Essential Executive Terms and Conditions

1.1. Agreement means these terms & conditions and the Letter of Engagement.

1.2. Essential Executive means Essential Executive ABN 76523242681.

1.3. Client is the party identified in the Letter of Engagement as the recipient of the Services that has accepted the Letter of Engagement.

1.4. Confidential Information is defined in clause 8.

1.5. GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.6. Letter of Engagement means the document referencing these terms & conditions, setting out the scope of the Services, the fees against which the Services are performed, and any other matters the parties may agree.

1.7. Services means the consultancy services provided by Essential Executive to the Client pursuant to this Agreement, and as further set out in in the Letter of Engagement.

2.1. Defined terms used in a singular form include the plural form and vice versa.

2.2. Where reference is made to a specific gender, other genders are included.

2.3. Reference to a “day”, “month”, “quarter”, or “year” is a reference to a calendar day, calendar month, a calendar quarter, and a calendar year.

2.4. To the extent of a discrepancy, inconsistency, or contradiction between the documents comprising this Agreement, the following order of precedence applies: (1) the Letter of Engagement, and (2) these terms and conditions.

3.1. Essential Executive will provide the Services to the Client in accordance with these terms and conditions and the Letter of Engagement.

3.2. The scope and nature of the Services are limited to those set out in the Letter of Engagement and may only be varied by the parties in writing.

3.3. Each Letter of Engagement constitutes a separate agreement between Essential Executive and the Client.

3.4. Essential Executive is an independent contractor. Nothing in this Agreement shall be construed so as to create an employment relationship between the parties.

3.5. Nothing in this Agreement shall be construed so as to create an exclusive relationship between the parties. Essential Executive remains free at all times to provide services similar to those provided under this Agreement to any other party.

4.1. In consideration of the Services provided hereunder, the Client must pay the fees and expenses set out in the Letter of Engagement.

4.2. Essential Executive will issue an invoice to the Client once per week, or as otherwise agreed in the Letter of Engagement.

4.3. The Client must pay the amounts set out in an invoice within 7 days of the date of the invoice, or as otherwise agreed in the Letter of Engagement.

4.4. The Client must pay interest at the rate of 2% per month on all invoices unpaid at the due date, in addition to all reasonable costs of collection (including legal fees, if any), from the date upon which the invoice should have been paid until the date upon which Essential Executive receives payment of the invoice.

5.1. All amounts are in Australian dollars.

5.2. All amounts are exclusive of GST unless otherwise indicated in the Letter of Engagement.

6.1. Essential Executive warrants that the Services will be performed with due care and skill.

6.2. Subject to clause 6.3, Essential Executive excludes all other warranties and representations, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.

6.3. Nothing in this Agreement excludes or limits the Client’s rights or remedies to the extent that such rights and remedies cannot be excluded or limited under applicable law (including the Competition and Consumer Act 2010 (Cth)).

7.1. Essential Executive (or its licensors, as the case may be) retain(s) ownership of all materials provided to the Client that were developed prior to or independently of this Agreement. Subject to the foregoing, all tangible materials that are created specifically by Essential Executive for the Client in the course of performing the Services are owned by the Client.

7.2. Notwithstanding clause 7.1 and subject to clause 8 (Confidentiality), Essential Executive owns and retains all rights in the ideas, concepts, improvements, methodologies, templates, techniques, and know-how that are used, created, or improved by Essential Executive in the course of performing the Services.

7.3. The Client grants Essential Executive the right to use, publish, and reference, at no charge, the Client’s name, logo, and trademarks for promotional purposes, such as social media posts, blogs, and customer reference stories, on any media worldwide, including the Essential Executive website.

7.4. Except as expressly provided in this Agreement or otherwise agreed to by the parties, no rights or licenses are granted to any intellectual property rights of any party to the other party.

