PROGRAM TERMS AND CONDITIONS
The website accessible at www.theevpco.com (Website) and its related Programs, Program Content, sub-domains (including clientportal.theevpco.com) and related services such as coaching services (Services) are owned and operated by Brand MK Pty Ltd ACN 634 397 309 trading as The EVP Co (The EVP Co, our, us, we).
Before purchasing access to the Program, you must read these Program Terms and Conditions (Terms) and all other policies. These Terms, together with any additional terms set out on the Website or in a Proposal provided to you, set out the terms on which The EVP Co agrees to provide the Services to you, and forms a binding contractual agreement between you, the person purchasing and accessing the Services, and us.
These Terms may be updated by us from time to time, and the updated Terms will apply from the date they are published on the Website or otherwise provided to you.
These Terms constitute the entire and only agreement between you and us and supersede all prior agreements, conduct, representations and understandings.
The EVP Co’s Services are intended for people who can form legally binding contracts. If you do not qualify, please do not use our Services.
1. In these Terms, unless inconsistent with the context or subject matter:
a) “Account” means your account to use our Services;
b) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
c) “Client” means the person or entity described as the Client in the Proposal or whose details were entered on the Website at the time of purchase of the Program;
d) “Coaching Fees” means the fees payable for Coaching Sessions, which are as set out on the Website or a Proposal from time to time at the time you purchase the Coaching Sessions;
e) “Coaching Sessions” means the add-on coaching sessions we offer;
f) “Confidential Information” means all information (in any form):
1. relating to or arising from the Services;
2. Program Content;
3. that concerns our business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
4. including the Intellectual Property;
g) “Fees” means the Program Fees and the Coaching Fees, and any other fees or amounts payable by you to us under these Terms;
h) “Intellectual Property” means Intellectual Property Rights, including patents, copyright, trademarks, any right to have Confidential Information kept confidential and any application or right to apply for registration of any of these rights, and includes the following:
1. the Program Content;
2. the Website; and
3. any other material relating to the Services or otherwise provided by us to you;
i) “Intellectual Property Rights” means all present and future rights conferred by law in or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
1. all rights in all applications to register those rights;
2. all renewals and extensions of those rights; and
3. all rights in the nature of those rights, such as moral rights;
j) “Loss” means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
k) “Program” means “The EVP Project” program, as described on the Website or otherwise described in a Proposal;
l) “Program Content” means all materials made available to you in connection with any Program, including any videos, blueprints, templates, guides and workbooks, including all Intellectual Property Rights subsisting in such materials;
m) “Program Fees” means the fees for the Program and any other Services, as set out on the Website or a Proposal from time to time at the time you purchase access to the Program;
n) “Proposal” means any invoice provided by us to you in respect of the Program (including by email); and
o) “you” and “your” means the Client.
2. The EVP Co agrees to provide you with the Program in accordance with these Terms.
3. All Program places are subject to availability. In the event of a pricing or technical error, we reserve the right to cancel your place in the Program on providing you with written notice (in which case we will refund all Program Fees paid).
4. To access and use the Program, you may need to register with us and set up an Account with your email address and a password. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities that happen under your Account, even if you do not authorise such activities. You must not share your Account details with anyone, including others within your organisation. If you require additional licences to access the Program, you can purchase these additional licenses through the Website or by contacting us. Please note that this is only applies where you have already purchased The EVP Project.
ACCESS TO PROGRAM CONTENT
6. When you purchase a Program (or an additional licence to access a Program) from us you are getting from us a licence to access the Program Content in the manner specified by us. You acknowledge that as part of a Program, you will gain access to Program Content. Such access is granted in accordance with the terms of these Terms.
7. Subject to you fulfilling your obligations under these Terms, we grant you a personal, non-exclusive, non-assignable, non-sublicensable nor transferable licence to access and use the Program and Program Content, solely for the purpose of obtaining the benefit of a Program for its intended purpose. This licence will continue until the earlier of the date that (Expiry Date):
a) your access to the Program is terminated due to your breach of these Terms; or
b) is 16 weeks following the date of your program kickoff call.
8. Following the Expiry Date, you must immediately cease to use the Program and the Program Content.
9. We reserve the right to change the Program Content at our discretion without notice. We are not obliged to update the Program Content at any time, or give you access to any updated Program Content.
10. You must not without our prior written consent (which we may withhold in our discretion):
a) sub-licence, assign or novate the benefit or burden of the licence granted hereunder in whole or part; or
b) resell, copy, reproduce, distribute, adapt, alter, modify, translate, publish, share, create derivate works, or publicly display any of the Program Content or Intellectual Property anywhere in the world, (including by sharing your Account details so that others may get access to the Program Content).
