Terms and Conditions
HEALTH DIGITAL PTY LTD
TERMS AND CONDITIONS
By using services provided by Health Digital Pty Ltd ACN 607 302 125 as trustee for Health Digital Unit Trust (“Health Digital”), you hereby agree to Health Digital’s Terms and Conditions. Unless otherwise specified, in these Terms and Conditions, “we”, “us”, and “our” shall refer to Health Digital. The usage of “you” and “your” shall refer to the customer or client of Health Digital.
We reserve the right to amend these Terms and Conditions at any time.
1. Definition and Interpretation
Confidential Information means all statements, contracts or agreements, specifications, drawings, reports, documents, technology, knowledge, know-how and information relating to your business and any information relating to its advertising requirements (regardless of form) disclosed to or generated by us at any time either in contemplation of or otherwise in connection with these Terms and Conditions and either before or after the date of these Terms and Conditions. Reference to Confidential Information includes a reference to any parts of the Confidential Information.
Consultancy Services means any consultancy services on social and digital media use for and by physios provided by us to you.
Copyright includes copyright and rights of a like nature throughout the world (including any renewals and extensions of copyright where available).
Costs means the cost to you of us providing a Service or engaging a Supplier for the provision of a Service, including fees charged to us.
Engagement of Services means one of the following forms of engagement for production of Services by you:
(a) sending an online booking form to us to engage in any of the Services;
(b) contacting by telephone call(s) to any of our staff to engage in any of the Services; or
(c) Otherwise writing to us to engage in any of the Services.
which includes the details of the Services and fees for such Services.
Intellectual Property Rights means Copyright and neighbouring rights, all rights conferred by statute, common law or equity in or in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, and confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but excludes any non-assignable moral rights and similar non-assignable rights of any person.
Material means any material containing or relating in any way to any Confidential Information, and includes all Course-related materials, documents, notes, memoranda, reports, models, computer media, prototypes and other materials supplied to you by us.
Parties means the parties to these Terms and Conditions.
Permitted Purpose means the purpose of providing the Services to you in accordance with these Terms and Conditions.
Courses means courses or workshops on social and digital media use for physiotherapy which are either in person, online or customised to your requirements in accordance with these Terms and Conditions as described in the Engagement of Services.
Services means the work to be carried out by us during the Term, and any other service directed by you from time to time as agreed in the Engagement of Services being the provisions of the Courses and/or Consultancy Services.
Supplier means any third party which provides services to you or us in connection with or arising from these Terms and Conditions excluding any subcontractor engaged by us to provide the Services.
Term means the period stated in Clause 11.1.
Terms and Conditions means these Terms and Conditions.
Third Party means our officers, employees, financial, legal advisers and subcontractors, to whom we may disclose the Confidential Information under Clause 6.3.
These Terms and Conditions shall be interpreted in a way so as to give effect to the common intentions of the parties to enter into agreement in good faith.
2. Scope of these Terms and Conditions
2.1 Your rights not exclusive
Nothing in these Terms and Conditions limits our rights to provide Services to any other party.
2.2 Provision of Services
Subject to 2.3, these Terms and Conditions cover all Services requested by you from us during the Term.
2.3 Your Engagement of Services
The Engagement of Services forms part of these Terms and Conditions.
2.4 Standard and Scope of Services
We will use our best endeavours to:
(a) provide the Services with all the skill, care and diligence to be expected from a qualified, competent and experienced provider of the services of a similar scope and complexity as the Services;
(b) ensure that the Services are carried out by our employees or agents who are properly trained, experienced and accredited to perform those Services;
(c) use our best endeavours to ensure Suppliers perform their obligations to us in connection with these Terms and Conditions, including preventing any loss you may incur through the failure of Suppliers to perform their obligations properly;
(d) act in your best interests in connection with these Terms and Conditions; and
(e) provide the Services in a timely and efficient manner, and meet all reasonable deadlines set by you.
3. Performance Obligations
3.1 Our Obligations
(a) We will deliver the Services in accordance with the approved Engagement of Services.
(b) In providing the Services, we will disclose to you the terms of all agreements and arrangements with Suppliers or other agreements or arrangements entered into or in connection with or as a result of these Terms and Conditions.
(c) We will inform you promptly on any variation of the Services.
3.2 Your Obligations
During the performance of the Services, you must:
(a) co-operate with us as we reasonably require;
(b) provide accurate and complete information for our provisions of Services; and
(c) comply with these Terms and Conditions.
4.1 Payment obligations
Unless determined otherwise in accordance with these Terms and Conditions, you must pay us for the Services in accordance with the approved Engagement of Services.
4.2 Terms of payment
Unless agreed otherwise, all amounts due for provision of the Services under these Terms and Conditions are payable by you immediately upon Engagement of Services by way of:
(i) Providing your credit card details, bank account debit details, or using Pay Pal services upon Engagement of Services through our website;
(ii) Providing your credit card details or bank account debit details upon Engagement of Services through telephone call(s) with our staff; or
(iii) Otherwise provide credit card details or bank account debit details in writing to us upon Engagement of Services.
