Easyaid Pty Ltd ACN 602 795 513 (‘Company, We, Us, or Our’) T/A Emergcare
Terms and Conditions
1 SCOPE AND FEES
1.1 Engagement
(a) Company has provided, as attached to the terms and conditions (Ts&Cs) where it is:
(i) on our website located at emergcare.com.au (Website), mobile application (Apps) or any other software (‘collectively with the Website and Apps referred to as ‘Software’), upon selection of Services and Goods (if applicable) contained in a basket and upon being prompted to open a Customer’s account on the Software prior to proceeding to checkout; or
(ii) by email or on paper with interaction of Company for a customised group session or as determined by Company (Interaction), a quotation for the Services and Goods (if applicable) as set out in the particulars page of the proposal;
specifying, amongst other things, the scope of the Services and Goods (if applicable) to be provided to Customer (each a party), and an estimate of the fee involved in providing those Services and Goods (Proposal).
(b) These Ts&Cs form part of the Proposal as if incorporated into the Proposal (together the Agreement).
(c) Company does not represent that it will provide any Services and Goods unless they are included in the Agreement.
1.2 Acceptance
(a) The offer in the Proposal remains available for acceptance where it is:
(i) on our Software, until 11.59pm that day; or
(ii) by Interaction, for 7 days,
after which time the offer contained in the Proposal expires.
(b) Customer accepts the Agreement (Acceptance) by:
(i) accepting the Agreement;
(ii) signing the Agreement;
(iii) accessing any part of Company’s Website;
(iv) downloading and installing Company’s Software on a technological device;
(v) creating a Customer’s account on Company’s Software;
(vi) paying any Fee specified in the Agreement to Company;
(vii) completing an order for the delivery of the Services and Goods (if applicable) (Order);
(viii) their willing participation through oral, written, or electronic communication; or
(ix) accepting the delivery of the Services and Goods (if applicable) from the Company.
1.3 Fee
(a) The fee that are required to be paid to Company by Customer for Services and Goods (if applicable) are:
(i) fee for the Services and Goods;
(ii) delivery fee of Goods (if applicable) (Delivery Fee); and
(iii) payment processing fee applied by Company’s third-party payment gateway provider (Order Processing Fee); (collectively the ‘Fee’)
(b) Customer must pay the Fee (if applicable) for the Services and Goods (if applicable) prior to delivery to Customer:
(i) on our Software, upon proceeding with checkout and having been requested to complete payment by Company’s third-party payment gateway provider to complete the Order; or
(ii) by Interaction, within 7 days of Proposal’s date;
(c) Customer will pay the Fee (if applicable) to the Company’s third-party payment gateway provider through the Company’s Software or by customised link under Interaction, where either:
(i) Customer submits details of a credit, corporate, debit, prepaid, card that may or may not be stored on a mobile wallet application (Payment Card); or
(ii) where the details of a Payment Card has been previously provided by Customer to Company’s third-party payment gateway provider and has opted to save a preferred Payment Card, by way of a token (‘Token’) stored on the Company’s Software as part of the Customer’s account details. The Token does not contain any of the Customer’s personal financial information but rather a reference link to the Customer’s financial information retained by Company’s third-party payment gateway provider as directed and agreed by Customer. Customer may opt to cancel the Token with the Company’s third-party payment gateway provider at any time by requesting for the removal of the stored preferred Payment Card from the records of the Company’s third-party payment gateway provider. Company adheres to the privacy of its Customer in accordance with its Privacy Policy under this Agreement.
(d) Company will apply Fee for the Services unless Customer provides at least 2 days’ notice in writing to Company except where Customer provides written confirmation that Customer went into labour preventing participation in the delivery of Services.
(e) Company may offset any Fee (if applicable) payable by Customer to Company with any amount payable by Company to Customer under this Agreement.
2 CUSTOMER ACCOUNT
2.1 Application
(a) Company requires Customer to create a Customer’s account on the Company’s Software to access the provision of its Services and Goods (if applicable).
(b) Customer must:
(i) as a natural person, be at least 18 years of age; and
(ii) comply with the representation and warranties under clause 8 of this Agreement;
to be eligible to apply for a Customer’s Account on the Company’s Software for its Services and Goods (if applicable).
