Consulting Terms

Consulting Agreement

Parties

AORTA means AORTA Australia Pty Ltd (ABN 42 605 087 849) of 11/37-39 Albert Road, Melbourne, VIC 3004, contactable on info@aorta.com.au

Customer means the natural person or company who indicates their acceptance of these terms by placing an order for the Services or otherwise requesting the Services, including by way of a Works Specification through the Website.

Background

Capitalised words and phrases are defined in the section of the document entitled “Definitions”.

AORTA provides consulting and training Services.
AORTA will provide the Services to Customer on the terms and conditions of the Agreement.

It is agreed as follows.

Agreement Creation

Customer agrees to the terms of the Agreement.

Agreement Duration

The Agreement will apply until it is terminated.

Supply of Services

AORTA will provide the Services set out in the Work Specification to Customer in accordance with the Agreement.

Information Provided

To the extent permissible by law, AORTA does not represent or warrant that any Information it provides as part of the Services is complete or correct.
Customer agrees that it should verify any Information before using or relying on it in any way, and that no Information provided is clinical advice.
AORTA may change the Information at its discretion without any warning or notification to Customer.
To the extent that Information concerns third parties, Customer agrees that AORTA does not endorse the third party (or its products and services) in any way.
The Customer agrees that no Information provided by AORTA should be taken as medical, dental or health care advice.

Mentorship

Customer agrees that neither AORTA nor its agents or affiliates or officers has any relationship (including professional duties) with any of Customer’s patients.
AORTA will respond to requests for information by Customer at its discretion with no guaranteed response times.
While Customer may ask questions driven by its circumstances, Customer agrees that AORTA will provide responses based only on the information provided to AORTA.
The parties agree that:
- no information provided by AORTA will be construed as supervisory in nature; and
- the Customer is an independent professional solely responsible for the use of the information communicated by AORTA.
Customer agrees not to use any of the Information out of compliance with the requirements (including best Customer, policy and legal requirements) of the Dental Board.

Out of Scope Work

If, at Customer’s request, AORTA provides work or services outside the scope of the Work Specification then Customer must pay AORTA $500 (exclusive of GST) per hour for the extra work.
AORTA may invoice Customer for such extra work at its discretion, and Customer must pay within 14 days of receiving the invoice.

Payment Calculation

Where the Service provided by AORTA is a training event on a specific day, AORTA and Customer will exchange a Work Specification. This will detail the scope of training, the location at which the training will be delivered, the number of attendees, and the total price payable by Customer.
Where the Service provided by AORTA is other than a training event on a specific day, Customer will pay AORTA $500 (exclusive of GST) per hour for any Services requested by Customer.
Customer must pay AORTA the amount(s) specified in exchange for the Services.

Payment Method

Where the Service provided by AORTA is a training event on a specific day, the following provisions apply.
- AORTA Australia will invoice Customer in accordance with the Work Specification, including in respect of any deposit payable by Customer.
- Customer will pay the invoices in accordance with the payment terms and using the payment mechanism specified in the Work Specification.
Where the Service provided by AORTA is other than a training event on a specific day, the following provisions apply.
- Each month, Provider will invoice Customer for the Services rendered during the previous month;
- Customer will pay the invoice within 14 days of receiving the invoice; and
- Customer will pay the invoice via electronic funds transfer.

Failure to Pay

If Customer fails to pay any amount due under the Agreement on time, AORTA may immediately, at its discretion charge Customer interest on the overdue amount at an interest rate equal to the [ATO GIC Rate](https://www.ato.gov.au/Rates/General-interest-charge-(GIC)-rates/).
If payment is overdue for longer than 7 days, AORTA may suspend the provision of the Services to Customer until the overdue payment is received.

Suspension of Services

AORTA may suspend the delivery of Services under this Agreement or the delivery of goods or services under any Related Agreement if:
- Customer breaches this Agreement; or
- Customer breaches any Related Agreement;

until such a time as any such breach is remedied to the satisfaction of AORTA in their sole and absolute discretion.

AORTA may, at its absolute discretion, suspend the delivery of Services under this Agreement or the delivery of goods or services under any Related Agreement if any Related Agreement is terminated.

