Terms & Conditions

Terms and Conditions can be downloaded here:
Aorta Online Training and Forum Terms and Conditions

Training Terms

Capitalised words and phrases are defined in the section of this document entitled “Definitions” and the schedule provided with this document entitled “Global definitions”.

AORTA Australia means Aorta Australia Pty Ltd (ABN) (42 605 087 849) of 11/37-39 Albert Road, Melbourne, VIC 3004

contactable on info@aortaaustralia.com.au

Subscriber means the party or parties set out in the Work Specification.

 

1.            Supply of services

  • AORTA Australia will provide the Services set out in the Work Specification to Subscriber in accordance with the Agreement.
  • Each party will fund its own information technology costs.
  • The parties agree and acknowledge that the Services are for informational purposes only and do not constitute professional or medical advice of any kind.
  • If Subscriber constitutes more than one party, each party will be held jointly and severally liable for the obligations of Subscriber under the Agreement.

2.            Agreement length

  • Where the only Service provided by AORTA Australia is training on a specific day, the Agreement will apply until completion of the Services by AORTA Australia.
  • If the Services include any service other than training on a specific day the initial term of the Agreement will first apply until completion of the training on a specific day and then continue to renew automatically on a rolling basis for further 1 month terms.
  • The Agreement will not automatically renew for another 1 month term if a party to the Agreement gives the other party 14 days written notice.
  • In case of such notice the Agreement will continue to the end of the term when notice was given,but will not roll over for a new term.

3.            Payment calculation

Subscriber must pay AORTA Australia the amount specified in the Work Specification in exchange for the Services.

4.            Payment methods

Payment for training event

  • Where the Service provided by AORTA Australia is training on a specific day, the following provisions apply.
  • AORTA Australia will invoice Subscriber for a deposit and for the remainder in accordance with the Work Specification.
  • Subscriber will pay the invoices in accordance with the payment terms and using the payment mechanism specified in the Work Specification.

Payment for ongoing services

  • Where the Service provided by AORTA Australia 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 7 days of receiving the invoice.
  • Customer will pay the invoice via electronic funds transfer.

5.            Payment failure

  • If Subscriber fails to pay any amount due under the Agreement on time, AORTA Australia may immediately, at its discretion charge Subscriber interest on the overdue amount at an interest rate equal to the ATO GIC Rate at https://www.ato.gov.au/Rates/General-interest-charge-%28GIC%29-rates/.
  • If payment is overdue, AORTA Australia may suspend the provision of the Services to Subscriber until the overdue payment is received.

6.            Out of scope work

  • If, at Subscriber’s request, AORTA Australia provides additional services outside the scope of the Services then Subscriber must pay AORTA Australia the fees, specified in the Work Specification, for the extra work.
  • AORTA Australia may invoice Subscriber for such extra work at its discretion, and Subscriber must pay within 7 days of receiving the invoice.

7.            Intellectual property

  • If Subscriber obtains any interest in the New IP, Subscriber Transfers Intellectual Property Ownership in the New IP to AORTA Australia.
  • AORTA Australia grants a licence to Subscriber to the New IP and the Background IP as described in the table below.
Topic Condition
Parties AORTA Australia grants to Subscriber
Type Restricted Licence
Location Australia
Period For the duration of the Agreement
Purpose For the purposes of receiving the Services

8.            Confidentiality

Both AORTA Australia and Subscriber will Keep Secret the Confidential Information of the other party perpetually and use it only for providing or receiving the Service, however, the parties may disclose Confidential Information to:

  • sub-contractors that work with the parties to fulfil obligations under the Agreement;
  • insurers; and
  • debt collectors (if a debt under the Agreement is due).

To ensure third party recipients keep the Confidential Information secret, the parties will use best endeavours.

Upon termination or cancellation of the Agreement, each party must return, or at the discretion of the other party, delete or destroy all Confidential Information in its possession or control.

9.            Questionnaire

  • Where AORTA Australia provides Subscriber with the Questionnaire, Subscriber agrees to complete it and send it to AORTA Australia.
  • Subscriber represents and warrants that all the information provided by Subscriber in the Questionnaire is true, accurate and complete.
  • Subscriber undertakes to notify AORTA Australia in writing if any information provided in the Questionnaire changes after the Subscriber provides the Questionnaire to the AORTA Australia.

