Parties
CLINIC ACADEMY PTY LTD ABN 77 669 687 101 trading as Clinic Academy of 196-200 Hall St Spotswood 3015
1 Definitions
Refer Schedule 1 for definitions of terms used within this Agreement.
2 Provision of Services
(a) CLINIC ACADEMY will provide the Services to the Account Holder. This is in consideration for the Account Holder paying the Services Fee to CLINIC ACADEMY, subject to the provisions of this Agreement.
(b) Subject to prior agreement in writing between CLINIC ACADEMY and the Account Holder, CLINIC ACADEMY may perform Additional Services at the Additional Hourly Rate, subject to the provisions of this Agreement.
3 Term
This Agreement commences on the Commencement Date and continues for an initial period equal to the Initial Term, unless terminated in accordance with any express right of termination set out in this Agreement.
4 Payment
(a) CLINIC ACADEMY may invoice the Account Holder for the amount of the Services Fee and/or the Additional Hourly Rate (as applicable) ..
(b) The Account Holder agrees that CLINIC ACADEMY may debit the credit card, nominated direct debit or other payment method (for example, Stripe account) for the amount of the invoice upfront on the Commencement Date.
(c) Any consideration or amount payable under this Agreement, including any non-monetary consideration is exclusive of Taxes unless stated otherwise (if applicable).
5 Consultant Tools of Trade
The Account Holder understands that CLINIC ACADEMY has developed the CLINIC ACADEMY Tools of Trade. CLINIC ACADEMY may rely upon, utilise, and include CLINIC ACADEMY Tools of Trade in the Services and any Additional Services performed under this Agreement. CLINIC ACADEMY retains all rights, title, and interest, including all copyrights, patent rights, and trade secret rights in CLINIC ACADEMY Tools of Trade. CLINIC ACADEMY assigns Account Holder a non-exclusive license in the CLINIC ACADEMY Tools of Trade only for the duration of the Agreement.
6 Access to CLINIC ACADEMY Online Private Members Area
The Account Holder agrees that the Private Members Area, including any content contained therein and any usernames or passwords, may only be used by the Registered Users as permitted herein and may not be shared, sold or otherwise distributed without CLINIC ACADEMY’s express written consent. The Account Holder will be responsible for the security of any Registered User usernames and passwords.
7 Intellectual Property Rights
(a) The Account Holder acknowledges and agrees that materials and other content disclosed to it or any of its agents or assigns by CLINIC ACADEMY in the course of provision of the Services and any Additional Services or otherwise (including but not limited to the CLINIC ACADEMY Tools of Trade) and all Intellectual Property Rights therein (CLINIC ACADEMY IP):
(i) constitutes valuable proprietary information that is protected by applicable intellectual property and other laws; and
(ii) is the exclusive property of CLINIC ACADEMY and will remain the exclusive property of CLINIC ACADEMY.
(b) CLINIC ACADEMY grants the Account Holder a limited, personal, non-exclusive, non-transferable licence for it to allow the Registered Users to access CLINIC ACADEMY IP for the Account Holder’s own personal and non-commercial use.
(c) The Account Holder and its representatives, agents and employees (including but not limited to the Registered Users ) must not, without CLINIC ACADEMY’s written consent:
(i) Adapt, create derivative works from or merge the template of the CLINIC ACADEMY IP;
(ii) Use the CLINIC ACADEMY IP for any purpose other than the specific purpose for which CLINIC ACADEMY has provided it;
(iii) Reverse engineer, disassemble, alter, enhance or decompile the CLINIC ACADEMY IP;
(iv) Offer competing services to the Services and/or the Additional Services based upon any information in the CLINIC ACADEMY IP;
(v) Remove any copyright notice or author designation from; or
(vi) Distribute, lend, modify, edit, copy, sell, distribute, duplicate, lease, reproduce, resell, transfer, assign, or sublicence the CLINIC ACADEMY IP, or in any way exploit or allow any other person to use it except for its intended use.
8 Confidentiality and privacy
(a) Each party acknowledges that the Confidential Information of the other party is valuable to the other party and, subject to clause 8(b), undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
(b) A party may disclose Confidential Information of the other party:
(i) to its legal and professional advisers in order to advise that party in connection with the exercise of rights and performance of obligation under this Agreement;
(ii) to any representative of that party, provided that the disclosure is made for the purpose of this Agreement and the party imposes an obligation upon the representative to maintain the confidentiality of that material; and
(iii) to the extent disclosure is required by an applicable law or court order, provided that the disclosing party gives reasonable advance notice of such disclosure to the other party in order that the other party has an opportunity to attempt to preclude or limit such disclosure.