Confidentiality

Keeping secret

Both AORTA and Customer will Keep Secret the Confidential Information of the other party perpetually and use it only for performing obligations or exercising rights under the Agreement.

Intellectual Property Ownership

Ownership

If Customer obtains any interest in the New IP, Customer Transfers Intellectual Property Ownership in the New IP to AORTA.

Customer licence

AORTA grants a licence to Customer to the New IP and the Background IP as described in the table below.

Topic	Condition
Parties	AORTA grants to Customer
Type	Restricted Licence
Location	Global
Period	2 years
Purpose	for the purposes of the the licensee’s business
Characteristics	irrevocable

Limitation of AORTA’s Liability

The amount Customer can claim from AORTA in relation to the Agreement and Services (including for any Example Limitation Risks) is Limited To The Legal Minimum.

Customer Warranties

Customer represents and warrants that:

Customer is a dental health professional or an entity which provides dental health services;
Customer has a current AHPRA registration;
Customer possesses all insurance policies required by law;
Customer possesses all radiation licences required by law;
Customer is not currently involved with any litigation with respect to any dental practice the Customer is involved with;
Customer is not involved with any disciplinary proceedings (current or pending) by the Dental Board;
Customer is competent to, and legally permitted to practice dentistry; and
where the Customer constitutes more than one individual, that the party entering the Agreement has all necessary authority to enter into the Agreement.

Customer agrees to promptly notify AORTA if any changes occur to Customer’s circumstances with respect to these warranties.

Indemnity by Customer

Customer will Cover All Costs of AORTA arising from the Example Limitation Risks, to the extent such losses are caused by the conduct of Customer.

Termination

Agreement can be terminated for breach immediately by either party if:
- either party notifies the other party in writing of an Agreement breach; and
- 14 days after the breach notification, the Agreement breach is not remedied.
Agreement can be terminated immediately by either party if the other party becomes insolvent.
Agreement can be terminated by either party for any reason, by giving 30 days written notice to the other party.

Document Inconsistency Resolution

This document will take precedence over the Work Specification to the full extent of any inconsistency between those documents.

Miscellaneous

Governing law

The governing law of the Agreement will be Victoria, and the parties agree that this state will be the exclusive jurisdiction for any proceedings under the Agreement.

Communications

The parties may send Communications to other Agreement parties using:

the email addresses listed in the party details section of the Agreement;
the email address used by Customer to sign up for the Website; or
any email address used by Customer as a means of communication with AORTA.

Taxes
- Customer will be liable for all duties and taxes connected with the Agreement.
- Customer will be liable for taxes incurred under GST Law.
Independence

The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.

Retrospectivity

The Agreement will apply retrospectively to anything (and any Indemnifier) provided by AORTA to Customer within the scope of the Agreement prior to the commencement of the Agreement, unless the parties agree otherwise in writing.

Agreement technicalities

The parties agree to:

the Boilerplate Provisions; and
the Interpretation Principles.

Definitions

AORTA Website Terms

means the terms and conditions governing access to the Website, available at aortaaustralia.com.au/terms-and-conditions/.

Agreement

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.

Associate

means:

in respect of a natural person:
- a spouse, child, sibling or parent of the person; or
- a trustee of a trust estate where the natural person or spouse, child, sibling or parent of the person is (directly, or indirectly) a beneficiary under the trust.
in respect of a company:
- a directory or secretary of a company;
- an associate (as defined in (a) above) of a director or secretary of the company;
- a related body corporate of the company (as defined in the Corporations Act); or
- a company that customarily acts in accordance with the wishes of a director or secretary of the company.

Background IP

means the intellectual property rights owned by AORTA:

prior to the application of the Agreement; or
created by AORTA outside the scope of the Agreement.

Boilerplate Provisions

The following sections apply to the Agreement.

Further assurances

The parties agree to do everything required to give full effect to the Agreement.

Entire agreement

The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.

Electronic signature

The Agreement may be executed or entered into electronically.

Counterparts

The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.