10.         Information provided

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

11.         Mentorship

  • Subscriber agrees that AORTA Australia has no relationship at law (including professional duties) with any of Subscriber’s patients.
  • AORTA Australia will respond to requests for information by Subscriber at its discretion with no guaranteed response times.
  • While Subscriber may ask questions driven by its circumstances, Subscriber agrees that AORTA Australia will provide responses based only on the information provided to the AORTA Australia.
  • The parties agree that:
  • no information provided by AORTA Australia will be construed as supervisory in the nature; and
  • the Subscriber is an independent professional solely responsible for the use of the information communicated by AORTA Australia.
  • Subscriber agrees not to use any of the Information out of compliance with the requirements (including best Subscriber, policy and legal requirements) of the Dental Board.

12.         Privacy

  • Subscriber is responsible for its own and its personnel’s compliance with privacy law.
  • In handling Personal Information in connection with the Services, Subscriber must comply (and ensure its personnel comply) with:
  • the AORTA Australia’s privacy policy available at https://aortaaustralia.com.au;
  • applicable professional ethics standards or rules, including AHPRA and ADA rules or standards relating to confidentiality or privacy;
  • AORTA Australia’s reasonable privacy compliance and security procedures notified to Subscriber from time to time; and
  • privacy law.
  • Subscriber must not disclose any Sensitive Information of any individual to AORTA Australia without first obtaining the informed written consent of the individual.
  • If AORTA Australia prescribes a form for obtaining such consent, Subscriber must obtain consent in the form at Schedule 2 to this document.
  • Subscriber must keep a record of the consent in relation to any patient whose information it discloses to AORTA Australia, and provide that record to AORTA Australia on request.
  • Subscriber must include in its privacy policy a statement that it may disclose patient information to AORTA Australia for support and training services.
  • Subscriber must immediately notify AORTA Australia if it becomes aware of any:
  • inquiry or complaint regarding privacy by any individual;
  • breach of Subscriber’s privacy obligations under the Agreement;
  • unauthorised disclosure of, or access to, Personal Information;
  • disclosure or data breach of personal information; or
  • investigation by the Office of the Australian Information Commissioner or another government agency,

in connection with the Services, and must comply with AORTA Australia’s reasonable instructions regarding the response to any such incident.

13.         Forum Terms

By entering the Agreement, the Subscriber agrees to the Forum Access Terms in Schedule 1 to this document.

14.         AORTA Australia claim limits

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

15.         AORTA Australia covering costs

Subscriber will Cover All Costs of AORTA Australia arising from the risks described below.

Risks from advice, including:

  • any fault or reliance connected with Information;
  • reliance on advice or opinions in whatever form;
  • incorrect technical advice or data; and
  • failure to provide correct information.

Risks from data, including:

  • breaches of privacy or data protection law;
  • breach of any law in connection with spam;
  • any privacy request, inquiry, investigation, complaint or enforcement procedure;
  • third party loss from the storage of third party data; and
  • an individual pursuing a right under privacy or data protection law connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from software and network, including:

  • digital security issues like software vulnerabilities and malware connected with conduct;
  • inaccessibility of software or a network connected with conduct; and
  • the use of software for unlawful conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from intellectual property, including:

  • infringement of third party intellectual property; and
  • any third party claim or legal action for intellectual property infringement connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from people and property, including:

  • death or injury connected with conduct; and
  • property damage connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from the Agreement, including:

  • negligence;
  • third party reliance on the Agreement and Services resulting from conduct;
  • any act or omission;
  • delays; and
  • breaches,

by Indemnifier in connection with the Agreement and Services.

16.         Restraint

Subscriber is Restrained From Industry Competition with AORTA Australia in Australia during the term of the Agreement and for a period of 24 months thereafter.

17.         Cancellation

  • Agreement can be cancelled immediately by AORTA Australia if Subscriber breaches the Agreement.
  • Agreement can be cancelled by AORTA Australia if the other party becomes insolvent.

18.         Early cancellation consequences

Any deposit paid under the Agreement will be non-refundable unless the Subscriber cancels the Agreement more than 30 days before any Services are delivered.

19.         Agreement creation

The parties agree to the terms of the Agreement by signing the execution provided alongside this document.

20.         Inconsistency between documents

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

21.         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.

Taxes

Subscriber will be liable for all duties and taxes connected with the Agreement, including any tax 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 Australia to Subscriber 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.

