DEFINITIONS

"Business Day" means a calendar day Monday to Friday (not being a Saturday or Sunday);

"Client" means the organisation contracting with Empower Ed. Consultancy for the provision of consultancy services as identified in these Terms of service;

“Consult hours” means the hours of consultancy provided as part of the EMPOWER CONSULT service;

"Contract" means the contract formed by the acceptance and purchase of the EMPOWER CONSULT service by the Client, and such contract shall be governed by these Terms of Service

"Deliverables" means those items identified as such in the Terms of Engagement (if any) to be provided by Empower Ed. Consultancy to the Client in the course of delivering the Services;

"Empower ED" means Empower Ed. Consultancy ABN  82 627 175 757;

"Empower ED Terms" means the Empower Ed. Consultancy standard Terms of Service;

“Event” means any scheduled, course, webinar, web conference, or other service types as provided by Empower Ed. Consultancy;

“Product development proposal” means a proposal for the development of training and assessment materials for a training product;

"Services" means the work to be undertaken by Empower Ed. Consultancy for the Client as described in these Terms of Service;

"Terms of Service" means the entire agreement between the Client and Empower Ed. Consultancy, which outlines the nature of the Services, the deliverables to be provided, the fees payable and the timeframe for completion of the Services, together with any other terms specific to the engagement with the Client;

“Work” means any activity performed by Empower Ed. Consultancy in relation to the Services; 

"Working Days" means Monday to Friday excluding bank or public holidays.

1. THE SERVICES​

1.1. Empower ED will provide the Services to the Client on, and subject to these Empower ED Terms. 

1.2. Empower ED will not commence the provision of the Services until the Client accepts these terms and conditions and makes payment in accordance with the arrangements as stipulated in the Product development proposal.

1.3. Empower ED shall ensure that: 

1.3.1. services are performed with due care and skill

1.3.2. services are fit for a particular purpose; and

1.3.3. services are supplied within a reasonable time if no timeframe has been specified within the Product development proposal

1.4. In providing the Services, Empower ED shall use its reasonable endeavours to give sound advice based on the information available, but the Client will remain wholly responsible for determining matters of legislation, policy, or any action related to that advice. 

1.5. The Client acknowledges and agrees that, in order to derive benefits from the Services provided by Empower ED, the client must make available the personnel required to ensure timely access to relevant information and documentation.

1.6. Upon signing the ‘Product development proposal’ the Client agrees they have read and understood the terms and conditions associated with this service as set out in these  Empower ED Terms.

2. SERVICE FEES AND CHARGES

2.1. The Client shall pay the fees applicable to the services stipulated in accordance with the payment terms and fee schedule as provided in the Product development proposal.

2.2. The Client may be liable for additional fees and charges associated with Works carried out for the client. Where additional fees are anticipated Empower ED will endeavour to inform the Client of these as soon as practical.

3. SERVICE DELIVERY (EVENTS)

3.1. Consultations are delivered via a web conferencing service.

3.2. It is the responsibility of the client to ensure they have the necessary systems and technical hardware required to attend and participate in the consultation process

4. DISCLAIMER

4.1. Empower ED makes their services available on the understanding that Clients’ exercise their own skill and care with respect to their use.

4.2. Before relying on the material in any important matter, users should carefully evaluate the accuracy, completeness and relevance of the information for their purposes and should obtain appropriate professional advice relevant to their particular circumstances.

5. CANCELLATION AND POSTPONEMENT OF EVENTS

5.1. Unless otherwise specified in the Terms of Service, Empower ED reserves the right to charge for events (including but not limited to courses, workshops, webinars, web conferences, presentations or seminars) that are cancelled or postponed by the Client. 

5.2. Where an event is cancelled by the Client, the Client will forfeit any fees paid in advance for the event.

5.3. The Client may request to reschedule a booked event. Requests must be made at least 5 business days prior to the event time and date and are subject to the availability of alternative event time and date. If an alternative time and date are not available, the Event will be deemed to be cancelled and the client will forfeit any fees paid in advance for the event.

5.4. If the Client requests to reschedule within 5 business of the event time and date, the Client forfeits 100% of fees paid for the original event and is required to pay a full Empower Consult fee for rescheduling the event.

5.5. In addition, the Client will bear the full cost of any fees or expenses incurred by Empower ED for cancellation of venues and, except in cases where the Client has paid a 100% cancellation or postponement charge, for non-returnable goods and services bought or contracted for the event or events.

