TWIYO Capital & Advisory Pty Ltd ACN 637 920177 (TWIYO) is a corporate authorised representative (CAR) (CAR Number 1286357) of Boutique Capital Pty Ltd ACN 621 697 621 (Boutique Capital) AFSL 508011.

TWIYO has taken all reasonable care in producing all the information contained in the website including but not limited to reports, tables, maps, diagrams and photographs.

However, TWIYO will not be responsible for loss or damage arising from the use of this information. The contents of this website should not be used as a substitute for detailed investigations or analysis on any issues or questions the reader wishes to have answered.

You may download the information for your own personal use or to inform others about our materials, but you may not reproduce or modify it without our express permission.

To the extent to which this website contains advice it is general advice only and has been prepared by the Company for individuals identified as wholesale investors for the purposes of providing a financial product or financial service, under Section 761G or Section 761GAof the Corporations Act 2001 (Cth).

The information in this website is not intended to be relied upon as advice to investors or potential investors and has been prepared without taking into account personal investment objectives, financial circumstances or particular needs. Recipients of this information are advised to consult their own professional advisers about legal, tax, financial or other matters relevant to the suitability of this information.

Any investment(s) summarised in this website is subject to known and unknown risks, some of which are beyond the control of TWIYO and their directors, employees, advisers or agents. TWIYO does not guarantee any particular rate of return or the performance, nor does TWIYO and its directors personally guarantee the repayment of capital or any particular tax treatment. Past performance is not indicative of future performance.

All investments carry some level of risk, and there is typically a direct relationship between risk and return. We describe what steps we take to mitigate risk (where possible) in the investment documentation, which must be read prior to investing. It is important to note risk cannot be mitigated completely.

Whilst the contents of this website is based on information from sources which TWIYO considers reliable, its accuracy and completeness cannot be guaranteed. Data is not necessarily audited or independently verified. Any opinions reflect TWIYO’s judgment at this date and are subject to change. TWIYO has no obligation to provide revised assessments in the event of changed circumstances. To the extent permitted by law, Boutique Capital, TWIYO and their directors and employees do not accept any liability for the results of any actions taken or not taken on the basis of information in this website, or for any negligent misstatements, errors or omissions.

Complaint Resolution Process

At TWIYO, we are committed to helping you and doing what’s right.

We care about what you think and welcome your compliments, suggestions, and complaints.

If you are dissatisfied with us, a service, product, staff, or the handling of a complaint, and you need a response or resolution, then you have a complaint.

How to lodge a complaint

You can let us know about your dissatisfaction with us, our staff, service, product, or our complaints handling process in whichever way is best for you:

o      Email at hello@twiyo.com.au

o      Phone us on +61 425 369 602

o      Through our online feedback form

o      Write to us at hello@twiyo.com.au

You can also use these contact methods if you would like further information about our complaints handling process.

Information we need

If your feedback is about a complaint, we will ask for certain information from you, including:

o      your name

o      your contact details

o      how you prefer to be contacted

o      a description of your complaint, and

o      how you would like the complaint resolved.

When to expect a response

We work proactively to investigate and resolve complaints as quickly as practicable, and many complaints can be resolved within days or on the spot.

Where a complaint cannot be resolved immediately, we will:

o      acknowledge your complaint generally within 24 hours, and

o      give you the contact details of the person responsible for dealing with your complaint.

The person responsible for dealing with your complaint will commence their investigation and:

o      may contact you for further details

o      keep you informed about the status of your complaint at different times

o      let you know the expected timeline for your complaint to be resolved, which may be up to 30 calendar days

o      your role in getting the complaint concluded, if applicable

o      when they complete their investigation, contact you about the outcome, and any resolution that may be available to you where applicable.

Where your response cannot be resolved within30 days, we will be in contact with you.  

If you are still unhappy

If you are not satisfied with our we handle your complaint, you can contact our Australian Financial Services Licensee Boutique Capital Pty Ltd by:

o      Email:info@boutiquecapital.com.au

o      Phone:1800 541 155

o      Online:www.boutiquecapital.com.au

o      Mail: Boutique Capital, Suite 211, 3 Eden St, North Sydney NSW 2060

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Terms of Service

Operative Provisions:

1.  Definitions & Interpretation

1.1 Definitions

In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions: 

(a) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

(b) Address for Service: a party’s email address or address set out in the “parties” section on this Agreement or such other address for service advised by the party to the other parties in writing from time to time.

(c) Agreement: means this Terms of Service and the Schedule.

(d) Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.

(e) Capital Raise Services: those services described as Capital Raise Services in the Schedule.

(f) Client: the Client named in the Schedule.

(g) Client Content: means any documents or materials supplied by the Client to the Consultant under or in connection with this agreement, including any Intellectual Property Rights attaching to those materials.

(h) Commencement Date: the date set out in the Schedule.