9 Account Holder Conduct & Non-Disparagement
The Account Holder agrees that it will not engage in any conduct or communications with a third party, public or private, designed to disparage or otherwise bring into disrepute CLINIC ACADEMY. Neither Account Holder nor any of Account Holder’s associates, employees or affiliates will directly or indirectly, in any capacity or manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, CLINIC ACADEMY or any of its Services, Additional Services, programs, members, owner directors, officers, Affiliates, subsidiaries, employees, agents or representatives.
10 Warranties
(a) Each party warrants and represents that:
(i) it has full power and authority to execute the Agreement and to perform and observe all of its terms and provisions; and
(ii) the Agreement has been duly executed by each party and is a legal and binding agreement of each party enforceable against it in accordance with the terms of the Agreement.
(b) The Account Holder warrants and represents to CLINIC ACADEMY that:
(i) it will comply with all laws and the requirements of any relevant authority or regulator;
(ii) it has and will continue during the Term to have all licences, authorisations, consents, approvals and permits required by all applicable laws in order to perform its obligations under this Agreement, and otherwise complies and will continue to comply with all laws applicable to the performance of those obligations;
(iii) CLINIC ACADEMY makes no representations, warranties or guarantees in relation to or in connection with the Services and/or the Additional Services other than to the extent set out in this Agreement.
(iv) CLINIC ACADEMY does not guarantee the Account Holder, the Registered Users or any other party will obtain any specified results using any of CLINIC ACADEMY’s ideas, tools, strategies or recommendations and nothing in the Services and/or the Additional Services is a promise or guarantee of such results, future projections, forward looking statements or assurances.
(v) it will supervise and control the use of the Services by the Registered Users in accordance with the terms of this Agreement; and
(vi) it will ensure the Registered Users are made aware of and comply with the terms of this Agreement; and
(vii) it will ensure that no parties associated with it (including employees, agents, contractors or any other related parties) other than the Registered Users have access to the Services.
11 Liability & Indemnity
(a) The liability of CLINIC ACADEMY and any of its agents or assigns is limited to the maximum extent permitted by law. To the extent that CLINIC ACADEMY is unable to exclude liability, CLINIC ACADEMY’s liability is limited to (at CLINIC ACADEMY’s option):
(i) supply of equivalent goods or services; or
(ii) a refund of the price paid by the Account Holder for the goods or services (or both).
(b) To the maximum extent permitted by law, CLINIC ACADEMY is not liable for:
(i) any Loss or damage to the goods or services (or both) resulting from any act or omission on the part of the Account Holder, its employees, contractors or agents;
(ii) any special, consequential, direct or indirect Loss or damage incurred by the Account Holder or any other party (including but not limited to lost profits) arising from or in any way connected with this Agreement or any goods or services acquired by the Account Holder from CLINIC ACADEMY, whether such Loss or damage is alleged to arise from breach of contract, express or implied warranty, or in tort, including without limitation, negligence, failure to warn or strict liability.
(c) Subject to Clauses 11(a) and 11(b), the Account Holder is liable for and indemnifies CLINIC ACADEMY against all liabilities, claims, Loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis determined without taxation, assessment or similar process and whether incurred or awarded on or against CLINIC ACADEMY) arising from or incurred in connection with the Account Holder’s use of the goods or CLINIC ACADEMY’s provision of the Services and/or the Additional Services.. Each indemnity under this Agreement is a continuing obligation, separate and independent from the Account Holder’s other obligations and survives termination and completion of the purchase of the goods and performance of the Services and/or the Additional Services.
(d) Subject to Clauses 11(a) and 11(b), the Account Holder shall indemnify CLINIC ACADEMY for any loss, damage or expense incurred by CLINIC ACADEMY, to the maximum extent permitted by law, for any breach of this Agreement by the Account Holder.
12 Termination
(a) Without limiting any other right of termination at Law or otherwise, CLINIC ACADEMY may terminate this Agreement and suspend access to the Private Members Area:
(i) immediately by giving written notice if:
(A) the Account Holder breaches a provision of this Agreement and does not cure that breach within 7 days of the date on which CLINIC ACADEMY provides the Account Holder with a written notice identifying the breach and requesting that it be cured;
(B) the Account Holder breaches a provision of this Agreement and the breach cannot, in CLINIC ACADEMY’s reasonable opinion, be cured;
(C) it is exercising an express right to terminate accrued elsewhere under this Agreement; or
(D) the Account Holder is subject to an Insolvency Event.
(b) Termination, completion or expiry of this Agreement for any reason does not extinguish or otherwise affect:
(i) any rights of CLINIC ACADEMY against the Account Holder which accrued prior to termination or out of the events causing such termination including damages or other remedies to which CLINIC ACADEMY may be entitled; or
(ii) the provisions of this Agreement which by their nature survive termination.
13 General
13.1 Entire agreement
This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.
13.2 Variation
No variation of this Agreement is effective unless made in writing and signed by each party.
13.3 Severability
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.