8.1. “Confidential Information” is information related to a party’s business that at the time of disclosure is either identified as being, or can reasonably be ascertained to be, of a confidential or commercially sensitive nature. Confidential Information does not include information that: (a) was or becomes in the possession of the receiving party without an obligation of confidentiality at the time the information was received; (b) is independently developed without reference to Confidential Information from the other party; or (c) is or becomes publicly available (without breaching an obligation of confidentiality).

8.2. Each party must, during the term of this Agreement and for 5 years after its termination, protect Confidential Information received from the other party with the same degree of care it uses to protect its own confidential information (but in no event less than a reasonable degree of care).

8.3. Each party may disclose Confidential Information to its professional advisors, auditors, and other consultants and contractors, to the extent necessary to comply with obligations ensuing from his Agreement, and provided that appropriate confidential disclosure arrangements are in place with such third parties.

8.4. Each party may disclose Confidential Information that must be disclosed pursuant to and in accordance with a judicial or administrative order or as otherwise required by applicable law. Each party must use its reasonable efforts to provide the disclosing party with prompt notice and information so as to enable the disclosing party to limit the disclosure and use of the Confidential Information.

9.1. To the extent permitted by law (including under the Competition and Consumer Act 2010 (Cth)), Essential Executive maximum liability arising out of or in connection with this Agreement shall not exceed an amount equal to the fees paid by the Client for the Services performed under the Letter of Engagement giving rise to the claim.

9.2. To the extent permitted by law (including under the Competition and Consumer Act 2010 (Cth)), Essential Executive is not liable for indirect, incidental, consequential, or punitive damages, including without limitation, claims for lost profit, business interruption, or loss of data, whether or not Essential Executive was advised of the possibility of such damages.

9.3. Nothing in this Agreement excludes or limits the liability of either party that cannot be excluded or limited by applicable law (including under the Competition and Consumer Act 2010 (Cth)).

9.4. The Client must use its reasonable efforts to mitigate any loss, damage, or expense, arising out of or in connection with this Agreement. Essential Executive’s liability will be reduced proportionately to the extent that the Client has contributed to or failed to mitigate its loss, damage, or expense.

10.1. The term of this Agreement starts upon receipt by Essential Executive of a duly signed Letter of Engagement, and will continue for the duration set out in the Letter of Engagement, or until this Agreement is terminated earlier as per the terms of this Agreement.

10.2. Either party may terminate this Agreement and the Letter of Engagement for any reason (or no reason) with 14 days written notice.

10.3. Essential Executive may terminate this Agreement and the Letter of Engagement immediately if the Client has not paid an invoice that is more than 30 days overdue.

10.4. Termination of this Agreement or a Letter of Engagement will not affect the Client’s obligation to pay for any Services rendered prior to the effective date of termination of the Agreement or a Letter of Engagement.

10.5. Clauses 1, 2, 4, 5, 7, 8, 9, 11, 12, 13, 14, and 15 survive termination of this Agreement.

11.1. Unless otherwise agreed or set out in this Agreement, all notices must be provided in writing and must be delivered in person, by courier, registered mail, or email.

11.2. Notices are deemed to be delivered upon the date the notice is delivered in person, by courier, or by registered mail.

11.3. If a notice is sent by email, the notice is deemed to be delivered: (a) when the sender receives an automated message confirming delivery; or (b) twelve hours after the time the email is sent (as recorded on the device from which the email was sent) unless the sender receives an automated message that the email was not delivered; whichever occurs first.

12.1. This Agreement comprises the complete understanding between the parties, and supersedes all prior and contemporaneous proposals, agreements, understandings, representations, and communications, made in relation thereto. Any changes to this Agreement must be agreed to in writing.

13.1. A party’s failure to require performance or exercise a right under this Agreement does not affect its right to do so at a later time.

14.1. If a provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, the other provisions shall remain in full force and effect, and the unenforceable provision will be modified so as to render it enforceable in accordance with the original intent of the parties to the furthest extent possible.

15.1. This Agreement is governed by the laws of the State of Victoria.