11. You must ensure that any of your employees, contractors or agents (Staff) that have access to Our Content or participate in any way with the Services (whether directly or indirectly) are bound by an agreement which contains provisions at least as protective of our confidential information and intellectual property as contained in this Agreement.
12. You are solely responsible for ensuring that your Staff comply with the provisions of this Agreement (particularly in relation to confidential information and intellectual property), and a breach by any of your Staff of an obligation imposed on you under this Agreement, will be deemed to be a breach by you. Any licence granted to your Staff is solely only while they are a member of your Staff. Upon their cessation, their licence immediately ceases.
13. Each Coaching Session will be scheduled at the time mutually agreed by the parties (or failing agreement, at the time determined by us) and each session will last for 60 minutes. Coaching Sessions are designed for you to ask questions, bounce ideas, and for us to discuss and workshop issues and challenges.
14. You must attend each Coaching Session at the scheduled time.
15. Our rescheduling policy allows changes to be made to Coaching Session provided that you have notified us at least 48 hours before the Coaching Session. This means that you can cancel a Coaching Session within at least 48 hours and still reschedule the Coaching Session. If you reschedule a Coaching Session within 48 hours, this will incur a rescheduling fee at an hourly rate of $495 plus GST.
16. All changes to Coaching Sessions are subject to our approval and subject to availability.
17. If you fail to attend a Coaching Session, including one which you have rearranged, or you have cancelled a Coaching Session within less than 48 hours’ notice, without our approval, that Coaching Session will be forfeited and no refund or replacement Coaching Session will be provided.
18. The EVP Co reserves the right to reschedule Coaching Sessions at any time where necessary. Although we will make every effort to accommodate you at your preferred time, please note this may not be possible. We will attempt to provide you with advance notice should your Coaching Session need to be rescheduled.
19. Please note that from time to time we will be unavailable to provide Coaching Sessions, such as during holiday periods and during such other times that we notify to you. You acknowledge and agree that at times the Coaching Sessions will be unavailable, and if you have paid for a Coaching Session we will arrange a time to provide the Coaching Session to you once our unavailability ends. You are not entitled to a refund for Coaching Sessions in the event that we are unavailable to provide them at your preferred time.
20. During the provision of Coaching Sessions you must:
a) attend all Coaching Sessions on time;
b) designate an agreed project lead who will be the single point of contact for The EVP Co and will attend such Coaching Sessions;
c) complete all activities in the execution plan within the designated timeframe(s);
d) submit agreed documentation for review at least 48 business hours prior to the next Coaching Sessions;
e) be responsible for your own results, which includes proactively asking for support, complying with reasonable directions, and using your program benefits (including templates and guides); and
f) honour the relationship between you and us, by being direct, truthful and open so we can work together.
21. You agree that you are responsible for all execution activities including but not limited to scheduling and conducting research, data analysis, project management, resourcing and leading your internal or extended external project team including copywriters, report writing, liaising with and presenting to your internal stakeholders.
22. You are responsible for completing all activities required in respect of the Coaching Sessions and obtaining any approvals and sign offs from your stakeholders in a timely manner throughout the Coaching Sessions in order for you to keep progressing throughout the Coaching Sessions and to complete the Coaching Sessions.
23. In consideration of us providing the Services to you, you agree to pay us the Fees and any other charges for the Services in accordance with these terms.
24. The Fees must be paid upfront at the time and in the manner specified on the Website or in a Proposal, or if no time is specified then within 14 days from the date that these Terms become binding on you. We reserve the right to not provide you with access to the Services until full payment is made.
25. All Fees are in the currency stated on your invoice. Please note that we may impose or deduct foreign currency processing costs on or from any payments or payouts made in currencies other than Australian dollars.
26. All Fees are exclusive of GST (as that word is defined under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (unless otherwise indicated) and you must pay us the GST on all Fees at the time you purchase the Services. If you are outside of Australia, then no GST will be charged.
27. Payment of all Fees must be made without set-off or counterclaim.
28. If we offer a promotion, discount or bonus offer in connection with the Services (Promotion), such Promotion may be subject to additional terms as notified by us to you on the Website, in a Proposal or otherwise. Please carefully review those additional terms as by accessing a Promotion you agree to those additional terms.
29. Where applicable, the period during which any Promotion is valid for use will be as stated in the additional terms for that promotion.
30. Please note that from time to time we will be unavailable to provide certain Promotions (for example, a bonus live call), such as during holiday periods and during such other times that we notify to you. You acknowledge and agree that at times we will be unavailable, and if you are entitled to a Promotion which is affected by our unavailability then we will arrange a time to provide that Promotion to you once our unavailability ends. The time will be as notified by us to you and it is your responsibility to ensure that you are available at that time. You are not entitled to a refund of any Fees in the event that we are unavailable to provide the relevant Promotion at your preferred time, or if you are unable to attend that the time scheduled by us.