(c) Customer must not permit any person who is a minor to use the Services and Goods (if applicable) and the Customer will be solely responsible and liable for any unauthorised use.
(d) Unless permitted in writing by Company, each Customer may only possess one Customer Account.
(e) In establishing and setting up a Customer’s account, Customer must create a password, or other secure login method to access the Software for the provision of the Services and Goods (if applicable). Customer must also provide valid Payment Card details in respect of the Fee due for an Order. Amongst other Customer’s information that will be required by Company will be the Customer’s full name, entity name, and details such as ABN and ACN, date of birth, age, address, mobile phone number, email address, and any relevant medical history (to ensure Customer’s ability to participate in the delivery of its Services).
In as much as Company complies with the privacy of its Customer, Customer is solely responsible for the safeguard of the account details including login details and password and preventing any third-party from accessing the username, password, email (a) account, mobile phone, and technological device. Where a third-party gains access to Customer’s account details and proceeded to place an Order for the Services and Goods on the Company’s Software, Customer will be liable for any Order of Items paid with the Token of the Payment Card details. Company is not liable for any losses suffered by Customer unless there is a breach of Privacy by Company in failing to secure Customer’s login details and password.
(b) Customer is responsible to maintain and to ensure that all details contained on Customer’s account are accurate, complete, and up to date information. Any failure by Customer to ensure of this may result in access to the provision of Services and Goods (if applicable) being suspended or not being accessible to Customer.
(c) Customer agrees and consents to Company sending of commercial electronic messages (including email, SMS, or push notifications) as part of the normal Company’s business operation for the provision and delivery of its Services and Goods (if applicable). Customer may opt out of receiving commercial electronic messages from Company at any time from Customer’s account subscription preferences. Customer further acknowledges that opting out from receiving commercial electronic messages may impact Customer’s experience in dealing with the Company for the provision of the Services and Goods (if applicable).
2.1 Suspension and Closure
(a) Customer may voluntarily close a Customer’s account at any time through the Company’s Software or by contacting Company.
(b) Company may suspend Customer access to a Customer’s account, or close it permanently, where Company believes that Customer’s account has been used by a third party.
(c) Company will equally close a Customer’s account where Company holds the view that Customer:
(i) has breached the T&C’s, Proposal, and Agreement;
(ii) does not, or is not likely to, qualify under applicable law or standards and policies of Company to access and use the Company Software in a manner consistent with the delivery of its Services and Goods (if applicable);
(iii) has not acted lawfully with respect to the Company’s Services and Goods (if applicable); and
(iv) is abusing the Services and Goods (e.g. by applying for refunds or credit to which Company does not consider Customer is entitled, making repeated unreasonable complaints, mistreating Company’s staff, or any other good reason).
(d) If Company closes Customer’s account permanently, Company may refund any remaining account credit validly obtained by applying a credit to Customer’s Payment Card, or if that is not possible for any reason, by way of a bank transfer using bank details provided to Company by Customer.
3 PROVISION OF SERVICES AND GOODS
3.1 Company’s rights and obligations
(a) Company will commence the provision of Services and Goods (if applicable) on the Commencement Date, subject to any variation agreed by the parties, and provide the Services and Goods (if applicable) during the Term.
(b) Company adheres to the privacy of Customer in accordance with its Privacy Policy under this Agreement.
(c) Company, may at its sole discretion, determine the most suitable manner how and when it will supply and deliver the Services to Customer:
(i) through its software platforms;
(ii) at Company’s nominated address location (Company’s Location); or
(iii) at Customer’s nominated address location as set in the Customer’s account (Customer’s Location), subject to a request by Customer through Interaction with Company. Customer is liable for the Disbursement Costs for the delivery of Services at Customer’s Location.
(d) Company, may at its sole discretion, determine the most suitable manner how and when it will supply and deliver Goods (if applicable) for Customer’s sole use at Customer’s Location.
(e) Company may follow all reasonable directions given by Customer for the provision of Services and Goods, subject to Customer paying for any reasonable additional costs or expenses incurred by Company.
(f) Any failure by Customer to make payment of any amount of the Fee, Company may, at its discretion:
(i) decline to provide the requested Services and Goods; or
(ii) postpone or cancel the Services and Goods.
