TERMS AND CONDITIONS
This Agreement is entered into between us and you, together the Parties and each a Party.
1.1 In consideration of your payment of the Fee, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
1.2 If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.
1.3 Notwithstanding clause 3, you agree that we may amend the Services or the Fee at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or Fee, you may terminate this Agreement in accordance with clause 13.1.
2.1 You can make a request for an appointment via telephone, WeChat or as otherwise agreed by us (Appointment Request). We may, at our discretion, accept or reject an Appointment Request. If we accept an Appointment Request, we will confirm with you via telephone and/or WeChat setting out the details of your appointment, including the date and time (Appointment). You must have an Appointment with us prior to engaging in the Services.
3. Cancellation and rescheduling
3.1 You may cancel or reschedule your Appointment free of charge, provided you give us at least [48 hours] notice. If you cancel or reschedule your Appointment within [48 hours] of the scheduled Appointment, or you otherwise do not show up to the Appointment, you may be charged a Cancellation Fee [$200 per booking]. You acknowledge and agree that the Cancellation Fee, is a genuine pre-estimate of our loss suffered as a result of your failure to provide us notice of your inability to attend your scheduled Appointment.
3.2 Due to unforeseen circumstances, including but not limited to illness or a pandemic or government enforced lockdowns or shutdowns, you acknowledge that we may need to reschedule the date of your Appointment. Where we need to reschedule an Appointment, we will notify you at our earliest convenience and we will reschedule at a time to be agreed between the Parties.
3.3 We reserve the right to terminate an Appointment at any time where you have disclosed medical or health information to us which, in our reasonable opinion, means we are unable to safely provide the Services to you. In such cases, we will cancel the Appointment and we may reschedule the Appointment with you provided that the medical or health information you provided to us is no longer relevant and will no longer impact our ability to provide the Services.
3.4 If we are not able to reschedule the Appointment or provide the Services as per the requirements in clause 3.3, we will provide a refund of the portion of the Fee in relation to the Services that we have not yet provided, where you have paid 100% of the Fee upfront.
4.1 All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.
5.1 In consideration for us providing the Services, you agree to pay us the Fee, in accordance with the Payment Terms.
5.2 Services may be bulk-billed through Medicare where eligible. If you are eligible for Medicare, and bulk billing is available, you acknowledge and agree that you will need to claim the Medicare benefit directly through Medicare.
5.3 You acknowledge and agree that additional procedures, treatments or appointments outside of the Term may be required in order to achieve desired results. To the extent permitted by applicable law, any further treatment or services, including the treatment of any side effects or complications, will incur additional fees over and above the Fees paid for the Services.
5.4 When applicable, GST is payable on the Fee and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
5.5 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at law):
(a) after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
5.6 If you elect to pay 100% of the Fee upfront, you will not be entitled to any part of the Services until the Fee has been paid in full.
6. Warranties and Representations
6.1 You represent, warrant and agree:
(a) to comply with this Agreement and all applicable Laws;
(b) you are 18 years old or older;
(c) that all information and documentation that you provide to us (including health and medical information) in connection with this Agreement is true, correct and complete;
(d) that you (and to the extent applicable, your Personnel) will provide us with all documentation, information (including all relevant personal, health and fitness information before and during the Services), instructions, cooperation and access reasonably necessary to enable us to provide the Services;
(e) to comply with our reasonable requests or requirements;
(f) that you are in good physical condition and you are not aware of any medical condition or other reason why you should not receive the Services;
(g) to the extent permitted by applicable Law, we cannot guarantee results of any Treatment and that results may vary; and
(h) that we reserve the right to refuse services to you for any reason, at our discretion, and at any time. This includes clinical grounds, psychological grounds or a mismatch between desired and likely results.
7. Intellectual Property
7.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
7.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
7.3 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Services, as contemplated by this Agreement.
7.4 You grant us a non-exclusive, irrevocable, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence, to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.
7.5 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
7.6 This clause 7 will survive termination or expiry of this Agreement.
8.1 You acknowledge and agree that we may take clinical photos of you during or at the end your appointments (Photographs).
8.3 Subject to us taking reasonable steps to ensure you are not identifiable in the Photographs, you consent to us using the Photographs for the following purposes:
(a) for marketing and advertising, including through print, online, our website, social media and television; and
(b) for educational resources, including printed and online leaflets, brochures, posters, publications, blogs, videos, articles, and case studies.
8.4 You agree that you will not take personal recordings including photographs, audio and video of a representative of the facility, or your appointment without our prior written consent.
9. Medical Records
9.1 We may hold medical records in line with applicable Laws, even upon termination of this Agreement.
9.2 Medical records will be held electronically in secure storage by us during the Term.
9.3 In the event of termination of this Agreement, you may request that we transfer a copy of all medical records created by you during the Term.
9.4 This clause 9 will survive termination or expiry of this Agreement.
10. Confidential Information
10.1 Subject to clause 10.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party.
10.2 Clause 10.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing party ensures the adviser complies with the terms of clause 10.1.
10.3 This clause 10 will survive the termination of this Agreement.
11. Australian Consumer Law
11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in this Agreement excludes those Consumer Law Rights.
11.2 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
11.3 This clause 11 will survive the termination or expiry of this Agreement.
12. Limitations on liability
12.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss;
(c) we will not be liable for any or all Liability arising out of or in connection with:
(1) your breach of clause 6.1(c); and
(2) your negligent acts or omissions;
(d) (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) paying the cost of having the Services supplied again;
(e) you agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with any property loss or damage, or personal injury or loss, arising from or in connection with your use of the Services; and
(f) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Fee paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
12.2 This clause 12 will survive the termination or expiry of this Agreement.
13. Term and Termination
13.1 Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party.
13.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
13.3 Upon expiry or termination of this Agreement:
(c) we will immediately cease providing the Services;
(d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(e) by us pursuant to clause 13.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(f) upon request, a Party must destroy or return the confidential information of the other Party, except for any confidential information required to be maintained by law.
13.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
13.5 This clause 13 will survive the termination or expiry of this Agreement.
14.1 Publicity: Despite clause 10, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.
14.2 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
14.3 Amendment: Subject to clause 3 and clause 1.3 This Agreement may only be amended by written instrument executed by the Parties.
14.4 Assignment: Subject to clause 14.5, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
14.5 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
14.6 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 14.6. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
14.7 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
14.8 Governing law: This Agreement is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
14.9 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
14.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in Queensland, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is signed by the last of the Parties.
Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:
(a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into this Agreement as the probable results of the relevant breach, act or omission; and/or
(b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.
However, the Parties agree that your obligation to pay us the Fee under this Agreement will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 11.1.
Dispute has the meaning given in clause 14.6.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Services, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.
Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Fee means the price set out in the Schedule, as adjusted in accordance with this Agreement.
Schedule means the schedule to this Agreement.
Services means the services set out in the Schedule, as adjusted in accordance with this Agreement.
Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property.