Physiotheory’s Terms of Trade
These Terms encompass the terms and conditions that apply to any contracts or other dealings that any entity which is a member of, or an associated or related entity of any one of the Physiotheory.
You will be notified which particular entity of Physiotheory that you are entering into a contract with for each individual part of project or otherwise by the name and ABN on each individual quote or invoice that you receive. For the purposes of this document, the term “Physiotheory” encompasses all of the entities in the Physiotheory of company.
Terms
Introduction
Physiotheory aims to provide an information and physical treatment to its customers in relation to health and general wellbeing including the provision of assessments, exercise programs, suction cupping, dry needling, manipulations and mobilisation.
It is agreed:
1. Definitions and interpretation
1.1Definitions
In these Terms:
In these Terms:
Agreementmeans these Terms (the parties agree that these Terms form part of any dealings between the parties).
Business Daymeans any day other than a Saturday, Sunday or public holiday in Queensland, Australia.
Confidential Informationmeans the confidential information of a party which relates to the subject matter of this Agreement and includes without limitation, information relating to:
(a)personal information, including but not limited to names and contact details as provided by customers;
(b)the personnel, policies, intellectual property or programs created by Physiotheory and DailyEd; and
(c)the terms and pricing upon which the Services are offered pursuant to this Agreement.
Corporations Actmeans the Corporations Act 2001 (Cth) as amended.
Client Servicesmeans services that the Client provides in its business.
Disputemeans a dispute between the parties in relation to this Agreement.
Dispute Noticemeans a notice from a party to another party, advising that there is a Dispute with the other party and giving details of the Dispute.
Feesmeans the fees and charges which the Client must pay Physiotheory as specified in the Terms and Conditions, or separately agreed in writing between the parties.
GSThas the same meaning as in the GST Act.
GST Actmeans A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Lossmeans any loss, cost, expense or damage (including legal costs, and costs of collection of outstanding monies, on a full indemnity basis).
Servicesmeans the goods and services which Physiotheory agrees to provide under this Agreement.
Appointmentmeans the appointment provided by staff from Physiotheory.
Subscription Periodmeans a period of 12 months from the date of purchase of subscription.
Third Party Softwaremeans any computer software (which may include open source software) which is incorporated into the Technology, and in which the Intellectual Property Rights therein are owned by a third party.
Third Party Suppliermeans a third party supplier to the Client (which may include a person who provides Third Party Software), whom Physiotheory must work with in relation to the delivery of the Services.
1.2Interpretation
In this Agreement, unless the contrary intention appears:
In this Agreement, unless the contrary intention appears:
(a)the terms “includes” or “including” respectively mean “includes without limitation” and “including without limitation”;
(b)the singular includes the plural and vice versa;
(c)a reference to any gender includes a reference to all other genders;
(d)a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
(e)if two or more persons are named as a party to this Agreement, then those persons are bound both jointly and severally;
(f)where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(g)an agreement, representation or warranty made in favour of two or more persons is made for the benefit of them jointly and for each of them severally;
(h)headings are inserted for convenience only and do not affect the interpretation of this Agreement; and
(i)where any action is required by this Agreement to be done on a given day and that day is not a Business Day then the act is required to be done on the next following Business Day.
2. Provision of the services
2.1Services to be provided
Subject to these terms and conditions, Physiotheory agrees to provide the Services during the Appointment time. Additional services outside Appointment times may incur a further cost.
Subject to these terms and conditions, Physiotheory agrees to provide the Services during the Appointment time. Additional services outside Appointment times may incur a further cost.
2.2Term of agreement between the parties
Subject to the terms and conditions of the Agreement, Physiotheory agrees to provide the Services to its customers during Appointments.
Subject to the terms and conditions of the Agreement, Physiotheory agrees to provide the Services to its customers during Appointments.
3. Provision of physical and online exercise regimes and/or programs
3.1Commencement of program
The contract commences upon payment of the customer.
The contract commences upon payment of the customer.
3.2The product requirements
(a)The Product Requirements for physical or online exercise regimes and/or programs comprise of:
(i)step-by-step tutorials and guides; and
(ii)accessibility via app using individual log in details or handouts.
(b)The Product Requirements may evolve over time to incorporate any of the changes made thereto pursuant to the methods described in clause 4.2(a). Any update made to the Product Requirements will be deemed to override any previous version of the Product Requirements.