(i) Confidential Information: means any information, whether recorded in writing or otherwise disclosed by one party to the other which any reasonable person would consider to be of a confidential nature, including without limitation any trade secrets, methods, strategies, competitor details, pricing, and other business processes. Confidential Information does not include information that:

(i) is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or

(ii) becomes publicly available without breach of this Agreement.

(j) Consultant: the Consultant named in the Schedule.

(k) Consultant IP: means all materials owned or licensed by the Consultant that is not Developed IP and any Intellectual Property Rights attaching to those materials.

(l) Corporations Act: the Corporations Act 2001 (Cth).

(m) Deliverables: any material, information or content produced, developed or delivered by the Consultant in connection with the Services (whether alone or in conjunction with the Client or its Personnel).

(n) Developed IP: means any materials produced by the Consultant in the course of providing the Services including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials

(o)  Encumbrance: any encumbrances, liens or security interests of any nature, including a security interest as defined in the Personal Property Securities Act 2009 (Cth).

(p) Equity: the equity consideration (being shares or units) to be issued to the Consultant, or which the Consultant has an option to acquire, as set out in the Schedule (if any).

(q) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(i)  strikes, lock-outs or other industrial action;

(ii)  civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist

attack, war (whether declared or not) or threat or preparation for war;

(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health

emergencies, disease, or other natural disaster;

(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(v)  interruption or failure of utility services (including the inability to use public or private telecommunications networks); and

(vi) the acts, decrees, legislation, regulations or restrictions of any Government Authority,

however, does not include a lack of funds.

(r) Government Authority: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

(s) GST: has the same meaning given to it under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(t) Intellectual Property Rights: means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.

(u) Issuing Entity: the entity in which the Equity is to be issued, being either the Client or such other entity named as the Issuing Entity in the Schedule (if applicable).

(v) Loss: any loss, liability, cost, charge, expense, Tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

(w) Option: the option to acquire the Equity, as set out in the Schedule (if applicable).

(x) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.

(y)  Related Entity: has the meaning given in section 9 of the Corporations Act.

(z)  Service Fee: has the meaning given in clause 5.1.

(aa) Services: the services set out in the Schedule to be provided by the Consultant to the Client, and as amended from time to time in accordance with this Agreement.

(bb) Schedule: the Schedule attached to this Agreement.

(cc) State: New South Wales, Australia.

(dd) Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Authority including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.

(ee) Term: has the meaning given in clause 2.1.

1.2  Interpretation  

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

1. Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
2. References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.
3. References to parties are references to the parties to this Agreement.
4. References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
5. Words denoting the singular include the plural and words denoting the plural include the singular.
6. Words denoting any gender include all genders.
7. The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Authority.
8. A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
9. A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.
10. A reference to a law includes:

(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;

(ii) any constitutional provision, treaty or decree;

(iii) any judgment;

(iv) any rule or principle of common law or equity, and

(v) is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

(k)Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.

(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.

(m) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.

(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.

(o) A reference to time is a reference to time in the capital city of the State.

(p)  A reference to a day is a reference to a day in the capital city of the State.

(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.

(r) If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.

(s) If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.

(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.

(u) Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

(v) Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

(w) This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.

(x) A reference to writing or written includes email.

(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2.  Term

2.1 Subject to clause 2.3, this Agreement will commence on the Commencement Date and will continue on a month-to-month cycle until terminated in accordance with clause 18 (Term).

2.2  In order to avoid interruption of the provision of the Services, this Agreement will automatically renew at the end of each monthly cycle unless either party gives at least written notice in accordance with the termination notice period set out in clause 18.1 and if relevant, the Schedule. The termination will be effective and the end of the relevant notice period.

2.3 If an Expiry Date is set out in the Schedule, this Agreement will automatically expire on the Expiry Date.

2.4 The terms of this Agreement apply to the Services provided by the Consultant to the Client.

3.  Engagement of the Consultant

3.1 Engagement

The Client engages the Consultant to provide the Services to the Client during the Term in the manner as specified in the Schedule in accordance with the terms of this Agreement.

3.2 Nature of engagement

The engagement of the Consultant by the Client is on a non-exclusive basis, and the Consultant may provide services which are the same as or similar to the Services to a third party during the Term.

4. Services

4.1 Scope

1. The scope of the Services is as set out in the Schedule.
2. The Consultant may agree to amendments to the scope at its discretion in accordance with the amendment policy set out in clause 10.
3. Any agreement between the parties as to the delivery schedule and amendments to the scope of the Services will form part of the Schedule and be incorporated into this Agreement.

4.2 Performance of Services

The Consultant may determine the manner by which it performs the Services for the Client, including but not limited to the time and place for performance of the Services.

4.3 Services do not roll over

In the event that the Client does not utilise all of the Services which are included in any given month during the Term, those unused Services will effectively expire at the end of that month and will not roll over to any subsequent months. 