Defined words and phrases

  • Defined words and phrases are capitalised. Clauses with defined phrases will be read in such a way that the rights and obligations described by the defined phrase are incorporated by reference into the clause.
  • The text in a defined phrase is for convenience only and is not legally effective, however, the operation of the rights and obligations in the definition of the defined phrase will be determined by the other words in the clause incorporating the defined phrase.

22.         Definitions

Assignee means the party receiving ownership of the Intellectual Property Rights in the Provision.

Assignor means the party transferring ownership of the Intellectual Property Rights in the Provision.

Background IP means the intellectual property rights owned by AORTA Australia:

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

Contributed IP means:

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

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

Intellectual Property Right 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.

Licence Exception means the exception to the licence of Intellectual Property Rights.

Licence Purpose means the purpose for using the Intellectual Property Rights specified in the Provision or, if no purpose is specified, then any purpose.

Licence Subject means the subject(s) of the licence of Intellectual Property Rights.

Licensee means the party to whom Intellectual Property Rights are licensed in the Provision.

Licensor means the party licensing the Intellectual Property Rights in the Provision.

Moral Right 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 Australia for Subscriber under the Agreement, and does not include Background IP or Contributed IP.

Questionnaire means the questionnaire that may be provided to the Subscriber by the AORTA Australia in on or around the date of the Agreement in relation to Subscriber risk.

Restrained From Industry Competition means, subject to the Restraint Limits, the Restrained Party must not directly or indirectly provide services to, or engage in, conduct, carry on or be involved or interested in, any business that is a competitor of the Restraining Party.

Restrained Party means the party restrained by the restraint of trade in the Provision.

Restraining Party means the party imposing a restraint of trade on the other party in the Provision.

Restraint means the restraint of trade in the Provision.

Restraint Limits means the application of the following provisions:

Restraint Period reduction scheme

If the Restraint Period in the Provision is unenforceable, then it will be reduced progressively according the following scheme, up to the point that it is enforceable.

  • If a period of 24 months is held to be unenforceable the period will be reduced to 21 months.
  • If a period of 21 months is held to be unenforceable the period will be reduced to 18 months.
  • If a period of 18 months is held to be unenforceable the period will be reduced to 15 months.
  • If a period of 15 months is held to be unenforceable the period will be reduced to 12 months.
  • If a period of 12 months is held to be unenforceable the period will be reduced to 9 months.
  • If a period of 9 months is held to be unenforceable the period will be reduced to 6 months.
  • If a restraint period of 6 months is held to be unenforceable the restraint period will be 3 months.

Restraint Territory reduction scheme

If the Restraint Territory in the Provision is unenforceable, then it will be reduced progressively according to the following scheme up until the point that it is enforceable.

  • If it is unenforceable to have a Restraint Territory that is worldwide, then the Restraint Territory it will be reduced to the continent of the Restraining Party’s registered address for business.
  • If it is unenforceable to have a Restraint Territory that is a continent, then the Restraint Territory will be reduced to the country of the Restraining Party’s registered address for business.
  • If it is unenforceable to have a Restraint Territory that is a country, then the Restraint Territory will be reduced to the state of the Restraining Party’s registered address for business.
  • If it is unenforceable to have a Restraint Territory that is a state, then the Restraint Territory will be reduced to the city of the Restraining Party’s registered address for business.
  • If it is unenforceable to have a Restraint Territory that is a city, then the Restraint Territory will be reduced to the suburb of the Restraining Party’s registered address for business.

General

  • The Restraints in the Agreement are separate, distinct and several so that the unenforceability of any restraint does not affect the enforceability of the other restraints.
  • The parties agree that the Restraints are necessary to protect the legitimate business interests of the Restraining Party.

Restraint Period means the period of the Restraint designated in the Provision.

Restraint Territory means the territory in the Provision, to which the Restraint applies.

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 Provision 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 Provision.
  • 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.
  • 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.

Service means the services set out in the Work Specification, which includes the following categories of service.

Training

AORTA Australia will provide training for:

  • dentists on the use of digital software so they can better treat patients with aesthetic, orthodontic and restorative services; and
  • dentists, nurses, dental therapists and receptionists on improving processes and work in a dental Subscriber,

in the form of lectures, observational training and hands on training in person.

Software Support

AORTA Australia will offer Subscribers the opportunity to procure support from AORTA Australia around using the third party software in the form of telephone and in person support and training on software.

Mentoring

AORTA Australia will provide information in response to Subscriber or personnel of the Subscriber.

Transfer Exception means the exception to the transfer of Intellectual Property Rights.

