’s brand, operations (including the Site, any blogs or membership) or business (including its, partner’s or affiliate’s business) may be adversely affected or harmed as a result of your continued registration as a Client. Upon termination you must cease using the Site and Essemy Services. Such termination will not affect the validity of any bookings or contracts for Training Services that have been executed prior to termination and these Terms will continue to apply with respect to such bookings.
Unless otherwise agreed between the Facilitator and the Client, the Facilitator retains ownership of all intellectual property rights in the Facilitator Content.
Essemy is not responsible to any Facilitator for Client’s use of any intellectual property rights during or after provision of Training Services. Any agreements or disputes regarding intellectual property rights in Facilitator Content shall be between the Facilitator and the Client.
CONFIDENTIALITY AND NON-DISCLOSURE
Non-Disclosure: Subject to clause 7.2 above and any agreement between the Facilitator and you, you undertake not to use, redistribute, disseminate, publish, or display any written materials provided to you in connection with Training Services, or other Essemy Services in whole or in part, to any third parties without the prior written permission of the Facilitator (where applicable) and Essemy, except when required by law.
CONSENT TO USE LOGO
You consent to Essemy displaying your name and/or logo on the Site as a user of Essemy’s Training Services. You acknowledge that disclosure of your name and/or logo on the Site does not constitute disclosure of confidential information and you consent to our use of such content in the manner described above. If you do not consent to your logo being displayed you must advise Essemy by sending an email to email@example.com.
RESTRAINT OF TRADE
Where a Client and Facilitator have been introduced through Essemy, you must not enter into any form of engagement in which the Facilitator delivers any additional training services to the Client (whether individually or through a third party intermediary) or in any way other than through the Essemy Services.
These obligations apply for so long as the Facilitator or Client is registered with Essemy, and for 12 months from the time a Facilitator completes their most recent Training Service with a Client (the “Non-Solicitation Period“) regardless of any relationship or previous dealings between the parties. This means that during the Non-Solicitation Period, you must use the Essemy Services as your exclusive method to engage with each other unless Essemy agrees in writing otherwise.
LIABILITY OF ESSEMY
You are solely responsible for all decisions you make in connection with any services you choose to purchase as a Client.
Essemy will not be liable for:
the scope of the Training Services or any changes to the Training Services;
any deliverables, work, opinion or information provided by the Facilitator;
services not performed in accordance with these Terms;
any claims arising out of or in connection with these Terms, any of the subject matter of the Essemy’s Services, for breach of law, contract, negligence or any other liability whatsoever;
any other terms of engagement the Client and Facilitator might reach or agree;
any breach or alleged breach of another party’s intellectual property rights arising in respect of the services or these Terms;
any Posted Content created or uploaded to a profile and/or the Site; or
any direct, indirect, special or consequential losses or damages, loss of income, profits, goodwill, data, contracts, use of money or business interruption of any type arising in contract, tort (including, without limitation, negligence) or otherwise arising from your use of or your inability to use Training Services.
Essemy does not warrant that your use of the Site will be uninterrupted or error free, nor does Essemy warrant that we will review information for accuracy or that we will preserve or maintain the Client’s or Facilitator’s information without loss. To the extent permitted by law, Essemy shall not be liable for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications or other systems outside the reasonable control of Essemy.
INDEMNITY & WARRANTY
You agree to indemnify, defend and hold harmless, Essemy and its Related Bodies Corporate successors and assigns (and its and their officers, directors, employees, sublicensees, and agents) from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses which arise out of or relate to:
your improper use of the Training Services;
your breach of these Terms;
without limiting the foregoing, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you in connection with your use of the Training Services;
the use of any intellectual property created in respect of the Training Services; or
all claims, damages, liabilities, losses, settlements, costs in taxes, levies, charges, penalties and expenses arising from or in relation to the Training Services provided by Essemy pursuant to these Terms.
To the maximum extended permitted by law, our liability for breach of warranties relating to the subject matter of these terms is limited to, at our option:
the supply of the services again; or
the payment of fees paid for the supply of these services.
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.
This clause shall survive termination of these Terms.
Essemy will not provide any dispute assistance in relation to disputes arising between Facilitators and Clients.
Nothing in this paragraph limits the rights of any party to seek or obtain urgent interlocutory or interim relief.
Essemy may modify these Terms from time to time by posting the modification(s) or updating these terms and conditions on our website www.essemy.com.au. Unless otherwise specified by us when posted, all modifications will take immediate effect upon posting. If you do not agree to any modification(s), your only recourse will be to terminate your registration as a Client. If you continue to participate as a Client after any modification becomes effective, then your participation will constitute acceptance of such modification.
GOVERNING LAW AND JURISDICTION
These Terms shall be governed by and construed in accordance with the laws of the state of Western Australia, Australia. The parties agree to submit to the non-exclusive jurisdiction of the Courts of Western Australia.
The terms and conditions set out below (“Site Terms“), when read together with the Terms of Service above, govern your use of the www.essemy.com.au website and Site. By using the Site, you must accept and abide by the Site Terms. If you do not accept the Site Terms, you are not permitted to use the Site and you must refrain from using it.
The Site is owned and operated by Essemy Pty Ltd (ACN 164 920 674) (“Essemy”, “us” or “we”).
You must use the Site at all times in accordance with these Site Terms.
Notwithstanding anything else in these Site Terms, we may, in our absolute discretion, refuse you or any other person access to part or all of the Site at any time and for any reason.
Facilitators may request that 1 in 20 comments be removed from the public reviews that appear on their personal profile page on the Site. The Facilitators may provide these requests in writing to Essemy, which will be processed within 48 hours.
We will solicit your feedback to assist us in making improvements to the functioning of the Site. We may also send you emails about our services and opportunities or profiles that may be of interest to you. You may elect not to receive certain types of notifications from us.
LINKS TO OTHER SITES
The Site may contain links or portals to other websites (excluding any websites offering Special Projects or Training Services bookings). We have no control over websites operated by third parties and you agree that we are not responsible for, and will have no liability in connection with, your access to or use of any third party website.
A marketplace connecting buyers of learning and organisational development services to qualified experts ready to share their knowledge and expertise.