(g) Customer acknowledges that Company will not be liable for any loss or damage arising as a result a cancellation under clause 3.1(f).
(h) Company does not warrant that it will be able to provide the Services and Goods at specific times, unless expressly specified in the Proposal or otherwise by Company in writing.
(i) Company will ensure that the Services comply with all applicable laws, regulations, standards, and guidelines in accordance with them;
(i) Centre of Perinatal Excellence (COPE);
(ii) Australian Resuscitation Council;
(iii) Asthma Foundation;
(iv) Australian Society of Clinical Immunology and Allergy; and
(v) VET Quality Framework (for accredited courses only).
(j) Nothing in the Agreement will affect the Company’s right to use its own judgment with reasonable care and skills in order to achieve compliance with any laws, regulations, code, standards, directions, resolutions or other obligations in relation to the delivery of its Services and Goods to Customer.
3.2 Customer’s obligations
(a) Customer must:
(i) disclose any physical, mental, and medical condition that may impair Company to provide its Services in accordance with the standards set out in clause 3.1(i);
(ii) ensure that it has the required technological device as well as software or apps to participate and obtain delivery of the Services and Goods from Company. Company does not make any representation nor guarantee that its Software and Services, or any portion thereof, will function on the said hardware or technological device of Customer;
(iii) ensure that it has and must maintain a stable and active internet connection service or data network access at Customer’s Location to enable the delivery of the Company’s Goods and Services. Customer is responsible and liable for the rates and fees payable for accessing the internet connection service or data network access;
(iv) co-operate with Company as reasonably required to be given access to Customer’s Location where Customer has requested for a customised group training session by Company;
(v) ensure that Customer’s staff and agents co-operate with and assist Company for the delivery of Services and Goods;
(vi) immediately notify Company of any issues with Company’s Goods, any inspection, comments, report by any authority in relation to or concerning Company’s Goods;
(vii) supply and pay for transportation, facilities, and electricity for the operation and delivery of Company’s Services where Customer has requested for a customised group training session by Company at Customer’s Location;
(viii) not overload, alter, deface, misuse, abuse, use the Goods contrary to intended use, cause damage to Company’s Goods;
(ix) ensure the health and safety of the Company’s representative and safety of the Company’s Goods from damage; and
(x) ensure that no contaminated, prohibited, combustible, liquid waste, prescribed waste, highly flammable, or explosive waste is placed in Company’s Goods or otherwise any materials that may cause harm to or endanger the health and wellbeing of Company’s representative (collectively the ‘Customer’s Services’) .
(b) If Customer does not comply with clause 3.2(a), then any additional costs and expenses which are reasonably incurred by Company will be paid by Customer
(c) Company will not be responsible and liable for any delay in provision of Customer’s Services resulting from a breach of clause 3.2(a).
(d) Company will not be responsible and liable for any loss or damage arising from termination of Services resulting from a breach of clause 3.2(a).
(e) If Customer cancels the Agreement after Acceptance and prior to the delivery of Services and Goods, Customer must pay to Company the cost (if any) of any disbursements and any Company personnel or contractors reasonably procured in anticipation of commencing and providing the Services and Goods, unless Customer goes into labor (in such case, the Customer’s participation for the delivery of the Services may be re-scheduled).
(e) Customer is responsible and liable for any damage, and loss caused to Company’s Goods whilst in the Customer’s possession (other than for fair “wear and tear”).
4 PAYMENT
4.1 Invoices
Company will issue invoices to Customer as set in the Proposal and Customer must pay the Fee prior to delivery and completion of Services and Goods.
4.2 Payment obligation
(a) Customer must pay each Company invoice in full within the period stipulated on the invoice. If the invoice does not list a payment date, Customer must make full payment to Company within 7 days from the date of its issue.
(b) Customer must pay each invoice in full without set-off, deduction or counterclaim and Customer acknowledges that this clause may be produced in bar of any proceeding for set-off, deduction or counterclaim.