Transfer Intellectual Property Ownership

  • Assignor assigns all current and future Intellectual Property Rights in the Transfer Subject to Assignee.
  • The assignment is global unless the Provision specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.
  • 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.
  • Assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.
  • 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.

Transfer Subject means the subject(s) of the transfer of Intellectual Property Rights in the Provision.

Work Specification means the document agreed between the parties setting out the scope of work to be delivered by AORTA Australia to Subscriber, titled “Services Outline”.

 

 

Schedule 1 – Forum Access Terms

For access to the professional discussion on https://aortaaustralia.com.au/

Capitalised words and phrases are defined in the section of this document entitled “Definitions” and the schedule provided with this document entitled “Global definitions”.



AORTA Australia means Aesthetic Ortho and Restorative Training Academy Australia (ABN 57 609 411 190) of 18/37-39 Albert Road, Melbourne, VIC 3004, contactable on info@aortaaustralia.com.au

Subscriber means the same party identified as “Subscriber” in the Training Agreement.

23.         Agreement

  • AORTA Australia grants Subscriber a right to use the Forum subject to the terms and conditions of the Agreement.
  • If Subscriber constitutes more than one party, each party will be held jointly and severally liable for the obligations of Subscriber under the Agreement.

24.         Digital accounts

  • Subscriber agrees to:
  • keep details used to access the Account secure and private; and
  • notify AORTA Australia in the event that the Account’s security is compromised in any way.
  • Subscriber agrees that it will be responsible for the Account’s activity, even if the Account is used in an unauthorised way by any other person.

25.         Length

  • The Agreement will apply until it is cancelled by either party.
  • If the Agreement arising under the Training Terms to which these terms are attached is cancelled, the Agreement will cancel automatically.
  • Either party may immediately cancel the Agreement without giving reasons immediately. Both parties agree that this is reasonable given the number of agreements of a similar nature that AORTA Australia has with other parties.

26.         User interaction

  • AORTA Australia facilitates the exchange of information between users of the Forum, but has no relationship at law with the transactions between users of the Forum.
  • Subscriber agrees to make a good faith effort to resolve conflicts between itself and any other user of the Forum without the intervention of AORTA Australia.

27.         Confidentiality

Both AORTA Australia and Subscriber will Keep Secret the Confidential Information of the other party for the term of the Agreement (and during the fulfilment of its obligations when the agreement is cancelled) and use it only for participating in the Forum discussions.

The Confidential Information includes information:

  • about any information posted to or exchanged on the Forum; and
  • disclosed in other communications between participants of the Forum connected with the subject matter of the Forum.

Upon termination or cancellation of the Agreement, each party must return, or at the discretion of the other party, delete or destroy all Confidential Information in its possession or control, immediately.

28.         Disclosure outcomes

The disclosure of Confidential Information from a Disclosing Party to a Recipient Party under the Agreement will not:

  • have the effect of granting any rights over intellectual property rights in the Confidential Information;
  • establishing any relationship between the parties other than that created explicitly by the Agreement; or
  • impose any obligation on a Disclosing Party to disclose accurate or current Confidential Information.

29.         Acceptable content

  • Subscriber agrees only to use the Forum in accordance with the Acceptable Use Policy at https://www.facebook.com/groups/365679007211762/.
  • The parties agree that a breach of this acceptable use clause gives AORTA Australia the right to immediately suspend Subscriber’s access to the Forum until AORTA Australia is reasonably satisfied that the use breaching this clause will be discontinued.

30.         Posted information

Subscriber agrees that:

  • it is responsible for the legal consequences arising from Posted Content;
  • AORTA Australia is in no way responsible for legal consequences arising from Posted Content;
  • AORTA Australia may edit or remove Posted Content at its discretion; and
  • Subscriber promises that it will not, by posting Posted Content, infringe the intellectual property rights of any third party, or cause AORTA Australia to do so.

31.         Information and reliance

  • AORTA Australia does not promise that any Forum Content is complete or correct.
  • Subscriber agrees that it should verify any Forum Content before relying on it in any way.
  • AORTA Australia may change the Forum Content at its discretion without any warning or notification to Subscriber.
  • To the extent that Forum Content is third party advertising, Subscriber agrees that AORTA Australia does not endorse the third party advertiser or any of its information, products or Forums.