Waiver

No right or obligation under the Agreement will be waived unless the waiver is explicitly waived in writing.

Severance

Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.

Binding on successors

The Agreement is binding on each party’s successors and permitted assigns.

Agreement expenses

The parties will cover their own expenses in preparing the Agreement documents.

Contractor Agreement

means any Agreement between Customer and a dentist related to AORTA, describing the terms under which the dentist delivers clinical services to patients at the premise of the Customer (if extant).

Communications

means any contractual communication in connection with the Agreement.

Compulsory Conditions, Compulsory Condition

means any condition, warranty or guarantee that the law does not permit to be limited or excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).

Confidential Information

means all information:

disclosed by a disclosing party to recipient party; or
which otherwise becomes to be known by the recipient party,

that could reasonably be regarded as confidential to the disclosing party, and includes information relating to:

technology, processes, products, inventions or designs used or developed by a disclosing party;
trade secrets and know-how;
customer lists and customer data; and
commercially sensitive information.

Consequential Loss

means any kind of consequential, special, incidental or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive or exemplary loss or damages.

Contributed IP

means:

the intellectual property rights owned by Customer prior to the creation of the Agreement; and
the intellectual property rights created by Customer, or provided by Customer to AORTA, in the course of AORTA rendering the Services.

Costs, Cost

means any cost, expense, loss, damage, claim, demand, proceeding, judgment, settlement, lawyer or attorney’s fees, court cost, or other liability, whether arising under contract law, tort law, legislation or otherwise.

Cover All Costs
- Application of Indemnity
  - These indemnities are subject to the application of any Compulsory Conditions.
  - To the fullest extent permitted by the law, the indemnifying party indemnifies the indemnified party and its directors, employees, agents and assigns, for all Costs suffered by them in connection with each of the indemnity subjects.
- Scope of Indemnity
  - The indemnified party must use reasonable endeavours to mitigate any Cost that arises that is subject to these indemnities.
  - These indemnities will not apply to Costs that are the subject of an indemnity exception, to the extent of that indemnity exception.
- Separate indemnities

Each indemnity subject described in the clause will give rise to a separate indemnity in relation to that indemnity subject on the terms and conditions in this definition.

Indemnity details

These indemnities:

will survive the termination of the Agreement; and
will be additional to any contractual damages that the indemnified party might otherwise be entitled to claim.

Unless otherwise stated in the clause, the indemnified party may make a claim under these indemnities before any liability is crystallised, loss sustained or cost incurred.

Dental Board

means the Dental Board of Australia (https://www.dentalboard.gov.au)

Disclosing Party

means the party disclosing Confidential Information under the Agreement.

Example Limitation Risks

means any liabilities arising from the risks described below.

Risks from advice, including:

reliance on advice or opinions in whatever form;
incorrect technical advice or data; and
failure to provide correct information.

Risks from data, including:

breach of privacy or data protection law;
digital security issues like malware;
breach of any law in connection with spam;
the storage of any third party data;
corrupted or lost data; and
a third party pursuing a right conferred by privacy or data protection law.

Risks from software and network, including:

digital security issues like software vulnerabilities;
software in a testing phase like (or analogous to) beta and alpha software;
software or network that’s inaccessible for any reason;
faulty technical data created by software;
the use of software for unlawful activity; and
failure of any software, hardware or network components provided by a third party.

Risks from intellectual property, including:

risks relating to infringement of third party intellectual property; and
any third party claim or legal action for intellectual property infringement.

Risks from people and property, including:

any death or injury; and
any property damage.

Risks from the Agreement, including:

negligence connected with the Agreement and its subject matter;
third party reliance on the subject matter of the agreement;
any act or omission connected with this agreement;
any delay connected with the Agreement;
breaches of the Agreement; and
the termination of the Agreement.

GST Law

means the A New Tax System (Goods and services Tax) Act 1999 (Cth).

Indemnifier

means the party or parties providing an indemnity under the clause using this definition, and if that is not applicable, the party or parties providing indemnities under the Agreement.

Information

means any information, opinion, communication or advice provided by AORTA during the provision of the Services.