4.4  Capital Placement Services Disclaimers

If the Schedule states that the Services include Capital Placement Services, the Consultant makes no representation, warranty or guarantee as to the success or potential success of any Capital Placement Services, including as to the number of investors, the size of the overall capital raise, or the favourability of the subscription terms for the Client. The Client hereby releases the Consultant from any claims that are inconsistent with the disclaimers in this clause.

5.   Fees and payment

5.1  Service Fee

1. In consideration of the Consultant providing the Services, the Client must pay to the Consultant the fee for the Services in the amount and in the manner as specified in the Schedule (Service Fee).
2. The Client acknowledges that the payment of the Service Fee may be either a cash fee or Equity, as set out in the Schedule.
3. The Consultant reserves the right to increase its fees on 1 July each year (Fee Increase), which will be at a rate of no more than 10% per annum. The Consultant will give sufficient notice to the Client of the relevant fee increase, such that if the Client does not agree to the Fee Increase the Client may terminate this agreement in accordance with clause 18.1 without incurring the Fee Increase.

5.2  Payment Terms

1. During the Term, the Consultant will provide a tax invoice (Tax Invoice) to the Client at the times as set out in the Schedule in respect of any cash Service Fee payable.
2. The Client must pay each Tax Invoice submitted by the Consultant within 7 days of receipt of the Tax Invoice, billed on the first day of each month (unless otherwise set out in the Schedule).
3. The Service Fee set out in the Schedule is the minimum retainer payable per month (regardless of the Services performed or not performed by the Consultant). In the event that the scope of the Services changes, the Service Fee will be increased in accordance with clause 10.

5.3  Equity

1. Where the Service Fee section in the Schedule states that the Consultant is to be issued Equity, the terms of this clause 5.3 will apply. The terms of the issue of Equity (including the quantity and date for issue) are as set out in the Schedule and in this clause. The Client must cause the Issuing Entity to comply with this clause.
2. On the date for issue in accordance with the Schedule, the Issuing Entity must issue the Equity to the Consultant’s nominee free of all Encumbrances.
3. On the completion of the issue of the Equity to the Consultant:

(i)  the Issuing Entity must:

1. issue share or unit certificates (as the case may be) to the Consultant in respect of the Equity; and
2. update the register of members of the Issuing Entity; and
3. do all other things which are reasonably required by the Consultant to give to the Consultant’s nominee the full ownership and benefit of the Equity; and

(ii)  the Consultant’s nominee agrees to execute the Issuing Entity’s Shareholders Agreement or a deed acceding to same upon request.

(d) The Client and the Issuing Entity are strictly prohibited from directly or indirectly undertaking any act designed to circumvent the issue of the Equity in accordance with this Agreement or otherwise reduce the value of the Equity below the value that would have been attributed to it if it were issued on the Commencement Date. In the event that the Consultant considers the Client and/or the Issuing Entity to be in breach of this clause, the Client and the Issuing Entity (jointly and severally) must, without limitation, pay to the Consultant the amount that the Consultant estimates is representative of the Loss suffered by the Consultant in connection with the breach.  The Consultant may issue the Client and/or the Issuing Entity with an invoice for this amount and that amount is payable by the Client and/or the Issuing Entity immediately as a liquidated debt.

(e) A breach of this clause 5.3 by the Issuing Entity will also be deemed to be an irremediable breach of this Agreement by the Client.

5.4 Option

1. Where the Service Fee section in the Schedule states that the Consultant is to be granted the Option, the terms of this clause 5.4 will apply. The terms of the Option (including the quantity and class of Equity and the expiry date) are as set out in this clause and the Schedule. The Client must cause the Issuing Entity to comply with this clause.
2. In consideration of the Consultant agreeing to pay the Issuing Entity on demand an option fee of $1.00 (in total), the Issuing Entity hereby irrevocably grants to the Consultant an Option to be issued the Equity in accordance with the provisions of this Agreement. 
3. The Consultant may exercise the Option at any time by giving notice in writing to the Issuing Entity to that effect on or before the expiry date for the exercise of the Option (Exercise Notice). For the avoidance of doubt:

(i) the Consultant can require the Equity the subject of an Exercise Notice to be issued to the Consultant’s nominee; and

(ii) the Option may be exercised during or after the Term.

4. Completion of the issue of the Equity following the issue of an Exercise Notice shall be effected 7 days from the exercise of the Option or such earlier date agreed between the parties. On the date for issue, the Issuing Entity must cause to be issued the Equity to the Consultant’s nominee free of all Encumbrances.
5. On the completion of the issue of the Equity to the Consultant:

(i) the Issuing Entity must:

(A) issue share or unit certificates (as the case may be) to the Consultant in respect of the Equity; and

(B) update the register of members of the Issuing Entity; and

do all other things which are reasonably required by the Consultant to give to the Consultant’s nominee the full ownership and benefit of the Equity; and

(ii) the Consultant’s nominee agrees to execute the Issuing Entity’s Shareholders Agreement or a deed acceding to same upon request.