(c)If there is any dispute between the parties as to the content of the Product Requirements, then Physiotheory’s reasonable determination in this regard will be final and binding on the parties.
4. Support services
4.1Support services
(a)The Support Services will be as follows: the provision of a contact email, whereby the Client may place queries with Physiotheory in relation to the use of the programs or education.
(b)The Support Services will commence upon the parties entering into the Agreement.
(c)The Support Services will be provided to the Client in conjunction with the Agreement for the time of the Client’s most recent Appointment, and will end at the time of the last Appointment of the Client.
(d)The Client acknowledges that Physiotheory may refuse to provide Support Services where:
(i)the Client is in breach of this Agreement; or
(ii)the error or defect reported by the Client is determined by Physiotheory to not be an error or defect, or is outside any fair use policy in place by Physiotheory.
5. Client’s responsibilities
5.1The Client will:
(a)meet all requirements of the Client which are specified in the Agreement; and
(b)assume responsibility in relation to the risks associated with any exercise regimes or programs as outlined by Physiotheory. The Client will not continue exercise or education regimes if they are experiencing adverse effects.
5.2The Client acknowledges and agrees that:
(a)Physiotheory’s delivery of the Services is dependent on the Client meeting its obligations under clause 5.1; and
(b)any breach by the Client of its obligations under clause 5.1 may result in a delay, or failure, by Physiotheory to deliver the Services.
6. Fees
6.1How fees are calculated
(a)The Fees are calculated on a fixed basis for the provision of Physiotheory’s Services during the Subscription Period.
(b)Physiotheory may at any time increase its Fees, or the basis upon which it charges its Fees, to reflect the same increase to its standard fees and charges which it generally charges its other customers. Physiotheory will provide the Client with 30 days’ written notice of any increase in the Fees, and what the new Fees will be, and the increase will then take effect at the end of that 30 day period.
6.2Payment terms
The Client will pay the Fees in accordance with the payment terms specified in the Agreement or as specified elsewhere in these Terms. If the Agreement or these Terms do not specify a time for payment, then the Fees will be payable within 7 days of the Client receiving an invoice from Physiotheory requesting such payment.
The Client will pay the Fees in accordance with the payment terms specified in the Agreement or as specified elsewhere in these Terms. If the Agreement or these Terms do not specify a time for payment, then the Fees will be payable within 7 days of the Client receiving an invoice from Physiotheory requesting such payment.
6.3GST
Apart from where expressly stated to the contrary, all amounts payable under this Agreement (“Consideration”) are expressed on a GST exclusive basis.
Apart from where expressly stated to the contrary, all amounts payable under this Agreement (“Consideration”) are expressed on a GST exclusive basis.
7. Implied terms and disclaimer
7.1Acknowledgements, representations and warranties
(a)The Client acknowledges that Physiotheory has made no representations or provided any warranties that the Services will be error or defect-free.
(b)The Client acknowledges that Physiotheory has not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Physiotheory, other than those warranties expressly contained in these Terms or any Agreement.
7.2Consequential loss
Subject to these Terms, the Client agrees that Physiotheory will not be liable in respect of any claim by the Client (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any physical injuries arising out of or in connection with the provision of the Services or the provision of any other goods or services under any Agreement and whether as a result of any breach, default, or negligence by Physiotheory.
Subject to these Terms, the Client agrees that Physiotheory will not be liable in respect of any claim by the Client (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any physical injuries arising out of or in connection with the provision of the Services or the provision of any other goods or services under any Agreement and whether as a result of any breach, default, or negligence by Physiotheory.
7.3Maximum liability
Subject to these Terms, the maximum liability of Physiotheory to the Client for any and all breaches of any Agreement between the parties, or for any and all negligence in relation to any Agreement between the parties, will be no greater than the Fees paid by the Client to Physiotheory under the Agreement.
Subject to these Terms, the maximum liability of Physiotheory to the Client for any and all breaches of any Agreement between the parties, or for any and all negligence in relation to any Agreement between the parties, will be no greater than the Fees paid by the Client to Physiotheory under the Agreement.
