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Terms and Conditions

Effective date: 14 September 2019

1. Scope

1.1.  This document defines the Terms & Conditions pertaining to work which has been ordered by a Client from Elemental Projects (Australia) Pty Ltd (ABN 86 629 413 903).

1.2.  Such work may be ordered by way of a duly authorised Purchase Order, Contract, Agreement, Enrolments received, Acceptance of Proposal, or similar, to which this document is attached, and which is referred to within this document as "the Order".

1.3.  References within this document to "the Agreement" shall be interpreted to include both the Order and these Term & Conditions.

2. Confidentiality

2.1.  EP recognises that during the course of work, it will have access to confidential Client information. EP agrees that such information shall be protected, and not be provided to any other party without Client permission, nor used in any way contrary to the interests of the Client.

2.2.  All EP employees and sub-contractors are required to agree to respect Client confidentiality.

2.3.  Any information and/or documentation belonging to a candidate or their employer and provided to an EP assessor for the purposes of obtaining a nationally recognised qualification will be treated as confidential and will not be shared with any third party without prior written consent from the candidate or an approved representative from their organisation, with the exception of other EP assessors and quality assurance personnel, and the Registered Training Organisation with which the candidate is enrolled. Once the candidate completes the assessment process, all submitted evidence (including work based documentation) will be transferred to the RTO’s server for storage for seven years, where it may be viewed by ASQA, the regulating body, in the process of a random audit.

3. Renegotiation

3.1.  If the Client requests EP to alter the scope of work subsequent to the commencement date, EP may agree subject to conditions including:

3.2.  Provision by the Client of written detailed particulars of the proposed alteration; and

3.3.  Agreement by the Client to such additional charges as EP requests in respect of such alteration.

3.4.  If, within 30 days of the request to alter specifications, EP declines to agree to the alterations, or the Client does not accept the conditions proposed by EP, the Client may withdraw its request for alteration.

3.5.  If the Client does not accept the conditions proposed by EP, but does not withdraw its request for alterations, EP may terminate the Agreement on giving 30 days’ notice.

3.6.  EP may notify the Client, in writing, of a variation in the charges payable under the Agreement at any time.

3.7.  If, within 30 days of the notification, the Client does not agree in writing to the variation, EP may Terminate the Agreement with 30 days’ written notice.

4. Payment

4.1.  Invoices issued by EP shall be payable within 30 days of the invoice date.

4.2.  For in-house courses, fees will be charged 50% on booking, and 50% on completion of each event.

4.3.  For in-house Diploma programs, fees will be charged 100% on enrolment or as otherwise specified in the relevant quote, proposal, or tender response from EP.

4.4.  Public Diploma students have the option to pay 30% of the course fee on registration, with the remainder due 30 days after course commencement. If the student withdraws from the course before submitting their first assessment, then the second payment will be waived. If a student fails the eligibility criteria for the Diploma, then any fees paid will be refunded in full within 30 days.

4.5.  EP may require the Client to pay interest on overdue amounts at a rate of 12 per cent per annum from the due date until the date of payment.

5. Cancellation Fees

5.1.  The fee charged for cancelling or postponing a booked in-house course depends on the amount of notice provided, as follows:

   5.1.1.  More than one month prior to the commencement date = 50% of the training delivery fee (i.e. the first 50% charged on booking)

   5.1.2.  Less than one month before the commencement date = 75% of the training delivery fee

5.2 For public Diplomas:

   5.2.1  Cancellation prior to course commencement will incur a $1000 cancellation fee. Any fees collected in excess of this amount will be refunded within 30 days.

   5.2.2  Postponing to a later cohort is permitted up to 30 days prior to course commencement at no charge, subject to availability on the later course.

   5.2.3  Fees are non-refundable if a student withdraws on or after the course commencement date.

6. Termination

6.1.  EP may terminate the Agreement immediately if: any payment is not received by the payable date.

6.2.  EP may terminate the Agreement with 30 days’ written notice if:

a)  in its opinion, it would be detrimental to EP commercial interests to continue the agreement.

b)  the ownership of the client is changed.

6.3.  Either party may terminate the Agreement immediately if:

a)  the other party breaches the terms of the Agreement and the breach is not rectified within 7 days of written notice;

b)  the other party is wound up provisionally or finally or becomes liable to be wound up, or a controller (as defined in the Corporations Law) is appointed in respect of any part of its property.