4.3 Failure to pay
If Customer does not pay Company in accordance with this clause 4, Company is entitled to do any or all of the following:
(a) apply a late payment fee in the amount specified on the invoice;
(b) charge interest on the outstanding account at the Default Rate from the Default Date until the account and any interest and costs are paid in full;
(c) require Customer to pay, in advance, for any Services (or any part of the Services) and Goods, which have not yet been performed;
(d) withhold the performance any further Services and supply of Goods and/or exercise a lien over the Services and Goods in the control, possession and custody of Customer relating to the Proposal that remains unpaid until payment is made in full to the satisfaction of Company; and
(e) terminate this Agreement under clause 10.
If Customer or any third party issues a cheque for payment of an invoice which is dishonoured, Company may:
(f) refuse to provide any further Services and Goods until full payment is received, including any bank charges Company incurred as a result of the dishonoured cheque; and
(g) treat the dishonoured cheque as a repudiation and elect to either terminate or affirm the provisions of the Agreement and in either case, Company will be entitled to seek compensation from Customer.
4.4 Further costs
(a) If an outstanding account is referred to a law firm and/or debt collection agency for recovery, the Customer will be liable for it.
(b) (i) any recovery costs incurred; and
(ii) any commission payable by Company.
If an outstanding account is referred to a legal practitioner, the Customer must pay all costs reasonably claimed by the legal practitioner on a solicitor/client basis.
5 LIMITATION OF LIABILITY AND INDEMNITIES
5.1 Force Majeure Event
(a) Each party releases the other party from any liability for any Claim arising as a result of delay or failure to provide the Services and Goods or to comply with this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party (including a Force Majeure Event), and which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, provided that the affected party has used all reasonable endeavours to promptly cure such an event or circumstance.
(b) If by reason of a Force Majeure Event, the delay or non-performance of Company’s obligations continues for more than 90 consecutive days, Company may refund any monies paid for Services that have not been provided.
5.2 Statutory warranties
(a) The provisions of this Agreement do not exclude or limit the application of any laws, (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene those laws or cause any part of this Agreement to be void.
(b) To the maximum extent permitted by law, the provisions of this Agreement exclude all implied conditions and warranties except any implied condition or warranty, the exclusion of which would contravene any laws or cause this condition to be void.
5.3 Limitation of Liability
(a) To the extent permitted by law, and subject to clauses 5.3(c) and (d), the liability of Company in connection with the provision of the Services and Goods whether arising in contract, tort, negligence, breach of statutory duty or otherwise will be limited to:
(i) the re-supply of the Services and Goods;
(ii) the payment of the costs of having the Services and Goods provided again, the amount of which must not exceed the Fee; or
(iii) the reimbursement of any amounts paid by Customer to Company (excluding Order Processing Fee) for the defective Services and Goods.
(b) Customer releases Company from any liability for any Claim arising as a result of delay or failure to provide the Services and Goods or to comply with this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party (including a Force Majeure Event), and which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, provided that the affected party has used all reasonable endeavours to promptly cure such an event or circumstance.
(c) To the fullest extent permitted by law, Company will not be liable for any Consequential Loss of Customer in contract, tort, negligence, breach of statutory duty or otherwise.
(d) Company will not be liable to Customer to the extent that Customer or its agents, employees or subcontractors have caused or contributed to any loss or damage.
5.4 Indemnity
(a) Customer will indemnify, keep indemnified and hold Company harmless from and against all Claims and Loss or damage:
(i) to the extent caused or contributed to by Customer; and
(i) caused by Company’s Goods used at Customer’s Location.
6 INTELLECTUAL PROPERTY
6.1 Ownership of IP Rights
(a) Each party will retain the rights, title, and interest in its Existing IP Rights.
(b) Customer agrees that Company may acquire under license intellectual property from a third-party partner program.
(c) Customer agrees that Company will own all Developed IP Rights, and that all right, title and interest in the Developed IP Rights will vest beneficially in favour of Company and, to the extent this does not occur, Customer assigns them (by way of present assignment) to Company.
6.2 Licensing of IP Rights
(a) Customer agrees and acknowledges that, subject to full payment of Fee, Company grants Customer a non-exclusive royalty free licence to use its Developed IP Rights contained in its Services for the intended purpose for which it was developed for Customer’s sole use and exclusive benefit for training and for no other purpose except as agreed to by the parties.
(b) Customer must not use any intellectual property obtained by Company from its third-party partner program contrary to the permitted use under the licence.