7.4Implied warranties which cannot be excluded
(a)Any of these terms and conditions which limit or exclude any term, condition or warranty, express or implied, or the liability of Physiotheory will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of the Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
(b)Notwithstanding this clause, for Australian consumers, Physiotheory’s products come with guarantees that cannot be excluded under the Australian Consumer Law. If the Client is an Australian consumer, it may be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Client may also be entitled to have the Services repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure. For more information about these rights please go to www.accc.gov.au.
8. Termination of this agreement
8.1Material breach
A party may terminate the Agreement by written notice to the other party if:
A party may terminate the Agreement by written notice to the other party if:
(a)the other party has materially breached the Agreement; and
(b)if the material breach is capable of rectification:
(i)the non-defaulting party has provided 14 days’ written notice to the other party specifying the nature of the alleged material breach and requesting the other party to rectify the material breach within that 14 day period; and
(ii)the other party has failed to rectify the material breach within the 14 day period specified in the notice given under clause 8.1(b)(i).
8.2Termination by Physiotheory
Physiotheory may terminate the Agreement at any time and for any reason on the provision of 30 days’ written notice to the Client.
Physiotheory may terminate the Agreement at any time and for any reason on the provision of 30 days’ written notice to the Client.
8.3Termination by the Client
The Client may terminate the Agreement at any time and for any reason on the provision of 30 days’ written notice to Physiotheory.
The Client may terminate the Agreement at any time and for any reason on the provision of 30 days’ written notice to Physiotheory.
8.4Effect of termination
Upon the termination of the Agreement:
Upon the termination of the Agreement:
(a)Physiotheory will cease to provide all Services to the Client; and
(b)the Client will be liable for fees that are outstanding from Appointments provided.
9. Disputes
9.1Dispute resolution
(a)A party who has a Dispute with another party may serve a Dispute Notice on the other party.
(b)If a party serves a Dispute Notice on another party, then the party may require the other party to attempt to settle the Dispute at mediation, with a mediator chosen by both of them. If they cannot agree on the identity of the mediator or the location and date and time of the mediation, the parties will request the President for the time being of the Queensland Law Society to nominate a mediator and the location and date and time of the mediation. The method of conducting the mediation will be nominated by the mediator.
(c)The cost of the mediator and the mediation (apart from each party’s legal costs) will be borne equally between the parties.
9.2Other rights not affected
A party may exercise any of their rights and remedies afforded under this Agreement in addition to exercising their rights under this clause 9. Nothing in this clause 9 will prohibit a party from instituting legal proceedings in relation to the Agreement.
A party may exercise any of their rights and remedies afforded under this Agreement in addition to exercising their rights under this clause 9. Nothing in this clause 9 will prohibit a party from instituting legal proceedings in relation to the Agreement.
10. Miscellaneous
10.1Notices
Any notice given under these Terms or any Agreement must be in writing and must be signed by the party giving the notice. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
Any notice given under these Terms or any Agreement must be in writing and must be signed by the party giving the notice. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
(a)in the case of a notice delivered by hand, when so delivered;
(b)in the case of a notice sent by prepaid registered post, on the fourth clear Business Day after the date of posting;
(c)in the case of a notice sent by email, upon the recipient or their email server confirming receipt of the notice; and
(d)in the case of a notice sent via a Project Management Tool, the date that the notice has been published to the Project Management Tool.
10.2Variation
The provisions of these Terms or any Agreement will not be amended or varied, except by a document in writing signed by the parties.
The provisions of these Terms or any Agreement will not be amended or varied, except by a document in writing signed by the parties.
10.3Relationship of the parties
The parties acknowledge that Physiotheory performs its obligations in its capacity as a contractor only and in no circumstances will Physiotheory or its employees or agents be deemed to be the employee, servant or agent of the Client.
The parties acknowledge that Physiotheory performs its obligations in its capacity as a contractor only and in no circumstances will Physiotheory or its employees or agents be deemed to be the employee, servant or agent of the Client.
10.4Subcontracting
The Client agrees that Physiotheory may subcontract any of its obligations arising under these Terms or any Agreement.
The Client agrees that Physiotheory may subcontract any of its obligations arising under these Terms or any Agreement.
10.5Costs
Subject to any term in the Agreement to the contrary, each of the parties shall be responsible for its own costs and expenses of and in connection with the negotiation, preparation, execution, stamping, registration and completion of any Agreement and of any document contemplated by the Agreement.