We will provide you with a receipt of payment within one (1) business days.
We will be entitled to charge interest on overdue payments at the rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic). Interest is to be calculated daily from the due date, continues until the overdue money is paid and is capitalized monthly.
4.4 Disputed invoices
If you dispute any amount stated on an invoice (Disputed Amount), you may request us to substantiate the expenditure of the Disputed Amount.
You will notify us of the Disputed Amount before payment is due.
5. Intellectual Property
5.1 Intellectual Property Rights
We own all Intellectual Property Rights existing or which may hereafter exist in any Materials subject to any third party licence agreements to which we are a party.
You are provided with certain Materials for the courses and workshop to use only for the Permitted Purpose. You acknowledge that we own all Intellectual Property Rights existing or which may hereafter exist in any Materials.
6.1 Maintenance of confidentiality and use of Confidential Information
Except as permitted by these Terms and Conditions, or, in any other case, on receiving your prior consent, we will:
(a) hold the Confidential Information in strict confidence and keep it secret;
(b) not disclose any Confidential Information to any person, including any employee or officer of ours (or allow or assist or make it possible for any person to observe or have access to any Confidential Information);
(c) not use any Confidential Information except for the Permitted Purpose;
(d) not use any Confidential Information to the competitive disadvantage of yours;
(e) not reproduce or record, or permit or cause any reproduction or recording of, any Confidential Information except to the extent necessary to provide a reasonable number of copies to the Third Parties for the Permitted Purpose;
(f) not make, or permit or cause to be made, any notes or memoranda based on or relating to any Confidential Information other than for the Permitted Purpose; and
(g) not disclose, or permit or cause to be disclosed, any opinion, summary or analysis of any Confidential Information to any person unless:
(i) that person is a Third Party;
(ii) the requirements of Clause 6.3 concerning that Third Party are complied with; and
(iii) the opinion, summary or analysis is required to be disclosed to that Third Party solely for the Permitted Purpose.
6.2 Exclusions from certain obligations of confidence and restriction on use
Clause 6.1 does not apply to:
(a) information after it becomes generally available to the public other than because of a breach of these Terms and Conditions or of any obligation of confidence by us;
(b) the disclosure of information in order to comply with any applicable Law or legally binding order of any court, government, semi-government authority or administrative or judicial body or the applicable rules of any stock exchange; or
(c) information after we receive it from a third person legally entitled to possess the information and provide it to us, to the extent that if that information is used, disclosed or otherwise dealt with in accordance with the rights or permission lawfully granted to us by that third person.
6.3 Disclosure to third parties
We may disclose Confidential Information to a Third Party if the disclosure is necessary solely for the Permitted Purpose or required by the laws.
7. Conflicts of Interest
We are not required to notify you if we propose to provide any services to any third party in relation to the promotion or advertising of that third party's activities or business which are in competition with your activities or business.
8. Assignment and subcontracting
You may not assign or transfer any of your rights or obligations under these Terms and Conditions without our prior written consent.
(a) Subject to paragraph (b), we may subcontract tasks.
(b) Notwithstanding paragraph (a),
(i) We may indicate in any Engagement of Services the detail of any subcontracting to be undertaken for a Service and may not subcontract tasks other than in accordance with that detail (without prior written approval by you);
(ii) We are not responsible and liable for the acts and omissions of any subcontractor that is subcontracted in relation to these Terms and Conditions; and
(iii) You may be required to make any payment to any subcontractor for any Service provided by that subcontractor.
Unless otherwise stated, all charges and other amount payable to us are exclusive of GST. If GST becomes payable on any supply made or provided on which GST is not payable at the date of this agreement, you will pay us an additional amount equal to the value of consideration for the supply multiplied by the prevailing GST rate.
Upon the occurrence of default by you in compliance with these Terms and Conditions:
(a) We may at our sole and absolute discretion suspend the provision of Services, vary, cancel or terminate these Terms and Conditions without prejudice to our rights contained in these Terms and Conditions.
(b) Without prejudice to any other right or remedy you shall indemnify us against any costs, fees, charges and disbursements ‘(inclusive of any GST)’ charged by any legal advisors engaged for the purpose of the collection or recovery of monies due and payable by you to us on a full indemnity basis and all such costs shall be recoverable by us as a liquidated debt.
11. Term and Termination
The term of these Terms and Conditions commences on the date of your Engagement of Services and shall continue until the Services have been completed and the payment obligations contained in Clause 4 of these Terms and Conditions are fully satisfied.
For avoidance of doubt:
(a) With respect to the Courses, the term will end at the completion of the course with final assessment (if any).