6. The Option will continue to have force and effect notwithstanding any increase, reduction, consolidation or subdivision of any of the equity in the Issuing Entity or the rights or obligations attaching thereto, and the Option shall continue to apply with the necessary changes to the Equity so increased, reduced, consolidated or subdivided.
7. The Client and the Issuing Entity are strictly prohibited from directly or indirectly undertaking any act designed to circumvent the issue of the Equity in accordance with this Agreement or otherwise reduce the value of the Equity below the value that would have been attributed to it if it were issued on the Commencement Date. In the event that the Consultant considers the Client and/or the Issuing Entity to be in breach of this clause, the Client and the Issuing Entity (jointly and severally) must, without limitation, pay to the Consultant the amount that the Consultant estimates is representative of the Loss suffered by the Consultant in connection with the breach.  The Consultant may issue the Client and/or the Issuing Entity with an invoice for this amount and that amount is payable by the Client and/or the Issuing Entity immediately as a liquidated debt.
8. A breach of this clause 5.4 by the Issuing Entity will also be deemed to be an irremediable breach of this Agreement by the Client.
9. This clause survives termination of this Agreement and the Option will continue to have force and effect notwithstanding the termination of this Agreement.

5.5 Other Expenses

1. The Client agrees that the payment of the Service Fee does not include payment of any third-party expenses, outlays and disbursements or incidental expenses that relate to the Services in any way (Supplier Costs). For the avoidance of doubt, the Client is responsible for all Supplier Costs in connection with Services provided that the Client gives approval in writing prior to the Consultant incurring the Cost, including (without limitation):

(i) legal costs;

(ii) graphic design costs; and

(iii) expert costs, such as the cost of an engineer where the Consultant engages an engineer to assist with writing part of the business plan for the Client;

(iv) reasonable transport costs to and from meetings arranged by, or for the benefit of, the Client; and

(v) any other travel expenses incurred in connection with the Services.

2. The Consultant will invoice the Client for such Supplier Costs monthly in arrears and payment is due within 7 days of the date of the invoice.

5.6 Default in payment

In the event the Client fails to pay the Service Fees or other charges when due in full in cleared funds in accordance with this Agreement, the Consultant may at its discretion (and without limitation to any other rights it may have):

1. cease providing the Services to the Client without notice until all overdue amounts are paid (including any accrued interest in accordance with sub-clause (b)), and the Consultant will not be responsible for any Loss the Client suffers because of this; and
2. charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily until the date of actual payment; and/or
3. terminate this Agreement, whereupon the Service Fee for the Services performed up to the date of termination, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.

5.7 Default in terms

The Client will also pay to the Consultant, on demand, on a full indemnity basis, all amounts that the Consultant may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on any of the terms of this Agreement.

5.8 General

1.  Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST and the Client must pay GST on the Service Fee at the same time as payment of the Service Fee is due.
2. The Client must make all payments without set-off or counterclaim. Payment of the Service Fee is not dependent on receipt of the Tax Invoice.
3. All amounts paid to the Consultant under this Agreement are non-refundable to the extent permitted by law.

6.  Right of First Refusal - Capital Raise Services

6.1 In the event that the Schedule notes that the Consultant has a right of first refusal in respect of the Capital Raise Services, then in the event that the Client (or any Related Entity of the Client) wishes to raise capital in any way (including via debt or equity), the Client must first offer (or procure that the relevant Related Entity first offers) the Consultant the right to provide the Capital Raise Services to the Client (or the relevant Related Entity) prior to engaging any other person to provide services similar to the Capital Raise Services or otherwise undertaking a capital raise (without an advisor). The Client agrees to exclusively negotiate with the Consultant in good faith the terms of the Capital Raise Services (which must be consistent with the terms set out in this Agreement) for a period of 30 days (Negotiation Period) from the date that the Client notifies the Consultant that it, or its Related Entity, intends to undertake a raise.

6.2 In the event that the parties do not agree on the terms of the Capital Raise Services within the Negotiation Period, the Client is not required to engage the Consultant to provide the Capital Raise Services however:

(a) the Client is prohibited from engaging any third party to provide services similar to the Capital Raise Services on terms more favourable than those offered by the Client during the Negotiation Period; and

(b) if the Client does not undertake a capital raise or engage any third party advisor to provide services similar to the Capital Raise Services within 12 months of the expiry of the Negotiation Period, then the terms of clause 6.1 apply again and the Client must not raise capital in any way without having first complied with the offer requirements set out therein.

7. Service Provider's duties and responsibilities

7.1  The Consultant must provide the Services:

1. with reasonable care and skill; and
2. using its own equipment except where otherwise agreed or arranged.