6. INTELLECTUAL PROPERTY

6.1. Empower ED and the ‘Client’ will retain ownership of their respective Intellectual Property Rights which existed before the commencement of this Agreement. 

6.2. Empower ED will not use resources created as part of this agreement for the financial benefit of Empower ED or make these available to existing or future clients..

6.3. Empower ED assigns to the ‘Client’  all Intellectual Property Rights produced or developed by Empower ED in relation to or as a result of the provision of the Services, effective immediately on the creation of any such Intellectual Property Rights.

6.4. Empower ED will do all things necessary to obtain all Intellectual Property Rights referred to in subclause 6.2 above including, where necessary, obtaining an assignment of rights from any employees, agents or contractors of Empower ED.

6.5. Empower ED warrants that:

6.5.1. it has or will have all rights necessary to make the assignment referred to in subclause 6.2 above; and

6.5.2. the items, documents and material produced in the course of providing the Services will not infringe the Intellectual Property Rights of any person.

6.6. Empower ED must not use any trademarks of the ‘Client’ or its Related Bodies Corporate for any purpose without the prior written consent of the ‘Client’ and any use is subject to any conditions the ‘Client’ may impose.

6.7. Empower ED agrees that in the course of providing the Services, it will not do any act or thing which may infringe any Intellectual Property Rights of the ‘Client’ or any third party.

6.8. Where the Client requires Empower ED to incorporate any material into the Work and supplies Empower ED with such material, the Client warrants that: 

6.8.1. the proposed use or incorporation of such material will not infringe any third party's intellectual property rights; and

6.8.2. where the Client is not the owner of all copyright or other intellectual property rights in such material, the Client has received all necessary consents and licences for the proposed use by Empower ED of such material; and the Client will indemnify and keep Empower ED fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of any nature arising out of or in connection with any breach of the warranty in this clause.

7. CLIENT'S OBLIGATIONS

7.1. The Client will ensure that its staff, contractors and other suppliers cooperate fully with Empower ED Consultants and cause no delay.

7.2. Whilst Empower ED employees or subcontractors are working on the Client's premises, the Client will ensure the health and safety of those people. The Client will indemnify Empower ED and keep Empower ED indemnified against all losses, damages, and expenses incurred or suffered by Empower ED in connection with any and all claims made in respect of any injury, death or loss suffered by those employees or subcontractors as a result of working at the Client's premises.

7.3. The Client will not, either during the provision of the Services or thereafter for a period of one year, directly or indirectly, offer employment or assignments to any of Empower ED employees or subcontractors or solicit or procure their employment by any other company, organisation or individual with which the Client is connected.

8. CONFIDENTIALITY

8.1. Empower ED agrees that any information received by it during the provision of services relating to the client including the client's operational or commercial affairs shall be treated by Empower ED in strict confidence and will not be revealed to any other persons or organisation unless compelled to do so under the law.

8.2. Empower ED may be compelled under legislation, namely; s62 of the National Vocational Education and Training Regulator Act 2011 (Cth) to provide information to the National VET Regulator about an RTO to which it provides a service by issuing a written notice to Empower ED to give information and documents. It is an offence under s64 of the National Vocational Education and Training Regulator Act 2011 to not provide information and documents when requested to do so.

9. DATA PROTECTION AND PRIVACY

9.1. Empower ED is committed to protecting and respecting the Client’s and other users’ privacy and to acting in compliance with local and international data protection regulations including; GDPR (the General Data Protection Regulation (EU) 2016/ 679) and any applicable enacting, successor or amending legislation. You should read our Data Protection Statement in our Privacy Policy as they will help you understand how we collect, use, store, and otherwise process your personal data and other information.

9.2. The Client agrees to be bound by the Data Protection Terms unless otherwise agreed in writing between Empower ED and the Client.

10. TERM AND TERMINATION OF SERVICE BY CLIENT

10.1. The Contract will commence on the date that the Client agrees to these Terms of Service and makes the payment for services via Electronic Funds Transfer or the relevant online payment process, and shall continue in full force and effect until the client terminates the service pursuant to Clauses 11.2, 11.3 and 11.4.

10.2. The client may terminate the provision of the Services at any time by notice in writing to Empower ED.

10.3. The client acknowledges and agrees that in the event the Client terminates the service pursuant to Clause 10.2 they:

10.3.1. forfeit any unused consult hours, and 

10.3.2. are not eligible for a refund of fees paid.

10.4. On termination, Empower ED will be entitled to be paid all fees and expenses incurred or accrued and payable by the Client as at the date of termination or cancellation of the Services. 