6.4.  If the Agreement is terminated pursuant to the previous clauses, EP shall:

a)  retain any monies paid; and

b)  invoice the Client for any work done or costs accrued but not yet invoiced; and

c)  repossess any of its property, or its employees' property, in the possession of the Client; and

d)  be discharged from any further obligations under the Agreement; and

e)  pursue any additional or alternative remedies provided by law.

7. Liability

7.1.  Save for any statutory liability which cannot be avoided under legislation, EP shall not be under any liability to the Client or its clients. The Client shall indemnify EP against liability under any final judgement in proceedings brought by any third party against the Client, or against EP in respect of it's work with the Client.

7.2.  The Client is solely responsible for any use of the products of the Agreement, or any action taken by EP in reasonable pursuit of its obligations under the agreement, and therefore the Client is solely liable for all loss or damages, including consequential loss or damage which may arise directly or indirectly in connection with action or inaction of EP or use of the products of the Agreement, by the Client, or its clients or employees.

7.3.  EP represents and warrants that the services will be rendered with due care and skill, and that any materials supplied in connection with those Services will be reasonably fit for the purpose for which they are supplied.

7.4.  The Client warrants that it has not relied on any representation made by EP which has not been stated expressly in the Agreement, nor upon any descriptions, illustrations, or specifications contained in any document, including any produced by EP, the Client, or any other party.

7.5.  This entire clause (Liability) shall survive after termination of work under any provision.

8. Employees

8.1.  Neither party will approach the staff of the other party for the purpose of employment during the term of the Agreement, nor for a period of twelve months from the date of termination of the Agreement.

9. Intellectual Property, Title, & Use

9.2.  All IP contained in EP website, marketing material, courseware, simulations, video content, coaching resources, and assessment frameworks will remain the property of EP. This extends to any elements within a customised version of courseware, videoware or simulation resources. 

9.3.  All IP created by an Elemental Projects employee or sub-contractor during a consulting engagement (work product) will remain the property of the Client Organisation.

10. Force Majeur

10.1.  EP shall not be liable for any delay or failure to perform any of its obligations under this contract if such failure or delay is directly or indirectly due to force majeur.

10.2.  EP shall notify the Client of any delay or failure to perform due to force majeur. EP obligations under the Agreement shall be suspended for the period of the delay due to force majeur.

10.3.  Force majeur includes any act, omission, or circumstance over which EP could not reasonably have exercised control.

10.4.  EP must use reasonable efforts to avoid or remove the cause of force majeur but shall not be obliged to settle any industrial dispute against its will.

11. Governing Law

11.1. The Agreement will be governed by and construed according to the law of the State of New South Wales, and each party submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.

12. Assignment

12.1. The benefit of the Agreement shall not be assigned or otherwise disposed or dealt with in any way by the Client without the written consent of EP.

13. Sub-Contract

13.1.  EP may sub-contract for the performance of the Agreement or any part thereof, and provided any such sub-contractor enters into an agreement to protect the confidentiality of any information confidential to the Client.

14. Waiver

14.1. No right under the Agreement shall be deemed to be waived except by notice in writing signed by the waiving party.

14.2. Any failure by either party to enforce any provision of the Agreement, or any forbearance, delay or indulgence granted by a party to the other, will not be construed as a waiver of that party's rights under the Agreement.

14.3. Any waiver by a party of a specific breach of the Agreement will not prejudice its rights in respect of subsequent breach of the Agreement, whether of the same or different nature.

15. Entire Agreement

15.1. Where there is any contradiction, the terms of the Order shall take precedence over the Terms & Conditions expressed in this document.

15.2. No modification or alteration of the Agreement will be valid except in writing signed by each party.

16. Headings

16.1. Headings are inserted for convenience and do not affect the interpretation of the Agreement.

17. Severability

17.1. If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain in full force apart from such provision which shall be deemed deleted.

18. Disputes

18.1. Any dispute arising in connection with the Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations fdfda the time being of the Institute of Arbitrators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.

19. Notices

19.1. Any notice given under the Agreement must be in writing and may be sent by registered mail, by hand, or by e-mail. A notice is effective when first received by the addressee at the addressee's nominated address.

20. Supplier's Right

20.1. Any express statement of a right of EP as a supplier of services under the Agreement is without prejudice to any other right of EP expressly stated in the Agreement or arising at law.

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