31. You acknowledge and agree that we may provide the Services to you through a number of different personnel and subcontractors if necessary. Unfortunately, due to the nature of work, there may be occasions beyond our reasonable control (such as illness) where specific personnel may be unavailable to provide the Services (including Coaching Sessions). Where it is necessary for us to substitute the personnel providing the Services, we will provide you with notice as soon as we become aware of such requirement. Where we are unable to find a suitable substitute we reserve the right to postpone or cancel the Services in accordance with the terms of these Terms.
PERSONNEL AND SUBCONTRACTING
32. The EVP Co provides support, guidance and tools to assist you in branding and marketing, but any decisions you make, and the consequences that flow from such decisions, is your sole responsibility.
33. Nothing in any of the Program Content or Services is a promise or guarantee of any results. Any information given is purely based on experience and is for illustrative purposes only. Information provided may not always be tailored specifically or to your business specifically. You understand that because of the nature of the program and extent, the results experienced by each client may significantly vary. The EVP Co cannot and does not make any guarantees about your ability to get results with our ideas, information, tools, or strategies. You acknowledge that there is an inherent risk in any business enterprise or activity and agree there is no guarantee that you will achieve any results as part of your purchase of, or participation in, our Services.
34. Any testimonials and examples within our marketing materials are not to be taken as a guarantee that you will achieve the same or similar results.
35. You acknowledge and agree that The EVP Co, its directors, principals, employees and representatives are not responsible for decisions that you may make nor Losses that may arise out of any business decision made by you at any time. Just to be clear, you are solely responsible for any actions you do or do not take directly or indirectly in connection with the Services. You are 100% responsible for your progress and results from the Services.
36. You acknowledge and agree that use of the Services is solely at your own risk. We provide our Services on an “as-is” and “as available” basis and whilst every effort is taken to ensure Program Content is accurate, we make no representations and give no guarantees or warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of Program Content for any purpose. Subject to the other terms of this clause and to the maximum extent permitted by any applicable laws, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms.
Our Confidential Information
37. We respect your confidential and proprietary information, ideas, plans and trade secrets (collectively, Confidential Information) and by using our Services, you agree to respect the same rights of the other The EVP Co Services participants (Participants) and the rights of The EVP Co and its representatives.
38. You agree:
a) that any Confidential Information shared by Participants or any of our representatives is confidential and proprietary and belongs solely and exclusively to the Participant who discloses it or to us;
b) not to disclose such information to any other person or use it in any manner other than in discussion with Participants during group sessions;
39.While you are free to discuss your personal results from our Services, you must keep the experience and statements, oral or written, of the Participants in the strictest of confidence.
40. Other than where:
a) use of the Confidential Information is required for the purpose of complying with a party’s obligations under these Terms;
b) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
c) expressly agreed by us in writing; or
d) required by law;
you must at all times:
e) treat and keep the Confidential Information confidential;
f) not use, or allow the use, of the Confidential Information by any third party; and
g) not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party. This includes information, methods or material delivered as part of the Services, or any information concerning the nature of the Services.
41. Without limiting the generality of the above clause, you must:
a) only use the Confidential Information in connection with your use of the Services for their intended purpose;
b) not reproduce or record or make any notes of any Confidential Information except as permitted;
c) not develop any product or service (including a course) based on the Confidential Information;
d) not allow or assist any other person to disclose, use, publish or release the Confidential Information;
e) put in place and maintain adequate security measures to protect the confidentiality of the Confidential Information being no less stringent than a reasonable person in your position would use with respect to its own confidential information including taking reasonable steps to:
1. keep the Confidential Information within your possession, power, custody and control;
2. ensure the proper and secure storage of the Confidential Information; and
3. protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction;
f) not copy, duplicate or adapt any or all of the Confidential Information or create other works from the Confidential Information without our prior written consent; and
g) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.
Notifying The EVP Co
42. You must immediately notify us if you:
a) become aware of any breach or anticipated breach of the obligations in these Terms; and
b) are lawfully obliged to disclose any Confidential Information to a third party and must comply with our lawful directions in relation to the disclosure.
43. We agree to keep any confidential information which you provide to us confidential.
44. You grant us the right to disclose your confidential information provided that such information is de-identified or where you give your consent.
INTELLECTUAL PROPERTY RIGHTS
45. The Intellectual Property is owned by us and is subject to copyright.
46. You agree that we own all rights, title and interest (including Intellectual Property Rights) which subsist in or which may be obtained from the Intellectual Property and you undertake not to:
a) take or permit or omit any action which would or might:
1. invalidate or put in dispute our title to the Intellectual Property or any part of it;
2. oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it;
3. support any application to remove or undo our title in the Intellectual Property or any part of it; or
4. assist any other person directly or indirectly in any of the above;
b) use the Intellectual Property in any way which would breach these Terms;
c) use the Intellectual Property for any commercial use; or
d) remove any copyright or other restrictive documentations from the Intellectual Property.