(c) Customer must obtain the written consent of Company where Customer intends to make use of the Developed IP Rights for any other purpose other than the intended purpose.
6.3 IP Rights Warranties
(a) Each party warrants that it will not, in any way, infringe or allow any other person to infringe the other party’s Existing IP Rights.
(b) Customer warrants that it will not, in any way, infringe or allow any other person to infringe the Company’s Developed IP Rights.
(c) Customer warrants that it will not, in any way, infringe or allow any other person to infringe any licence or intellectual property rights obtained by Company from its third-party partner program. Customer indemnify Company from any Claims, Loss or damage that may arise from a breach or infringement of either the licence or intellectual property rights of the Company’s third-party partner program.
7 PRIVACY AND CONFIDENTIAL INFORMATION
(a) Customer acknowledges and agrees Company may collect Confidential Information from Customer.
(b) Customer agrees to provide Company will all necessary records, including Confidential Information, as reasonably required by Company for the purpose of performing the Services and Goods.
(c) Confidential Information received by Company in the course of providing the Services and Goods will not be disclosed to persons other than Customer except as disclosed in the Privacy Policy or as required or allowed for by law or with Customer’s express written consent.
(d) Each party must ensure that to the extent it shares any data with any other person, it is compliant with all relevant privacy and data protection laws and regulations.
8 REPRESENTATIONS AND WARRANTIES
8.1 By each party
Each party represents and warrants to the other party that:
(a) the execution of the Agreement has been properly authorised by all necessary corporate or other action;
(b) it has full power and authority to execute the Agreement and to perform or cause to be performed its obligations under the Agreement;
(c) the Agreement constitutes a legal, valid, and binding obligation on it;
(d) the Agreement does not conflict with, or result in the breach of, or default under, the provision of the constitution or other constituent documents of the party or any material term or provision of any agreement or any writ, order or injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound.
(e) it is solvent, no controller, administrator, or statutory manager has been appointed in respect of it or in respect of any of its assets and it has not entered into any voluntary arrangement with one or more creditors; and
(f) if it is a trustee of a trust:
(i) it is the sole trustee of the trust and no action has been taken to remove or replace it;
(ii) it has the power under the trust deed to execute and perform its obligations under this Agreement;
(iii) all necessary action has been taken to authorise the execution and performance of this Agreement under the constituent documents of the trust;
(iv) the Agreement is executed and all transactions relating to this Agreement are or will be entered into as part of the due and proper administration of the trust and are or will be for the benefit of the beneficiaries;
(v) no controller, liquidator or statutory manager has been appointed in respect of the trust or any part of the assets or undertaking of trust; and
(vi) to its knowledge, there are no actions, Claims, proceedings or investigations pending or threatened against it which could have a material effect upon the subject matter of this Agreement
8.2 Customer
Customer warrants to Company that Customer’s Location is a safe and suitable facility to deliver the Company’s Services and Goods.
9 GST
(a) Unless the contrary intention appears, any amount specified in the Proposal is exclusive of GST.
(b) For the purposes of this clause, the terms words defined in the GST Law, have the same meaning in this Agreement.
(c) If GST has any application to any supply made under or in connection with this Agreement, the party making the supply (for the purposes of this clause only, Supplier) may in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from the recipient of the supply (for the purposes of this clause only, Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
(d) Any additional amount on account of GST recoverable from the Recipient under this clause shall be calculated without any deduction or set-off of any amount and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under this Agreement.
(e) The Supplier must issue to the Recipient a tax invoice and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.
(f) Where an adjustment event in relation to a supply under this Agreement has occurred, the Supplier must issue an adjustment note to the Recipient no later than 14 days after that adjustment event.
10 TERMINATION
10.1 Termination for breach
Either party may terminate the Agreement by giving 7 days’ notice in writing to the other, if the other party has:
(a) failed to comply with the terms and conditions of the Agreement; and
(b) failed to rectify that breach, to the satisfaction of the notifying party, following the expiration of 7 days’ notice of the breach.
