Terms of Business

Terms of Business

1. Introduction

These Terms and Conditions (“Terms“) govern the provision of services by Elephant in the Room Consulting™ and First Nations Strategies and BImpact Collective (“we,” “us,” or “our“) to our clients (“you” or “your”). By engaging our services, you agree to be bound by these Terms.

2. Services

We offer business coaching, management consulting, and First Nations strategy services as outlined in our service agreements or proposals. The scope of services will be defined in individual agreements.

3. Orders and Fees

3.1 Orders

Each Order will specify the services to be provided, associated fees, payment schedule, and any other relevant terms. An Order becomes binding upon the earliest of:

• Access to and use of the services;
• Issuance of a written acknowledgment by us;
• Signing of the Order by both parties.

3.2 Fees

Unless otherwise stated:

• Fees are quoted and payable in Australian Dollars;
• Fees are based on services purchased;
• All services are non-cancellable and fees are non-refundable, except in cases of termination for cause;
• Professional services fees exclude travel and related expenses, which will be charged at cost.

3.3 Invoicing and Payment Terms

• Invoices are issued upon commencement of services or as otherwise agreed.
• Payment is due within 14 days from the invoice date.
• Late payments may incur interest charges at a rate of 1.5% per month or the maximum rate allowed by law.
• We reserve the right to suspend services for accounts overdue beyond 30 days.

3.4 Taxes

Fees are exclusive of applicable taxes, levies, and duties. You are responsible for all taxes associated with the services, excluding taxes based on our net income.

4. Intellectual Property and Indigenous Cultural and Intellectual Property (ICIP)

4.1 Ownership

All intellectual property rights, including but not limited to copyrights, trademarks, designs, and patents, created or developed by us during the course of providing services shall remain our exclusive property.

4.2 Licence

We grant you a non-exclusive, non-transferable licence to use the deliverables provided for your internal business purposes. This licence does not permit you to reproduce, distribute, or create derivative works without our prior written consent.

4.3 Indigenous Cultural and Intellectual Property (ICIP)

We acknowledge and respect the rights of Indigenous peoples to their cultural heritage, traditional knowledge, and expressions. Any ICIP shared with us will remain the property of its respective Indigenous owners. We commit to obtaining informed consent before using or sharing any ICIP and will adhere to relevant protocols and agreements.

5. Reasonable Use of Retainer Services

Retainer agreements are designed to provide ongoing support within a defined scope. To ensure equitable service delivery:

• Services under a retainer are subject to a fair use policy, ensuring that the time and resources allocated are used reasonably and proportionately.
• Should your needs exceed the agreed scope, we will discuss and agree upon additional fees or a revised retainer arrangement.
• Unused hours within a retainer period may not roll over unless explicitly stated in the agreement.

6. Limitations of Liability

6.1

Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits, whether actual or anticipated; (ii) loss of revenue; (iii) loss of contracts; (iv) loss of anticipated savings; (v) loss of business; (vi) loss of opportunity; (vii) loss of goodwill; or (viii) any indirect, special or consequential loss or damage.

6.2

Elephant in the Room Consulting’s total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Order (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Company to Elephant in the Room Consulting or its Affiliates under such Order within the 12 month period preceding the event giving rise to Company’s claim.

6.3

Nothing contained in the Agreement shall exclude or limit either party’s liability for: (i) death or personal injury caused by its or its Affiliate’s negligence; (ii) fraud or fraudulent misrepresentation; (iii) any infringement or misappropriation of either party’s or a third party’s Intellectual Property Rights; or (iv) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases a party’s liability shall be limited to the greatest extent allowed by applicable law.

7. Confidential Information

7.1

“Confidential Information” means all information, in whatever form, furnished by one party or its Affiliates (the “Disclosing Party“) to the other party or its Affiliates (the “Receiving Party“) orally or in writing that is identified as confidential or proprietary at the time of disclosure or that should reasonably be assumed to be confidential or proprietary by its nature.