47. Nothing provided in our Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark without our express written permission.
48. You agree that damages may be an inadequate remedy to a breach of these Terms and acknowledge that The EVP Co will be entitled to seek injunctive relief if such steps are necessary to prevent violations of its intellectual property rights.
RIGHT TO SUSPEND & TERMINATE
49. We reserve the right to suspend or terminate your access to all or part of the Services in the event that you breach any terms of these Terms, as determined by us in our sole discretion. In that case, we will have no liability to provide you with any refund of Fees paid.
REFUNDS, CANCELLATIONS AND POSTPONEMENT
50. To the extent permitted by law, all Fees and other amounts paid by you to us are non-refundable.
LIABILITY IS LIMITED
51. Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law.
52. Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms, including any breach by us of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual amounts paid by you to us under these Terms.
53. Nothing in these Terms are intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
54. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the Services or the cost of resupply.
55. The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
56. Without limitation to the other terms of this clause, we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.
57. Notwithstanding anything else in this clause, our liability will be reduced to the extent the Loss is caused by or contributed to by you.
58. For the avoidance of doubt and to the extent permitted by law, we will not be liable to you for any Loss you suffer as a result of:
a) reliance on the completeness, accuracy, suitability or currency of information, Services irrespective of any verifying measures taken by us (including third party material and advertisements);
b) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
c) accessing websites or servers maintained by other organisations through our Services. Links are provided for convenience only. We do not endorse linked websites nor their products and services and you access them at your own risk;
d) the use of credit card or other financial information, failure to complete (or delay in completing) any transaction, or other Loss arising from any transaction made or attempted in connection with the Services.
59. You agree to indemnify us against, and hold us harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:
curred by us arising out of or in connection with:
a) your breach of these Terms or any policy or the terms and policies they incorporate by reference;
b) any claim made against us by a third party arising out of your use of the Services;
c) your violation of any law or the rights of a third party, or otherwise arising directly or indirectly from your use of our Services.
60. As affiliates of certain products and services we may receive compensation for recommending and promoting products/services linked to from our Services.
61. You cannot transfer or assign these Terms without The EVP Co’s prior written consent.
62. We may assign or transfer our obligations under these Terms at any time, subject to us giving you written notice.
63. If a dispute arises between the parties in relation to these Terms, the dispute must be dealt with in accordance with this clause and any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
64. In the case of claims against us, all notices are to be provided to us in writing.
65. If the dispute is not resolved by agreement within two (2) weeks of the Second Party receiving the notice referred to above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five (5) business days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.
66. Once a mediator is appointed, the parties agree that:
a) the costs of the mediator shall be borne equally between the disputing parties;
b) the chosen mediator shall determine the procedures for mediation; and
c) the chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
67. If the parties have not mediated a resolution of the dispute within ten (10) business days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it considers fit in relation to the dispute.
68. Nothing in this clause prevents a party from commencing proceedings seeking urgent interlocutory relief from a court or tribunal of competent jurisdiction to hear the matter, if, in that party’s reasonable opinion, it is necessary to protect their rights.
69. Despite the existence of a dispute the parties must continue to comply with their obligations under the contract.
70. This clause survives termination of these Terms.
FORCE MAJEURE, SECURITY & UNAVAILABILITY
71. If we become unable, wholly or in part, to carry out an obligation under these Terms due to an event beyond our reasonable control (Force Majeure), we will give you prompt written notice of:
a) reasonable details of the Force Majeure; and
b) so far as is known, the probable extent to which we will be unable to perform or be delayed in performing our obligations.
72. Subject to compliance with this clause, our obligations will be suspended during the Force Majeure to the extent that we are affected by the Force Majeure.
73. We will use our best endeavours to overcome or remove the Force Majeure as quickly as possible.
74. We take all reasonable steps, however we do not guarantee the security of the Website, our records, or your information. We disclaim all liability for any computer virus or technological problems that are beyond our control.
75. Continuous accessibility to the Website and Program Content is dependent upon third party services and as a result, the Website may be inaccessible from time to time. We cannot guarantee continuous or secure access to our Website and to the extent permitted by law, we do not give any promises or warranties about the availability of our Services, or that the Services will be provided uninterrupted, delay-free or error-free.
76. These Terms shall be construed in accordance with and governed by the laws of New South Wales, Australia. You consent to the non-exclusive jurisdiction of the courts in New South Wales, Australia to determine any matter or dispute which arises between us.
77. We welcome enquiries or feedback on our website or through contacting us generally. Unless specifically stated by you, we shall treat any information you provide us with, as non-proprietary and non-confidential.
78. If you have questions or comments regarding The EVP Co Services, please email us at email@example.com.