10.5. On termination, each party shall immediately return to the other party all property of the other party in its custody, possession or control.

Clauses 4, 5, 6, 7.3, 8, 9, 10, 11, and 15 shall survive expiry or termination of these Terms howsoever caused and shall remain thereafter in full force and effect after termination.

11. TERMINATION OF SERVICE BY EMPOWER ED

11.1.  Empower ED reserves the right to refuse, cancel, or cease the service for any reason we deem appropriate. The following are some examples of why we may refuse, cancel, or cease the service:

11.1.1. Rude, offensive, or abusive behaviour toward Empower ED staff by you or any representative from your organisation, will not be tolerated and will result in immediate cancellation of the service.

11.1.2. Breach or failure to comply with these terms and conditions or any other terms and conditions of related products and services will result in immediate cancellation of services.

12. WARRANTY AND LIABILITY

12.1. Nothing in these Terms shall exclude or limit Empower ED’s liability for death or personal injury caused by Empower ED’s negligence, nor for fraud on Empower ED’s part, nor for any liability that cannot be excluded by law.

12.2. Subject to Clauses 10.1, 10.2 and 10.4, Empower ED’s liability arising under or as a result of the provision of the Services whether in contract, tort, breach of statutory duty or otherwise is limited to the fees actually paid by the Client to Empower ED for such Services.

12.3. Empower ED will not be liable for any indirect or consequential loss, loss of business, profit, revenue, data or goodwill, nor for lost or wasted management time or employee time of the Client.

12.4. Any condition, representation or warranty that might otherwise be implied or incorporated within these Terms by reason of statute or common law or otherwise is hereby expressly excluded.

12.5. Waiver of Liability; By accessing Empower ED services, the Client waives and releases Empower ED to the full extent permitted by law from any and all claims relating to the usage of the product or the provision of advice and under no circumstances whatsoever shall Empower ED be deemed to assume any responsibility for or obligation or duty with respect to any part or all of the Client’s business.

13. FORCE MAJEURE

Empower ED has no liability to the Client if Empower ED is unable to provide all or a part of the Services in accordance with the Terms of Service or otherwise as a result of circumstances beyond Empower ED’s reasonable control, including without limitation, war, strike, lockout, industrial disputes, riot, civil commotion, acts of Government, fire, blockade, accident, natural catastrophe, disaster.

14. WAIVER

No delay, neglect or forbearance by either party in enforcing any provision of these Terms of Service shall be deemed to be a waiver or in any way prejudice any rights of that party.

15. RIGHTS OF THIRD PARTIES

Nothing in these Terms or the Terms of Engagement confers or purports to confer on any third party any right to enforce any of the Terms of Engagement or these Terms.

16. GOVERNING LAW AND JURISDICTION

These Terms of Service are governed by and construed in accordance with the laws of New South Wales and are subject to the exclusive jurisdiction of the courts of New South Wales.

17. ENTIRE AGREEMENT

17.1. These Terms of Service constitute the entire agreement between Empower ED and the Client in relation to the Services and supersede all earlier communications. Each party acknowledges that it has not relied on any commitment, representation, or warranty in entering into the Contract, other than those expressly set out in the Contract. No amendment or other variation to these Terms by the Client will be effective unless it is in writing, is dated, and is signed by a duly authorised representative of Empower ED and the Client.

17.2. Empower ED reserves the right to change these Terms at any time without prior notice to the Client, so please check them regularly. These Terms were revised in January 2020.

18. NOTICES

18.1. Any notice permitted or required under these Terms will be given in writing and shall be effectively served if delivered by hand or sent by first-class or airmail post to Empower ED at its usual address and, in the case of the Client, to the last known or usual address. Any notice personally delivered shall be deemed to have been received at the time of delivery. Any notice sent by post shall be deemed to have been delivered three Business Days after posting in the case of interstate communications, or five Business Days otherwise.

18.2. In cases where the Terms of Service specify nominated representatives of the parties, all notices shall be addressed to such representatives.

19. ACKNOWLEDGMENT OF TERMS AND CONDITIONS

By signing the Empower ED Product development proposal and/or making payment for Empower ED services you acknowledge that you as the Client understand and agree to these Terms and Conditions. These Terms and Conditions should be read in conjunction with other related Terms and Conditions. Acknowledgment of these Terms and Conditions implies acknowledgment of all related Terms and Conditions.

20. FURTHER INFORMATION

If you wish to raise any query, please contact educate@empower-ed.com.au or call our Client Services on +614 3884 2224

Updated – 10 April 2024

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