Subject to any term in the Agreement to the contrary, each of the parties shall be responsible for its own costs and expenses of and in connection with the negotiation, preparation, execution, stamping, registration and completion of any Agreement and of any document contemplated by the Agreement.
10.6Unavoidable events
No failure or omission to carry out or observe any term of this Agreement will give rise to a claim by the Client against Physiotheory or result in a breach of the Agreement by Physiotheory if such failure or omission arises by reason of delay or inability to perform caused by:
No failure or omission to carry out or observe any term of this Agreement will give rise to a claim by the Client against Physiotheory or result in a breach of the Agreement by Physiotheory if such failure or omission arises by reason of delay or inability to perform caused by:
(a)war, whether declared or not, civil rebellion, strike, fire, storm or other severe action of the elements, accident, government, cyber crime or statutory restriction;
(b)the failure of any computer software of the Client or other Third Party to inter-operate with or host the Technology;
(c)the failure of a Third Party Supplier to perform their obligations in relation to the delivery of the Services;
(d)the failure of any Third Party contracted by Physiotheory to perform their obligation to either party; or
(e)other similar causes which are unavoidable or beyond the reasonable control of the defaulting party.
10.7Further acts
The Client will without further consideration sign, execute and deliver any document and shall perform any other act which may be reasonably necessary or desirable to give full effect to any Agreement between the parties.
The Client will without further consideration sign, execute and deliver any document and shall perform any other act which may be reasonably necessary or desirable to give full effect to any Agreement between the parties.
10.8Entire understanding
The documents comprising the Agreement supersede all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of the Agreement and set forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of the Agreement.
The documents comprising the Agreement supersede all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of the Agreement and set forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of the Agreement.
10.9Successors and assigns
The Agreement shall enure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
The Agreement shall enure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
10.10No waiver
The Agreement shall enure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
The Agreement shall enure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
10.11Partial exercise of rights
No single or partial exercise by any party of any right, power or remedy under the Agreement shall preclude any other or further exercise of that or any other right, power or remedy.
No single or partial exercise by any party of any right, power or remedy under the Agreement shall preclude any other or further exercise of that or any other right, power or remedy.
10.12No exclusion of rights
The rights, powers or remedies provided in the Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of the Agreement.
The rights, powers or remedies provided in the Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of the Agreement.
10.13Severance
If any provision of the Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of the Agreement to the intent that the invalid or unenforceable provision will be treated as severed from the Agreement.
If any provision of the Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of the Agreement to the intent that the invalid or unenforceable provision will be treated as severed from the Agreement.
10.14Assignment
(a)The Client may not assign or novate the Agreement or any of its rights, powers or remedies under the Agreement without the prior written consent of Physiotheory (which may be withheld).
(b)Physiotheory may assign or novate its rights and obligations arising under the Agreement without the prior consent of the Client.
10.15Counterparts
The Agreement may consist of a number of counterparts, each of which when signed or agreed to or otherwise acknowledged shall be an original and all the counterparts together shall constitute one and the same instrument.
The Agreement may consist of a number of counterparts, each of which when signed or agreed to or otherwise acknowledged shall be an original and all the counterparts together shall constitute one and the same instrument.
10.16Indemnity
Each indemnity under the Agreement is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under the Agreement and shall survive the execution, delivery, completion and termination of the Agreement.
Each indemnity under the Agreement is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under the Agreement and shall survive the execution, delivery, completion and termination of the Agreement.
10.17Recitals
The parties acknowledge that the Recitals are true and correct and shall form part of the Agreement.
The parties acknowledge that the Recitals are true and correct and shall form part of the Agreement.
10.18Rule of construction
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms or any documents making up the Agreement or part of it.
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms or any documents making up the Agreement or part of it.
10.19Independent advice
The Client acknowledges that it has been encouraged by Physiotheory to obtain independent legal advice and warrants and represents to Physiotheory that it has obtained such advice prior to entering into this Agreement.
The Client acknowledges that it has been encouraged by Physiotheory to obtain independent legal advice and warrants and represents to Physiotheory that it has obtained such advice prior to entering into this Agreement.
10.20Governing law and jurisdiction
(a)This Agreement shall be construed in accordance with and shall be governed by the laws in force in the State of Queensland.
(b)Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Queensland or the Commonwealth of Australia and any courts of appeal from these courts.