Terms of Trade
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 company.
Terms
Introduction
A. Physiotheory is an online platform that aims to provide an information database to its customers in relation to health and general wellbeing including the provision of exercise programs and regimes.
It is agreed:
1. Definitions
1.1 In these Terms
Agreement | Means these Terms (the parties agree that these Terms form part of any dealings between the parties). |
Business Day | means any day other than a Saturday, Sunday or public holiday in Queensland, Australia |
Confidential Information | means the confidential information of a party which relates to the subject matter of this Agreement and includes without limitation, information relating to:
|
Corporations Act | means the Corporations Act 2001 (Cth) as amended |
Client Services | means services that the Client provides in its business |
Dispute | means a dispute between the parties in relation to this Agreement |
Dispute Notice | means a notice from a party to another party, advising that there is a Dispute with the other party and giving details of the Dispute |
Fees | means:
|
GST | has the same meaning as in the GST Act |
GST Act | means A New Tax System (Goods and Services Tax) Act 1999 (Cth) |
Loss | means any loss, cost, expense or damage (including legal costs, and costs of collection of outstanding monies, on a full indemnity basis) |
Services | means the goods and services which Physiotheory agrees to provide under this Agreement. |
Subscription | means a subscription to the services for the Subscription Period. |
Subscription Period | means a period of 12 months from the date of purchase of subscription. |
Support Services | means the Services described in clause 5.2(a) |
Support Term | has the meaning given in clause 5.2(d) |
Third Party Software | means 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 Supplier | means 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 |
1.2 Interpretation
In this Agreement, unless the contrary intention appears:
the terms “includes” or “including” respectively mean “includes without limitation” and “including without limitation”;
the singular includes the plural and vice versa;
a reference to any gender includes a reference to all other genders;
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;
if two or more persons are named as a party to this Agreement, then those persons are bound both jointly and severally;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
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;
if an act required to be done under this Agreement on or by a given day is done after 5:00 pm on that day, it is taken to be done on the following day;
headings are inserted for convenience only and do not affect the interpretation of this Agreement; and
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
2.1 Services to be provided
Subject to these terms and conditions, Physiotheory agrees to provide the Services during the Subscription Period.
3. Term of agreement between the parties
Subject to the terms and conditions of the Agreement, Physiotheory agrees to provide the Services to its customers. The Agreement/Contract term is 12 months and is subject to annual renewal by the customer.
4. Provision of online exercise regimes and/or programs
4.1 Commencement of program
The contract commences upon payment of the subscription fee by the customer.
4.2 The product requirements
a) The Product Requirements for online exercise regimes and/or programs comprise of:
i) Step-by-step tutorials and guides
ii) Accessibility via the internet website using individual log in details
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.
5. Support services
5.1 Support services
a) The Support Services will be as follows:
i) the provision of a contact phone number or email, whereby the Client may place queries with Physiotheory in relation to the use of the programs, or any error in the accessibility of the website and/or programs;
ii) the attempted rectification of errors in the accessibility of the website and/or programs which are reported by the Client to Physiotheory.
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 Subscription Period, and will automatically renew for subsequent periods of the same duration upon the Client renewing its Subscription.
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
is outside any fair use policy in place by Physiotheory
6. Client’s responsibilities
6.1 The client will
a) meet all requirements of the Client which are specified in the Agreement;
b) assume responsibility in relation to the risks associated with any exercise regimes or programs as outlined by Physiotheory.
6.2 The client acknowledges and agrees that:
a) Physiotheory’s delivery of the Services is dependent on the Client meeting its obligations under clause 6.1; and
b) any breach by the Client of its obligations under clause 6.1 may result in a delay, or failure, by Physiotheory to deliver the Services.
7. Fees
7.1 How 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.
7.2 Payment terms
a) 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.
7.3 GST
a) Apart from where expressly stated to the contrary, all amounts payable under this Agreement (“Consideration”) are expressed on a GST exclusive basis.
8. Implied terms and disclaimer
8.1 Acknowledgements, 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.
8.2 Consequential loss
Subject to these Terms, the Client agrees that Physiotheory will not be liable in respect of any claim by the Client (whether contractual, tortuous, 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.
8.3 Maximum 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.
8.4 Implied 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.
9. Termination of this agreement
9.1 Material breach
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:
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
the other party has failed to rectify the material breach within the 14 day period specified in the notice given under clause 17.2(b)(i).
9.2 Termination 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.
9.3 Termination 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.
9.4 Effect of termination
a) Upon the termination of the Agreement:
Physiotheory will cease to provide all Services to the Client; and
The Client will be liable for fees incurred in relation to the Subscription and is not entitled to a refund on a pro-rata basis or otherwise.
10. Disputes
10.1 Dispute 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.
10.2 Other 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 18. Nothing in this clause 18 will prohibit a party from instituting legal proceedings in relation to the Agreement.
11. Miscellaneous
11.1 Notices
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.
11.2 Variation
The provisions of these Terms or any Agreement will not be amended or varied, except by a document in writing signed by the parties.
11.3 Relationship 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.
11.4 Subcontracting
The Client agrees that Physiotheory may subcontract any of its obligations arising under these Terms or any Agreement.
11.5 Costs
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.
11.6 Unavoidable 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:
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) from other similar causes which are unavoidable or beyond the reasonable control of the defaulting party.
11.7 Further 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.
11.8 Entire understanding
The documents comprising the Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of the Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of the Agreement.
11.9 Successors and assigns
The Agreement shall ensure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
11.10 No waiver
The Agreement shall ensure to the benefit of and be binding upon each of the parties and their respective successors and authorised assigns.
11.11 Partial 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.
11.12 No 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.
11.13 Severance
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.
11.14 Assignment
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.
11.15 Counterparts
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.
11.16 Indemnity
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.
11.17 Recitals
The parties acknowledge that the Recitals are true and correct and shall form part of this the Agreement.
11.18 Rule 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.
11.19 Independent 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.
11.20 Governing Law and Jurisdiction
This Agreement shall be construed in accordance with and shall be governed by the laws in force in the State of Queensland.
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.