7.2 The Consultant must:

1. use reasonable endeavours to provide the Services to the Client in accordance with the Schedule in all material respects;
2. use reasonable endeavours to meet any performance or milestones dates specified in the Schedule but any such dates will be estimates only and time for performance will not be of the essence of this Agreement or binding on the Consultant;
3. ensure it is not under any restriction which would interfere with or conflict with providing the Services; and
4. comply with all Applicable Laws.

8. Client duties and responsibilities

8.1 Supply of information, approvals, documents and assistance

1. The Client acknowledges and agrees that it will:

(i) promptly provide all information, documentation, approvals and assistance reasonably required by the Consultant in order for the Consultant to provide the Services as soon as possible on being requested to do so. This includes, without limitation, access to required software platforms and accounts necessary to perform the Services;

(ii) attend the session times reserved for them with the Consultant or its Personnel and, where any rescheduling or cancellation of their regular session is required at the initiative of the Client, they will provide as much advance written notice as possible to the Consultant (and the Client acknowledges that where the parties cannot agree on a rescheduled time this may result in the Consultant being unable to provide the Services, however the Client will still be required to pay for the Services); and

(iii) perform all actions and tasks requested of them by the Consultant within the timeframe reasonably specified by the Consultant.

2. Any delays by the Client may delay the Services and may incur additional charges.
3. Where the Client fails to supply this information to the Consultant or fails to comply with its obligations, and that prevents the progress of the Services for a period of 10 days or more, then, the Consultant reserves the right to (without limitation):

(i) terminate this Agreement; and

(ii) invoice the Client for any part or parts of the Services already completed.

8.2  Compliance with Laws

The Client acknowledges and agrees that it will not by receiving or requesting the Services:

1. breach any applicable laws, rules and regulations (including any applicable privacy laws); or
2. infringe the Intellectual Property Rights or other rights of any third party or breach any duty it has to a third party.

9. Quality Control

9.1 Although the Consultant will use reasonable endeavours to ensure that any Deliverables are current, accurate, up-to-date, complete and compliant, the Consultant does not warrant, and the Client accepts sole responsibility to ensure that:

1. all content contained in the Deliverables is current, accurate, adequate, up-to-date, complete and correct;
2. all content contained in the Deliverables is error-free in terms of layout, spelling, grammar, punctuation and consistency;
3. the Deliverables do not violate or infringe upon the rights of any third party (including Intellectual Property Rights); and
4. the content contained in the Deliverables is compliant with Applicable Laws (including misleading and deceptive advertising laws).

9.2 For the avoidance of doubt, it is the Client’s sole responsibility to review and confirm they are satisfied with any Deliverables in accordance with this clause 9, and the Consultant will not be liable for any Loss the Client suffers in this respect.

9.3 If the Client requests the Consultant to rectify any fault with a Deliverable, which is the responsibility of the Client in accordance with this Agreement, then the Consultant may in its discretion provide a quote for such work, and is under no obligation to rectify it.

10.  Variations and amendments

10.1 Should the Client require amendments to the scope of the Services specified in the Schedule, then the Client may request the Consultant provide such amendments, and the Consultant may accept or reject such request at its sole discretion. If the Consultant accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by the Consultant at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these scope changes.

10.2  The Consultant reserves the right to make changes to the Services which are necessary to comply with Applicable Laws, Government Authority requests or safety requirements.

10.3 The Client is solely liable for the payment of any additional Services outside of the scope that is agreed upon in the Schedule.

11. Relationship

11.1 The parties acknowledge that:

1. the Consultant is engaged by the Client as an independent contractor and nothing in this Agreement creates or constitutes a relationship of employer and employee, trustee and beneficiary or of partnership or joint venture between the parties; and
2.  the Consultant is free to provide its services to third parties during the Term.

12. Delegation and subcontracting

12.1 The Consultant may subcontract, delegate and/or perform the Services through any other third party it considers to be competent and qualified to perform the Services.

12.2 The Consultant will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by the Consultant.

13.  Insurance

13.1 The Client must obtain and maintain with a reputable insurer for the Term:

1. public liability insurance with a minimum indemnity limit of $20 million per occurrence;
2. in relation to its employees, workers compensation insurance in accordance with the relevant state and territory legislation in which Services are to be provided.

13.2 If requested by the Consultant, the Client must provide to the Consultant a copy of the certificate of currency for the insurance policies required to be held by it under this clause 13.

13.3 The Consultant must obtain and maintain with a reputable insurer for the Term:

1. public liability insurance with a minimum indemnity limit of $20 million per occurrence;
2. professional indemnity insurance with a minimum limit of $1 million per occurrence; and
3. in relation to its employees, workers compensation insurance in accordance with the relevant state and territory legislation in which Services are to be provided.

13.4 If requested by the Client, the Consultant must provide to the Client a copy of the certificate of currency for the insurance policies required to be held by it under this clause 13.