32.         Privacy law obligations

  • AORTA Australia will handle Personal Information entered included in Forum Content in accordance with AORTA Australia’s privacy policy available at https://aortaaustralia.com.au.
  • Subscriber must, in handling Personal Information that is part of Forum Content, comply with:
  • AORTA Australia’s privacy policy;
  • AORTA Australia’s reasonable instructions and protocols.
  • Subscriber must not handle Personal Information in any way that would result in the information being collected, used, stored or disclosed inconsistently with AORTA Australia’s privacy policy.
  • Subscriber must not post any Sensitive Information, including Health Information, about an individual on the Forum without first obtaining the informed written consent of the individual.
  • Subscriber must keep a record of the consent in relation to any patient about whom it posts on the Forum, and provide that record to AORTA Australia on request.
  • If AORTA Australia prescribes a form for obtaining such consent, Subscriber must obtain the consent in the prescribed form.
  • Subscriber must include in its privacy policy a statement that it may disclose patient information on the Forum, with the consent of patients.
  • Subscriber must not download, or store locally, any Forum Content, except to the extent the storage happens automatically in the ordinary course of browsing the Forum.

33.         AORTA Australia claim limits

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

34.         Subscriber covering costs

Subscriber will Cover All Costs of AORTA Australia arising from the risks described below.

Risks from data, including:

  • breaches of privacy or data protection law;
  • breach of any law in connection with spam;
  • third party loss from the storage of third party data; and
  • an individual pursuing a right under privacy or data protection law connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from software and network, including:

  • digital security issues like software vulnerabilities and malware connected with conduct;
  • inaccessibility of software or a network connected with conduct; and
  • the use of software for unlawful conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from intellectual property, including:

  • infringement of third party intellectual property; and
  • any third party claim or legal action for intellectual property infringement connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from people and property, including:

  • death or injury connected with conduct; and
  • property damage connected with conduct,

by Indemnifier in connection with the Agreement and Services.

Risks from the Agreement, including:

  • negligence;
  • third party reliance on the Agreement and Services resulting from conduct;
  • any act or omission;
  • delays; and
  • breaches,

by Indemnifier in connection with the Agreement and Services.

35.         Agreement changes

  • AORTA Australia may change the Agreement by notifying Subscriber in writing or by email with 7 days notice.
  • If Subscriber does not agree to the Agreement changes, Subscriber must cease using the Forum.

36.         Necessary bureaucracy

Governing law

The governing law of the Agreement will be New South Wales, 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.

Taxes

Subscriber will be liable for all duties and taxes connected with the Agreement, including any tax 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 Australia to Subscriber 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.

Defined words and phrases

  • Defined words and phrases are capitalised. Clauses with defined phrases will be read in such a way that the rights and obligations described by the defined phrase are incorporated by reference into the clause.
  • The text in a defined phrase is for convenience only and is not legally effective, however, the operation of the rights and obligations in the definition of the defined phrase will be determined by the other words in the clause incorporating the defined phrase.

37.         Definitions

Account means the digital account used by Subscriber for the purpose of the Forum.

Forum means the discussion Forum on Facebook.com between the participants.

Forum Content means any information, content or data provided with or in association with the Forums.

Posted Content means any content or information posted by Subscriber that is available to third parties.

Training Agreement means the Training Agreement that this document is a schedule to.

 

 

 

Schedule 3 – Global Definitions

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

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.

Communication means any contractual communication in connection with the Agreement.

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 the Disclosing Party to the 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 the Disclosing Party;
  • trade secrets and know-how;
  • customer lists and customer data; and
  • commercially sensitive information.

Confidentiality Exception means any exception to the Confidentiality Obligations set out in the Provision.

Confidentiality Obligation means the obligations regarding the Confidentiality Subject that are set out in the Module.

Confidentiality Period means the Confidentiality Obligations period specified in the Provision, and if none is specified, 5 years from the end of the Agreement.

Confidentiality Purpose means the purpose for which the Recipient is allowed to use the Confidentiality Subject, as specified in the Provision.

Confidentiality Subject means the information described in the Provision, or any part of that 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.

Cost means any cost, expense, loss, damage, claim, demand, proceeding, judgment, settlement, lawyer or attorney’s fees, court cost, or other liability.

Cover All Costs

Application of Indemnity

  • The 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, however caused, in connection with each of the Indemnified Risks.

Scope of Indemnity

  • The Indemnified Party must use reasonable endeavours to mitigate any Cost that arises that is subject to an Indemnity.
  • The Indemnity will not apply to Costs that are the subject of an Indemnity Exception, to the extent of that Indemnity Exception.