Intellectual Property Rights

means, with the exception of moral rights and other inalienable rights, all right, title and interest, in each of the following in Australia and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:

copyright;
trade marks;
trade names, brand names or indications of source, appellation or origin;
inventions including patents, utility patents, patent applications, utility patent applications, and utility models;
circuit layout designs;
registered or unregistered designs;
rights in databases;
topography rights;
design rights;
plant variety and plant breeder rights;
domain name registrations;
confidential information, trade secrets, and know how;
any other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
any application for the registration of any of the above, and any rights to make such an application;
any right to take action to enforce any of the above rights; and
any licence from a third party to use any of the above.

Interpretation Principles

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:

Parties

For the parties to this document:

a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party; and
any reference to a trustee includes any substituted or additional trustee.
Grammatical Forms

In this document grammatical forms shall be interpreted as follows:

unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
‘including’, ‘includes’ or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
headings are for convenience and will not affect interpretation;
words in the singular will be taken to include the plural and also the opposite; and
‘$” means the Australian dollar.
Document References

For other documents referenced by this document:

a reference to a document will be to that document as updated, varied or amended;
a document referenced by the Agreement will not take precedence over the referencing document;
when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
where a “URL” is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid; and
any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource.
Rights and Obligations

In this document:

a reference to a party’s conduct includes omissions as well as acts;
if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
where a party is required to do ‘anything necessary’, this includes executing agreements and other legal instruments.
Definitions

For definitions in this document:

defined terms begin with capital letters and are not legally effective except to the extent described below;
where a definition contains rights and obligations, those rights and obligations will be incorporated by reference into the clause that uses the definition (referred to in the definition as “the clause”);
parameters for rights and obligations described by a definition are indicated with text in italics;
parameters in a definition inherit meaning from the equivalent concepts in a plain reading of the clause (including the defined term) using the definition;and
where a definition refers to rights and obligations as “these” or “this”, it is referring to rights and obligations created by the use of the definition in a clause.

Keep Secret
- Obligation of confidentiality
  - The recipient party agrees to use the confidentiality subject solely for the confidentiality purpose.
  - The recipient party agrees to keep the confidentiality subject strictly confidential for the confidentiality period.
- Standard of confidentiality

The recipient party agrees to:

use industry standard security techniques to prevent;
immediately notify disclosing party of;
comply with disclosing party’s reasonable instructions regarding; and
use its best endeavours to mitigate the effects of,

any unauthorised access to or use of the confidentiality subject for which the recipient party is responsible in whole or in part.

Permitted disclosures
- The recipient party may disclose the confidentiality subject to professional advisors, like lawyers or accountants, but only to the extent necessary for the confidentiality purpose.
- The recipient party may disclose the confidentiality subject if it is, or subsequently comes to be, publicly known through no fault, act, or omission on the part of the recipient party;
- The recipient party is also permitted to disclose the confidentiality subject if:
  - the disclosure is necessary in order to enforce the Agreement; or
  - the disclosure is required by law or a binding order of a government agency or court, but (to the extent permitted by law) the recipient party must not make such a disclosure without first notifying disclosing party and giving disclosing party a reasonable opportunity to object to the disclosure.
- The recipient party must comply with disclosing party’s reasonable requests with regard to any permitted disclosure.
- The recipient party must use reasonable endeavours to ensure any person receiving the confidentiality subject through a permitted disclosure will treat it confidentially, and under substantially the same obligations as these confidentiality obligations.
Exceptions

Where there is a confidentiality exception, these confidentiality obligations will not apply to the extent of the confidentiality exception.

Damages not an adequate remedy
- The parties agree that:
  - the value of keeping the confidentiality subject confidential is difficult to assess; and
  - damages would not be an adequate remedy for the irreparable harm that would be caused by the the recipient party’s breach of these confidentiality obligations.
- If the recipient party actually breaches or threatens to breach these confidentiality obligations, disclosing party will be entitled to enforce the recipient party’s confidentiality obligations by injunctive relief or specific performance, in addition to any other available remedy. The disclosing party will not be required to prove actual or special damage in order to do so.
Mutual obligations

These confidentiality obligations may be mutual so that, if specified in the clause, each party to the Agreement may simultaneously be a disclosing party with respect to its own confidentiality subject and a recipient party with respect to another party’s confidentiality subject.