7.2

Receiving Party will: (i) only use or disclose Confidential Information as allowed under this Agreement; (ii) only disclose Confidential Information to its directors, officers, and employees with a need to know such information and who are under a duty of confidentiality; (iii) not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent; and (iv) maintain the Confidential Information using at least the same degree of care it uses for its own proprietary and confidential information.

7.3

Each party’s confidentiality obligations shall continue in force and survive the termination or expiration of the Order Term for a period of three (3) years. Confidentiality obligations for any Confidential Information subject to trade secret protection will continue indefinitely.

7.4

Confidential Information excludes information: (i) known by the Receiving Party prior to disclosure; (ii) made publicly available other than as a result of disclosure by the Receiving Party in breach of these Terms; (iii) disclosed to the Receiving Party on a non-confidential basis from a third party the Receiving Party reasonably believes is not prohibited from disclosing such information; (iv) developed by the Receiving Party independently; or (v) required to be disclosed by law, regulation or court order provided that, the Receiving Party: (a) if permitted, gives prompt notice to the Disclosing Party so it may contest such order; and (b) only discloses the minimum amount of Confidential Information necessary to comply with such order.

8. Termination

8.1 General

Except for termination for cause below, or as otherwise stated in an Order, Company may not terminate the Order and any Fees paid or payable by Company are non-refundable and non-cancellable.

8.2 Termination for Cause

Either party may terminate an Order for cause if the other party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy; or (b) materially breaches any provision of the Agreement (including Company’s failure to timely pay undisputed Fees in full) and: (i) the breach is not capable of cure; or (ii) if capable of being cured, the breach is not cured within thirty (30) days after the breaching party’s receipt of notice of breach stating the specific nature of the breach. Such termination will be without prejudice to any rights or remedies either party may have accrued up to the termination date.

8.3 Effect of Termination

Except as otherwise provided in the Agreement, upon expiration of the applicable Order Term, or termination of an Order, or portion thereof: (i) all licenses granted by Elephant in the Room Consulting under the Order or these Terms shall immediately terminate; and (ii) Company shall immediately cease use of the applicable Products and/or Services under the applicable Order. Elephant in the Room Consulting reserves the right to charge Company for any continued use of Products or Services after expiration or termination of an Order.

9. Warranties

9.1 Our Warranties

We warrant that we will perform the services in good faith and with reasonable care and skill in accordance with good industry practice. We do not guarantee the achievement of specific outcomes.

9.2 Disclaimer

All services are provided “as is” without any warranties of any kind, either express or implied, including but not limited to the implied warranties of merchantability or fitness for a particular purpose. We do not guarantee that the services will meet your requirements or that any results will be achieved.

10. Force Majeure

Neither party shall be liable for any failure or delay in performance under these Terms to the extent such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to acts of God, pandemics, war, terrorism, strikes, governmental action, or internet service disruptions.

11. Marketing and Publicity

Unless otherwise agreed in writing, you grant us permission to use your business name and logo in our marketing materials, including case studies, client lists, and promotional content. We will not disclose any confidential or proprietary information.

12. General Provisions

12.1 Severability

If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

12.2 Waiver

No failure or delay by either party in enforcing any right or remedy will operate as a waiver.

12.3 Entire Agreement

These Terms and any signed Order constitute the entire agreement between the parties and supersede all prior discussions, agreements, or understandings.

12.4 Assignment and Subcontracting

You may not assign your rights or obligations under these Terms without our prior written consent. We may use qualified subcontractors or affiliates to perform our obligations. We will ensure that any subcontractors or affiliates we engage meet any reasonable standards or requirements provided by the client, including those relating to quality, compliance, and confidentiality.

13. Governing Law

These Terms are governed by the laws of Queensland, Australia. Any disputes arising shall be subject to the exclusive jurisdiction of the courts of Queensland.