Separate indemnities

Each Indemnified Risk described in the Provision will give rise to a separate indemnity in relation to that Indemnified Risk on the terms and conditions in the Module.

Indemnity details

Any Indemnity created by the Provision:

  • 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 Provision, the Indemnified Party may make a claim under any Indemnity before any liability is crystallised, loss sustained or cost incurred.

Discloser means the party or parties identified in the Provision as the party to whom Confidentiality Obligations are owed.

Disclosing Party means the party disclosing Confidential Information under the Agreement.

Example Limitation Risk means any liabilities arising from the risks described below.

Risks from advice, including:

  • reliance on advice or opinions in whatever form;
  • any privacy request, inquiry, investigation, complaint or enforcement procedure;
  • 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;
  • any investigation, inquiry or enforcement action by the Office of the Australian Information Commissioner connect with conduct;
  • breach of any law in connection with spam;
  • the storage of any third party data; and
  • corrupted or lost data.

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 the Agreement;
  • any delay connected with the Agreement; and
  • breaches of the Agreement, including Subscriber’s breach of its privacy obligations under the Agreement.

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

Indemnified Party means the party who is indemnified under the Provision.

Indemnified Risk means the areas of risk or potential liability described in the Provision.

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.

Indemnifying Party means the party providing the Indemnity under the Provision.

Indemnity means any indemnity created via the operation of the Provision and the Module.

Indemnity Exception means any exception described in the Provision to any Indemnity, Indemnities or Indemnified Risk.

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

Parties

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

Grammatical Forms

  • 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;
  • “$” means the Australian dollar;

Document References

  • 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;
  • any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource;

Rights and Obligations

  • 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.

Binding version of the Agreement

  • If the Agreement is signed on Codepact.com, the version displayed on the (or future equivalent) route of the Codepact interface will take precedence over any other version on the interface.
  • To the extent of any inconsistency between the signed version on the Codepact interface and any other embodiment of the agreement (like email), the Codepact.com version will take precedence.

Keep Secret

Obligation of confidentiality

  • Recipient agrees to use the Confidentiality Subject solely for the Confidentiality Purpose.
  • Recipient agrees to keep the Confidentiality Subject strictly confidential for the Confidentiality Period.

Standard of confidentiality

Recipient agrees to:

  • use industry standard security techniques to prevent;
  • immediately notify Discloser of;
  • comply with Discloser’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 Recipient is responsible in whole or in part.

Permitted disclosures

  • Recipient may disclose the Confidentiality Subject to professional advisors, like lawyers or accountants, but only to the extent necessary for the Confidentiality Purpose.
  • Recipient 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 Recipient;
  • Recipient 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 Recipient must not make such a disclosure without first notifying Discloser and giving Discloser a reasonable opportunity to object to the disclosure.
  • Recipient must comply with Discloser’s reasonable requests with regard to any permitted disclosure.
  • Recipient 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 the Confidentiality Obligations.

Exceptions

Where there is a Confidentiality Exception, the 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 Recipient’s breach of the Confidentiality Obligations.
  • If Recipient actually breaches or threatens to breach the Confidentiality Obligations, Discloser will be entitled to enforce Recipient’s Confidentiality Obligations by injunctive relief or specific performance, in addition to any other available remedy. The Discloser will not be required to prove actual or special damage in order to do so.

Mutual obligations

The Confidentiality Obligations may be mutual so that, if specified in the Provision, each party to the Agreement may simultaneously be a Discloser with respect to its own Confidentiality Subject and a Recipient with respect to another party’s Confidentiality Subject.

Limitation Exception means the exception to the limitation of liability in the Module that the Provision may or may not describe.

Limitation Risk means the risks that may cause liability described in the Provision.

Limitation Subject means the subject(s) of the limitation of liability in the Provision (if any).

Limited Party means the party whose ability to recover Costs is limited by the limitation of liability in the Provision.

Limited To The Legal Minimum

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.

Limiting Party means the party relying on the limitation of liability in the Provision.

Module means the module of terms and conditions imported with a defined phrase by the relevant Provision.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Provision means, in relation to a particular instance of a defined phrase, the provision in the Agreement that uses the defined phrase.

Recipient means the party or parties identified in the Provision as owing Confidentiality Obligations to the other party or parties.

Recipient Party means the party that receives Confidential Information from the Disclosing Party.

Sensitive Information has the meaning given to that term in the Privacy Act 1988 (Cth).