(b) With respect to the Consultancy Services, the term will end at the completion of the provision of the Consultancy Services to you and the satisfaction of the payment obligations contained in Clause 4 of these Terms and Conditions, uncles agreed otherwise.
11.2 Termination by either Party
(a) Either Party may terminate these Terms and Conditions immediately by notice to the other Party if:
(i) the other Party commits a material breach of these Terms and Conditions which is incapable of being remedied or, if the breach is capable of being remedied, the other Party fails to remedy the breach within seven days after being required in writing to do so;
(ii) the other Party becomes insolvent, enters into an arrangement or composition with its creditors, is placed in receivership or under management or becomes subject to a winding-up order of a court.
(b) In the event these Terms and Conditions are terminated for any reason other than as set out in Clause 11.2(a), you must obtain our prior written consent which is subject to our sole discretion.
11.3 Early Termination of the Courses
Unless we are responsible for the cancellation of Services, we are not required in any case to refund any amount paid by you to us in relation to any Engagement of Services regarding the Services in the event you terminate this Terms and Conditions or cancel your Services in accordance with clause 11.2.
Termination of these Terms and Conditions does not affect any accrued rights or remedies of either Party.
12. Limitation of Liability, Release and Indemnity
12.1 Release and Indemnity
You indemnify us and each member of our staff or agents from and against any liability or claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by you to us in relation to the Services or any other matters;
(b) your breach of these Terms and Conditions;
(c) your negligence or wilful misconduct or any member of your staff or agents;
(d) us delivering the Services in accordance with your instructions; and
(e) you and any member of your staff or agents purporting to cancel any Engagement of Services.
12.2 Limitation of Liability
(a) You acknowledge and agree that:
(i) Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising;
(ii) We have entered into these Terms and Conditions in our capacity as the trustee of the Trust and in no other capacity;
(iii) We are not liable to pay or satisfy any of its obligations under these Terms and Conditions, and have no liability to the other parties, except to the extent of our right of indemnity out of the assets of the Trust; and
(iv) notwithstanding section 197 of the Corporations Act, if those assets are insufficient, the other parties may not seek to recover any shortfall by bringing proceedings against us or any director personally and may not seek the appointment of a liquidator, administrator, receiver or similar person to us or prove in any liquidation, administration or arrangement of or affecting us.
(b) Each other party waives its rights and releases us from any personal liability whatsoever in respect of any loss or damage which cannot be paid or satisfied out of the assets of the Trust.
(c) Notwithstanding any other provisions of these Terms and Conditions, our liability is limited by the provisions of Clauses 12.2(a) to (b) (inclusive). In the event of any inconsistency with any other provision of these Terms and Conditions, these clauses are paramount.
(d) For the purpose of this Clause 12.2:
“Trust” means the Health Digital Unit Trust.
13. Dispute Resolution
13.1 The Parties agree that, in the event of any dispute arising out of or in relation to these Terms and Conditions, both Parties must use their best endeavours to resolve the dispute within 14 days of one Party having notified the other of the existence of the dispute. In the event that a dispute between the Parties remains unresolved after 14 days and legal proceedings have not been issued by either Party in relation to the matters the subject of that dispute, the Parties may escalate the matter to senior management of both organisations.
13.2 In the event that the dispute remains unresolved within 3 weeks after the discussions between senior management and legal proceedings have not been issued by either Party in relation to the matters the subject of that dispute, the Parties may refer the matter to an independent person for mediation.
13.3 Mediation must be conducted in Melbourne and each Party is equally liable for the costs of mediation and each Party must pay for their own costs of attending the mediation.
13.4 Nothing contained in this Clause 13 must be read to limit the right of either Party to initiate legal proceedings at any time.
We may give any written notice to you in connection with, or as required by these Terms and Conditions, by sending the notice to you via email or as indicated in the Engagement of Services in any of these ways of notice is deemed to be effective. You must notify us in writing of any change to the address you have specified in the Engagement of Services.
You may give any written notice to us to you in connection with, or as required by these Terms and Conditions, by sending the notice to:
14.2 No waiver
No failure to exercise nor delay in exercising any right, power, or remedy under these Terms and Conditions operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or future exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
14.3 No partnership
Nothing in these Terms and Conditions must be interpreted as constituting:
(a) the relationship of the Parties as a partnership, quasi-partnership, association or any other relationship in which one of the Parties may (except as specifically provided for in these Terms and Conditions) be liable generally for the acts or omissions of the other Party; or
(b) either Party as the agent or representative of the other Party.
14.4 No merger
The rights and obligations of the Parties will not merge on the completion of any transaction contemplated by these Terms and Conditions. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
14.5 Governing law and jurisdiction
These Terms and Conditions is governed by the Laws of Victoria. Each Party submits to the jurisdiction of courts exercising jurisdiction there, and waives any right to claim that those courts are an inconvenient forum.