Laboratory Agreement

means any Agreement between Customer and AORTA, describing the terms under which the AORTA supplies Laboratory Goods and associated services to Customer available at http://aorta-old.local/laboratory-supply-agreement/.

Limited To The Legal Minimum

The limited party deals with the limiting party in respect of the limitation subject at its own risk. To the fullest extent permitted by law, limiting party excludes all liability (including Consequential Loss) to limited party for any liabilities connected directly or indirectly with the limited party and limiting party dealings in relation to the limitation subject, including liabilities based on:

contract law;
tort law; or
legislation,

and including liabilities caused by the limitation risks.

Where there is a limitation exception, this limitation of liability does not apply to the subject of the limitation exception.

Indemnities not limited

The foregoing limitation of liability will not apply to indemnities given by limiting party to limited party under the Agreement.

Implied Conditions

To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the limiting party and the limited party in respect of the limitation subject are excluded from the Agreement.

Compulsory Conditions

To the fullest extent permitted by the law, limiting party’s liability to the limited party for breaching a Compulsory Condition in relation to the limitation subject is limited to:

in a case where a breach is deemed to be a breach in respect of goods:
- the replacement of the relevant goods or the supply of equivalent goods;
- the repair of the relevant goods;
- the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
- the payment of the cost of having the relevant goods repaired; and
in a case where a breach is deemed to be a breach in respect of services:
- the resupply of the relevant services; or
- payment of a sum equal to the cost of resupplying the relevant services.

The limiting party will choose which of these options will apply.

Moral Rights

means the rights commonly referred to as “moral rights”, such as the right of attribution, which are recognised in the jurisdiction of the Agreement.

New IP

means the intellectual property rights created by AORTA for Customer under the Agreement, and does not include Background IP or Contributed IP.

Related Agreement

means the:

Laboratory Agreement;
Contractor Agreement;
AORTA Website Terms; and
any agreement between AORTA or an Associate of AORTA on one hand, and Customer or an Associate of Customer on the other.

Restricted Licence
- The licensor grants the licensee a licence to the Intellectual Property Rights in the licence subject for the licence purpose. Unless otherwise specified in the clause the licence is:
  - revocable;
  - non-transferrable;
  - unsublicensable; and
  - non-exclusive.
- Where there is a licence exception, the licence of Intellectual Property Rights above will not apply to the subject of the licence exception.
- The licence granted above will be subject to the terms and conditions specified in the clause.
- The licensor warrants that the licensee’s legitimate exercise of the licensed Intellectual Property Rights for the licence purpose will not infringe the rights of any third party.
- The licensor warrants that it will give and obtain any Moral Rights waivers and consents necessary to ensure the licensee can use the Intellectual Property Rights for the licence purpose without infringing Moral Rights.
Services

means training and consulting services provided by AORTA to the Customer in respect of aesthetic, orthodontic and restorative information, which will include information on:

workflow
digital technology integration;
patient interaction;
practice implementation of software intra oral scanners and photos / videos;
orthodontic monitoring; and

Transfers Intellectual Property Ownership
- The assignor assigns all current and future Intellectual Property Rights in the transfer subject to assignee.
- The assignment is global unless the clause specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.
- The assignor warrants and represents to assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the assignee’s legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.
- The assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.
- The assignor gives (and where it does not hold the relevant Moral Rights warrants that it will obtain) any Moral Rights waivers and consents necessary to ensure the assignee can deal in the Intellectual Property Rights in the transfer subject in accordance with this clause without infringing Moral Rights.
- Where there is a transfer exception, the transfer of Intellectual Property Rights and obligations in relation to Moral Rights in the subclauses above will not apply to the subject of the transfer exception.
Website

means AORTA’s website available at aortaaustralia.com.au/.

Work Specification

means the most recent document exchanged between AORTA and Customer, detailing the scope, date, and price of the Services requested by Customer.

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