14. Confidentiality

14.1 General

Each party (Recipient) acknowledges and agrees that during the course of the provision of the Services, the Recipient will have access to Confidential Information belonging to the other party (Discloser).

14.2 Ownership

The Recipient acknowledges that all Confidential Information remains the property of the Discloser.

14.3 Confidentiality obligations

1. Other than where:

(i) use of the Confidential Information is required for the purpose of complying with the Recipient's obligations under this Agreement or to otherwise provide the Services;

(ii) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;

(iii) expressly agreed by all parties in writing; or

(iv) required by law or to enforce a party’s rights under this Agreement;

the Recipient must at all times:

(v) treat and keep the Confidential Information confidential;

(vi) not use, or allow the use, of the Confidential Information by any third party; and

(vii)  not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.

2. Without limiting the generality of clause 14.3(a), the Recipient must:

(i) only use the Confidential Information in accordance with the instructions provided by the Discloser in writing;

(ii) not reproduce or record or make any notes of any Confidential Information except as permitted;

(iii) not allow or assist any other person to disclose, use, publish or release the Confidential Information;

(iv) 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 the Recipient’s position would use with respect to its own confidential information including:

1. taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;
2. taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and
3. taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction; and

(v) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever

14.4 Notifying the Discloser

The Recipient:

1. must immediately notify the Discloser if the Recipient becomes aware of any breach or anticipated breach of the obligations in this Agreement; and
2. must immediately notify the Discloser if the Recipient is lawfully obliged to disclose any Confidential Information to a third party and must comply with the Discloser’s lawful directions in relation to the disclosure

14.5  Return of Confidential Information

1. If requested by the Discloser, the Recipient must immediately:

(i) return to the Discloser or destroy (at the direction of the Discloser) all Confidential Information, and any copies of the Confidential Information;

(ii) cease using the Confidential Information; and

(iii) an authorised signatory of the Recipient must confirm in writing that they complied with this clause.

2. For the avoidance of doubt, the return, destruction or deletion of Confidential Information under this clause does not release the Recipient from its obligations under or in connection with this Agreement.

14.6 Injunction

In the event of a breach or threatened breach of these terms by the Recipient, the Discloser will be entitled to an injunction restraining the Recipient from committing any breach of this Agreement without showing or proving actual damage sustained or likely to be sustained.

14.7 Assumes responsibility

The Recipient agrees to assume responsibility for the actions of its Personnel and advisers who have access to the Confidential Information.

15. Non-disparagement

During the Term, and following expiry of the Term, each party (and its Personnel) must not by any method including on social media anywhere in the world:

1. make any public or private statement, public or comment, whether oral or in writing, which in the reasonable opinion of the other party, is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about the other party (and its Personnel); or
2. make any public or private statement that is false and does or has the tendency to damage the reputation of the other party (and its Personnel).

16. Intellectual property

16.1 Client content

1. The Client grants to the Consultant (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
2. The Client:

(i) warrants that the Consultant’s use of Client Content as contemplated under this agreement will not infringe any third-party Intellectual Property Rights; and

(ii) will indemnify the Consultant from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

16.2  Consultant IP

1. The Client will not under this agreement acquire Intellectual Property Rights in any Consultant IP. Any Developed IP will be solely and exclusively owned by the Client.
2. The Client grants to the Consultant a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use any Developed IP for any other purpose in the Consultant’s sole and absolute discretion, provided that the Consultant redacts the Client’s Confidential Information from such Developed IP.
3. If any Developed IP licensed to the Consultant under this clause is redacted and incorporated into other work products of the Consultant, those new work products will be considered Consultant IP.

16.3 Use of Logo

During the Term, the Client grants the Consultant the right to use the Client’s logo and refer to the Client as a client of the Consultant for promotional, marketing and advertising purposes, including to display testimonials on its website and social media channels.

16.4 Survival

This clause survives termination of this Agreement.

17.  Representations and warranties

17.1 Each party represents and warrants to the other that:

1. it has full authority to enter into this Agreement and is not bound by any agreement with any third party that adversely affects this Agreement; and
2.  it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this Agreement.

17.2 Each party will immediately notify the other party if any of the foregoing representations and warranties cease to be true during the term of the Agreement

18. Termination

18.1 Termination without cause

Unless otherwise set out in the Schedule, either party may terminate this Agreement, without cause by giving 60 days’ written notice, in accordance with clause 2.2. The termination will be effective and the end of the 60 days’ notice period.

18.2 Termination with cause

In addition to such rights set out under this clause 18, either party (the non-defaulting party) may terminate this Agreement with immediate effect by giving written notice to the other party if:

1. the other party (being the Client) fails to pay any amount due under this Agreement on the due date for payment; or
2. the other party commits a breach of any term of this Agreement and either:

(i) the breach is irremediable; or

(ii) the breach is remediable, and the other party fails to remedy that breach within a period of 10 days after the other party has, or is deemed to have, received written notice requesting it to do so.