10.2 Immediate termination
Company may terminate the Agreement immediately on notice to the Customer if:
(a) the Customer
(i) is no longer able to perform its obligations under this Agreement, including by failing to pay any Fee when due to Company;
(ii) where it is a body corporate, any officer or employee:
A. is charged with or found guilty of any criminal offense;
B. by their conduct, act or omission brings the Company or any of its officers, employees, or agents into disrepute; or
C. commits fraud or is alleged to have committed any impropriety in their financial dealings; and
(iii) breaches a material term (or persistently breaches any term) of this Agreement which is incapable of remedy; or
(a) the Company is unable to perform its obligations under this Agreement as a result of TPD or death of the Company Affiliate.
10.3 Consequences of termination
Upon termination of this Agreement:
(a) any Fee, expenses or reimbursements (whether invoiced or not) payable by Customer to Company in respect of any period prior to the termination must be paid by Customer within 7 days of termination;
(b) each party retains the rights it has against the other party, including in respect of any breach of this Agreement that arose before termination or out of the events that caused termination;
(c) the rights and obligations of each party under this Agreement which are expressed to survive termination will remain in force;
(d) neither party may represent to any other person, whether directly or indirectly, that it remains associated with the other party; and
(e) Customer:
(i) provides a right of access to Company for the collection of Company’s Goods at an agreed reasonable time; and
(ii) make good of or pay for any damage to Company Goods within 7 days of Termination;
11 GENERAL
11.1 Assignment
The company may assign its rights and obligations under the Agreement to a third party without the consent of Customer. Customer may not assign or transfer its rights and obligations under the Agreement to a third party unless it has obtained Company’s written consent.
11.2 Amendment
The Agreement may only be amended with Company’s written consent.
11.3 Counterpart
The Agreement may be executed in any number of counterparts, all of which to be taken together constitute one and the same document. This executed counterpart by each party may be exchanged with the other party in person, by post, facsimile, or electronic means.
11.4 Severability
If any provision in the Agreement is void, invalid, illegal or unenforceable the existence, validity, legality and enforceability of the residual provisions will not be affected, prejudiced or impaired and the offending provision will be deemed severed from the Agreement.
11.5 Waiver
No failure or delay by a party in exercising any right, power or privilege in the Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
11.6 Joint and several liability
If more than one person is Customer, each will be jointly and severally liable, regardless of the person to whom the invoice is addressed to and regardless of which person received the benefit of the Services and Goods.
11.7 No reliance
Each of the parties acknowledges that, in entering into the Agreement, it does not do so in reliance on any representation, warranty or other provision except as provided in writing. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
11.8 Priority of documents
(a) Subject to clause 11.8(b), if there are any inconsistencies between the Agreement and any other document, the Agreement will prevail.
(b) If there are inconsistencies between these Ts&Cs and the Proposal, the Ts&Cs will prevail.
11.9 Survival of obligations
The obligations accepted by the parties under clauses 5, 6, and 7 survive termination or expiry of the Agreement or the provision of the Services and Goods.
11.10 Electronic Transaction
Each party consents to the execution of this Agreement by electronic communication, as contemplated by the Electronic Transactions (Victoria) Act 2000 (Vic).
11.11 Application of law
The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.12 Governing law
(a) The Agreement will be governed by, and construed in accordance with the laws in Victoria, Australia.
(b) The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.
12 DEFINITIONS AND INTERPRETATION
12.1 Definitions
In these Ts&Cs, unless the context otherwise requires capitalised works have the meaning set out below or in the schedule:
(a) Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
(b) Commencement Date means the earlier date of either, Customer has:
(i) executed the Agreement; or
(ii) provided Acceptance under the Agreement.
(c) Confidential Information means all information (whether written or oral) disclosed by a party to another party which is either:
(i) identified as confidential by the discloser at the time of disclosure; or
(ii) of a nature which should reasonably be regarded by the recipient as confidential,
but does not include information which:
(iii) is in the public domain without fault of the discloser;
(iv) was in the recipient's lawful possession at the time of disclosure;
(v) is disclosed to obtain the consent of any third party to any requirement of, or to any act pursuant to, this Agreement; or
(vi) is required by law, by an order of a court or tribunal or by the requirements of a stock exchange to be disclosed;
(d) Consequential Loss means all indirect, special and/or consequential losses, damages, costs or expenses of any nature whatsoever incurred or suffered, including any economic loss or other loss of turnover, any loss of reputation or goodwill, any loss of value of intellectual property, any legal costs and other expenses of any nature whatsoever in respect of them and exemplary or punitive damages;
(e) Customer means any named natural person or entity as set out in the Proposal or who has registered a Customer’s account on the Company’s Software and proceeded with completing payment of Fee for an Order for supply and delivery of Services and Goods by Company;
(f) Customer’s Location means Customer’s premises as set out in the Proposal, or any such other premises as may be agreed upon by Company and Customer.