13.4 Assignment, novation and other dealings
The Account Holder must not assign or novate this Agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of CLINIC ACADEMY.
13.5 Force Majeure
The Account Holder releases CLINIC ACADEMY from any claim, liability or responsibility pursuant to this Agreement concerning CLINIC ACADEMY’s failure to perform any obligations where such failure is due to strike, power outage, lock out, riot, industrial action, fire, storm, tempest, act of god, pandemic, COVID-19 virus, material shortage, government law or regulation or requirement or any other cause beyond the control of CLINIC ACADEMY and no such failure shall entitle the Account Holder to terminate this Agreement.
13.6 Governing law and jurisdiction
(a) This Agreement is governed by the laws of Victoria, Australia.
(b) Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia and legitimate courts of appeal from such courts.
SCHEDULE 1 – Definitions
Additional Hourly Rate means such rate or amount as advised by CLINIC ACADEMY to the Account Holder in writing.
Additional Services means such additional services (other than the Services) as may be agreed between CLINIC ACADEMY and the Account Holder in writing from time to time.
Agreement means this agreement.
Business Day means a day on which the banks are open for business in Adelaide, Australia excluding a Saturday, Sunday or public holiday.
Commencement Date means the date of this Agreement.
Confidential Information means all confidential information of a party or its related bodies corporate (as defined in the Corporations Act) including information, in any form or media, about the business, systems or affairs of a party and the fact that the parties are parties to this Agreement or a contract which is or has been:
(a) disclosed under or in connection with this Agreement, whether orally, electronically, in writing or otherwise; or
(b) learnt or acquired in the performance of this Agreement, other than any such information which:
(i) was in the public domain at the time of its provision;
(ii) became part of the public domain after its provision, otherwise than through a disclosure by the other party or any person to whom the other party has disclosed that information; or
(iii) is or came lawfully into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence.
CLINIC ACADEMY Tools of Trade means any business processes, previous work examples, any data or information, technique or process, tool or mechanism, formula or compound, pattern or testing method and results used by CLINIC ACADEMY or any other intellectual property which would be considered to be proprietary to CLINIC ACADEMY whether developed during the performance of the Services or the Additional Services or otherwise and any pre-existing intellectual property included in what is delivered to the Account Holder.
Corporations Act means the Corporations Act 2001 (Cth) as amended from time to time.
GST means any goods and services tax, value added tax or other like tax.
Initial Term means 18 months
Insolvency Event means the occurrence of any one or more of the following events in relation to either party:
(a) an application made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, unless the application is withdrawn, struck out or dismissed within 7 days of it being made;
(b) the appointment of a liquidator or provisional liquidator;
(c) the appointment of an administrator or a controller to any of its assets;
(d) that party or its holding company enters into an arrangement or composition with one or more of its creditors, or enters into an assignment for the benefit of one or more of its creditors;
(e) that party proposes a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors, or its winding-up or dissolution;
(f) that party is insolvent as disclosed in its accounts or otherwise states that it is insolvent, or is presumed to be insolvent, under an applicable law;
(g) that party becomes an insolvent or under administration, or action is taken which could result in such event;
(h) that party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
(i) a notice is issued under section 601AA or 601AB of the Corporations Act;
(j) a writ of execution is levied against that party or its property;
(k) that party ceases to carry on business or threatens to do so; or
(l) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above clauses of this definition.
Intellectual Property Rights or IP means all existing and future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing or come to exist in Australia or otherwise, but does not include Moral Rights.
Losses means all losses, liabilities, damages and claims, and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties).
Moral Rights means:
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship,
conferred by the Copyright Act 1968 (Cth) and rights of a similar nature anywhere in the world that exist now or that may come to exist in the future.
Private Members Area means the CLINIC ACADEMY private members area on the website https://clinicacademy.com.au.
Related Entity has the meaning given to it under the Corporations Act.
Services means the following:
(a) Access to CLINIC ACADEMY Private Members Area with recorded training, marketing systems, support forum, workbooks, templates and such other content as determined by CLINIC ACADEMY from time to time for each Registered User;
(b) Access to CLINIC ACADEMY phone and tablet app for each Registered User;
(c) such other services as determined by CLINIC ACADEMY from time to time in its absolute discretion.
Services Fee means the services fee as set out at https://clinicacademy.com.au, and which is dependant on the number of purchases registered with CLINIC ACADEMY for the Account Holder;
Registered User means each of the holders of a registered user access login who are registered with CLINIC ACADEMY as Registered Users on record with CLINIC ACADEMY.
Taxes means any taxes or fees with respect to services provided under this Agreement assessed, imposed, levied or charged by any government entity, including but not limited to sales tax, GST or other applicable taxes or duties.
Term means the Initial Term, any further term or the aggregate of the Initial Term and any further term, as appropriate.