19. Consequences of termination

19.1  On termination or expiry of this Agreement:

1. each party must promptly deliver to the other all property belonging to the other that is in its possession or control, including any Confidential Information or intellectual property; and
2. the Client must immediately pay to the Consultant all amounts payable to the Consultant (including amounts that are payable but not due), and the Consultant may invoice the Client with respect to the Services performed up to the date of termination and such invoice shall be payable immediately on receipt; and
3. no refunds of amounts paid in respect of the period post termination or expiry will be provided.

19.2 Termination or expiry of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

19.3 If the Schedule indicates that an Early Termination Fee is payable, then if this Agreement is terminated by any party prior to the expiry of the Minimum Term noted in the Schedule, the Client agrees to pay to the Consultant the Early Termination Fee within 7 days of the termination taking effect where no Success Fee (as described in the Schedule) has been paid prior to that date.

20.  Disclaimer

20.1 The Consultant provides the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services and any information or guidance provided by the Consultant to the Client throughout the provision of the Services (Information) at its own risk.

20.2 Without limiting clause 20.1 the Client acknowledges and agrees that:

1. any Information is not and should not be construed as accounting and/or legal advice and is not intended to be a substitute for such advice and should not be relied upon as such. Such Information is provided as general guidance only, without representation or warranty;
2. whilst every effort is made to ensure any Information provided by the Consultant is accurate, the Consultant makes no representations about the currency, suitability, reliability, availability, timeliness, and accuracy of any Information for any purpose. The Client should verify the accuracy of any information provided before relying on it;
3. the Consultant does not control any third party that it refers to the Client and takes no responsibility for the actions of third parties. As a result, the Consultant provides no guarantee or warranty or indemnity in respect of such third party’s ability to undertake their respective obligations or otherwise;
4. although the Consultant provides Information to assist the Client, the Consultant is not responsible for decisions that the Client may make nor losses that may arise out of any decision made by the Client at any time. The Client is solely responsible for following or not following, or making an assessment of, any Information provided. The Client should make their own enquiries and obtain their own independent advice in relation to the Information provided before making any decision or taking any action based on their contents; and
5. the Client is solely liable for ensuring that it complies with Applicable Laws. For the avoidance of doubt the Consultant will not be liable for ensuring that the Client complies with Applicable Laws; and
6. the Consultant does not provide any guarantee of results (such as a successful capital raise, exit or any other outcome). Both parties acknowledge and agree that a capital raise, exit or any other outcome is not guaranteed.

20.3 This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement.

21. Exclusion & limitation of liability

21.1  Subject to the other terms of this clause, the Consultant excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law.

21.2 Subject to the other terms of this clause, the Consultant’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by the Consultant of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Service Fees paid by the Client to the Consultant under this Agreement in the 1-month period preceding the matter or event giving rise to the claim.

21.3 Without limitation to the other terms of this clause, the Consultant excludes any liability to the Client, whether in contract, tort (excluding negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

21.4 Notwithstanding anything else in this clause, the Consultant’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client or the Client’s Personnel.

21.5 The Consultant will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty unless:

1.  the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
2. that claim has been denied in whole or partly by the relevant insurer.

21.6 If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of this Agreement.

22.  Indemnity

22.1 Except to the extent caused or contributed to by breach of this Agreement by the Consultant, the Client indemnifies the Consultant against, and holds the Consultant 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 the Consultant arising out of or in connection with:

1. the Client’s breach or negligent performance or non-performance of this Agreement;
2. any claim made against the Consultant or the Client by a third party arising out of or in connection with:

(i) the provision of the Services and/or this Agreement;

(ii) the reliance by the Client or a third party on the Services; or

(iii) defective Services,

i.to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement, or is attributable to the acts or omissions of the Client or the Client’s Personnel;

(c) the enforcement of this Agreement; and

(d) any act, omission or willful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).

22.2 It is not necessary for the Consultant to incur expense or make payment before enforcing a right of indemnity under this clause.

22.3 The indemnities in this clause:

1. are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and
2. are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.

23. Non-solicitation

23.1 Restraint on staff

In order to reasonably protect the Consultant, the Client agrees with the Consultant that it will not (and will procure its Personnel do not), whether directly or indirectly (including through a Related Entity), for each of the Restraint Periods:

1. approach, or accept any approach from, Restricted Staff to provide services that are similar to the services provided by the Consultant to the Client under this Agreement;
2. interfere in any way with the relationship between the Consultant and its Restricted Staff; or
3. engage in any combination of the above.

23.2 Definitions

For purposes of this clause:

1. “Restraint Period” means during the Term of this Agreement and for a period of:

(i) 12 months;

(ii) 6 months;

(iii) 3 months,

1.  after the expiry or termination of the Term.