(g) Default Date means the date that payment is due;
(h) Default Rate means the lesser of 10.5% p.a. and the applicable Penalty Interest Rate;
(i) Developed IP Rights means any IP Rights developed during the Term in the course of providing the Services;
(j) Existing IP Rights means the IP Rights of each party existing as at the Commencement Date, including but not limited to;
(i) IP Rights from previous practitioners and employees of the Company; and
(ii) other third-party providers, software or otherwise;
(k) Fee means the fees as set out in the Proposal;
(l) Force Majeure Event means an event, or series of events, outside the reasonable control of Company including (but not limited to) death or TPD of a Company Affiliate, fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, pandemic, government actions, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination or any other catastrophes;
(m) Goods means any goods supplied by Company to Customer Location as set out in the Proposal;
(n) GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(o) IP Rights means all present and future statutory or other intellectual property rights which exist or may in future exist in respect of:
(i) any inventions, innovations, patents copyright, confidential information and know-how; and
(ii) all rights with respect to intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of July 1967,
including, but not limited to coding, programmes, designs, briefs, materials, manuals, records, procedures, systems, marketing techniques, plans or specifications;
(p) Loss means any Claims, notice, demand, action, proceeding, litigation, investigation, audit, judgment, damage, loss, cost, expense, or liability however arising whether based in contract, tort, or statute and whether involving a third party or otherwise, diminution in value or deficiency of any kind or character (whether or not known or asserted on or before the date of this agreement or completion), including all legal and other expenses reasonably incurred in connection with investigating or defending any claims or actions, whether or not resulting in any liability and all amounts paid in settlement of claims or actions;
(q) Order Processing Fee means the fee payable by Customer for the use of third-party payment gateway and financial institution services to process payment of an Order through the Company’s Software, which is currently set at 1.1% of Order total price including the Delivery Fee (if applicable) + AUD$0.30 per transaction, but may be varied from time to time by Company as set out in any future versions of the T&C’s available on Company’s Website and Software;
(r) Proposal means the proposal as defined in clause 1.1(a) and the page referred to as the “Particulars Page” to this Agreement;
(s) Services means the services provided by Company as set out in the Proposal, which may include, but is not limited to, first aid accredited and non-accredited educational and training courses such as perinatal fist aid, paediatric first aid, provide cardio pulmonary resuscitation, provide first aid, provide emergency first aid response in an education & care setting, strong start for families program, or as as may be varied by Company from time to time.
(t) Term means the term set out in the Proposal. In the absence of any expressed period for the Term being contained in the Proposal, this Agreement will take effect from Commencement Date till the date that the Services and Goods (if applicable) have been supplied and delivered by Company to Customer; and
(u) TPD means the total and permanent disability (whether physical or mental) for a period (or anticipated period) of at least three months.
12.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to any law includes any subordinate legislation as amended, replaced, re-enacted or consolidated;
(b) the singular includes the plural and vice versa;
(c) where a party is to determine a matter, they are to do so acting reasonably;
(d) a reference to ‘person’ includes:
(i) a corporation, partnership, joint venture, association, authority, trust, state or government authority; and
(ii) their executors, administrators, substitutes, successors and permitted assigns;
(e) a reference to a clause or schedule is to a clause or schedule of this Agreement;
(f) headings are included for convenience only and do not affect interpretation;
(g) a reference to any Agreement or document is to that Agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(h) a reference to a matter being written includes that matter being in any mode of representing or reproducing words, figures or symbols capable of written form;
(i) a reference to dollars or $ is to Australian currency;
(j) if a period of time starts from a given day (or event), it is calculated exclusive of that day (or the day the event occurs);
(k) “includes”, “including”, or similar expressions, are not words of limitation.
12.4 Neutral interpretation
Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it.