2. "Restricted Business" means:

(i) a business or operation similar to, or competitive with the Consultant;

(ii) any business that competes with the Consultant;

(iii) any business that operates in the industry of the Consultant; or

(iv) any business or operation similar to that carried on by the Client in which the Restricted Staff was engaged with.

3. “Restricted Staff” means an employee, contractor, officer or agent of the Consultant:

(i) with whom the Client has had dealings with during the 12 month period prior to the event that gives rise to this clause; or

(ii) who was an employee, contractor, officer or agent of the Consultant in the 12 month period prior to termination of this Agreement.

23.3 Interpretation

1. This clause has effect as if it consisted of several separate covenants and restraints consisting of each separate covenant and restraint set out in clause 23.1 combined with each separate Restraint Period (as appropriate) ("Restraint Covenants") and if any of the Restraint Covenants are or become invalid or unenforceable for any reason then the invalidity or unenforceability does not affect the validity or enforceability of any of the other Restraint Covenants.
2. This clause shall be interpreted as a goodwill covenant and without reference to, and independent of, any other covenant in restraint of trade contained any other agreement or deed given by the Client.

23.4 Acknowledgements

The Client acknowledges and agrees that:

1. any combination of the acts referred to in clause 23.1 combined with each separate Restraint Period referred to would be unfair and calculated to damage the Consultant;
2. the Client has received substantial and valuable consideration for the Restraint Covenants including that it:

(i) has acquired significant information about the business of the Consultant including the names of employees, contractors, officers, agents, suppliers and customers with whom the Consultant does business;

(ii) has had the opportunity to forge personal links with employees, contractors, officers, agents, suppliers and customers; and

(iii) has had the opportunity to learn and acquire trade secrets, business connections and other Confidential Information about the Consultant's business;

(c)  disclosing Confidential Information, or using Confidential Information to the Client's benefit or the benefit of a competitor of the Consultant, could materially harm the Consultant's business;

(d) the Restraint Covenants contained in this Agreement are reasonable in scope, duration and time, and reasonably necessary to protect the Consultant's goodwill and legitimate interests and that the Client has been responsible for and approves its drafting;

(e) it has received legal advice or has had the opportunity of obtaining legal advice in relation to this advice;

(f) the Consultant may apply for injunctive relief if the Client breaches or threatens to breach this clause; and

(g) the words "directly or indirectly interested or engaged in or concerned with" are all to be given the widest possible interpretation and include (without derogation from their generality) such activities through any association or arrangement with any person, relative, nominee or trust in or over which any interest or influence (absolute or partial) is held.

23.5 Permitted activities

This clause will not apply in circumstances where the activity has been expressly agreed to in writing from time to time by the Consultant.

24. Force majeure

24.1 The Consultant will not be in breach of this Agreement or liable to the other party for any Loss incurred by that other party as a direct result of the Consultant failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from a Force Majeure Event.

24.2 If a Force Majeure Event occurs, the Consultant must notify the other party (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

24.3  On providing the notice above, the Consultant will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Consultant must continue to use all reasonable endeavours to perform those obligations.

24.4 Subject to the other terms of this clause, the performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

25.  Notices

25.1 All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.

25.2 The following shall constitute proof of receipt:

1. proof by posting by registered post; or
2. proof of dispatch by email.

25.3 Receipt of a notice given under this Agreement will be deemed to occur:

1. in the case of a communication sent by pre-paid registered post, on the third business day after posting;
2. in the case of an email, on the business day immediately following the day of dispatch.

25.4 If a notice is sent via post, it must also be sent via email.

26. General provisions

26.1 Variation

An amendment or variation of any term of this Agreement must be in writing and signed by each party.

26.2  No Waiver

1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
2. Words or conduct referred to in clause 26.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel

26.3 Assignment, Novation and Other Dealings  

1. The Consultant may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.
2. Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Consultant, whose consent must not be unreasonably withheld.

26.4  Counterparts

This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

26.5 Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

26.6 Severability

1. If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
2. Clause 26.6(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.

26.7 No Merger

On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.

26.8 Survival

Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.

26.9 Time of the Essence

Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.

26.10 Remedies Cumulative  

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

26.11 Entire Agreement  

This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

26.12 Governing Law and Jurisdiction  

1. This Agreement is governed by the law in force in the State.
2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 26.12(a) on the basis that:

(i) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or

(ii) the courts described in clause 26.12(a) do not have jurisdiction.

26.13 Special Conditions

The Special Conditions in the Schedule (if any) form part of this Agreement. In the event of inconsistency between the Special Conditions and any other terms of this Agreement, the Special Conditions shall prevail to the extent of the inconsistency.

26.14 Dispute resolution

1. If a dispute arises in connection with this Agreement then a party may only deal with that dispute in the manner set out in this clause.
2. A party to a dispute which arises in connection with this Agreement may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
3. Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
4.  If despite the parties’ best efforts a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.
5. If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute. The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently require.

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