This is an Agreement
- By using this Website, you agree that you are bound by the terms of this Agreement. This Agreement is formed between you and Neo Health (OTC) Pty Ltd ACN 147 894 415 of Unit 20, 1 Central Avenue, Thornleigh, NSW 2120, Australia.
- We are the owners of the website, and the Intellectual Property Rights associated with it. We wish to provide you with a limited licence to use the website, and by using the website, you agree to do so on the terms of this Agreement.
- If you do not agree to any of the provisions of this Agreement, you must not use the website. We reserve the right to make changes to this Agreement from time to time at our sole discretion. By continuing to use the website, you agree to be bound by any changes we make. We are not obliged to notify you of any changes but we will endeavour to alert you of any significant changes. We encourage you to print and keep a copy of this Agreement for your records and to check back here from time to time.
2. Definitions & Interpretation
In this Agreement:
Agreement means this agreement and any schedule or annexure to it;
Commencement Date means the date on which you start using the website;
Confidential information includes, but is not limited to:
(a) all information relating to trade secrets, know-how, financial information and other commercially valuable information of whatever description and in whatever form (whether written or oral) which may be disclosed by one Party to the other in connection with this Agreement or otherwise concerning the website, any technology, marketing strategies and business of the disclosing Party, the terms of this Agreement and any information which is by its nature confidential,
but does not include:
(b) information already known to the receiving Party at the time of disclosure by the other Party or information in the public domain other than
as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;
Hacking has the meaning given to it by clause 5.1 of this Agreement;
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, moral rights, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
Licence means the limited licence to access and make personal use the website granted by us to you on the terms of this Agreement;
Parties means the parties to this Agreement, namely you and us;
Website means the Neo Health (OTC) website located in the domain neohealth.com.au as well as any applications and associated functionalities, software, materials or documentation that are supplied to you by us under this Agreement;
Update means an update of the website published by us from time to time, produced primarily to overcome defects or provide bug fixes in the website; and
Upgrade means a version of the website which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the website.
In this Agreement, unless the context otherwise requires:
- (a) headings and notes in square brackets are for convenience only and do not affect the interpretation of this Agreement, except for the purpose of rectifying any erroneous cross-reference;
- (b) words importing the singular include the plural and vice versa;
- (c) words importing a gender include all genders;
- (d) a reference to a paragraph, clause, or schedule is a reference to a paragraph, clause, or schedule to this Agreement;
- (e) references to any document or agreement include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;
- (f) all monetary amounts referred to in this Agreement are in AUD or Australian currency unless expressly stated otherwise; and
- (g) a reference to a party to this Agreement includes that party’s legal successors (including executors and administrators) and permitted assigns.
2.3 The Rule about Contra Proferentem
This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself.
3. Grant of Licence and Conditions
3.1. We grant the Licence to you, the Customer, and you accept the Licence on the terms of this Agreement.
3.2. The Licence:
- (a) is personal to you, and is non-transferable and non-exclusive;
- (b) does not entitle you to download (other than page caching) or modify any part of the website;
- (c) does not entitle you to, and expressly prohibits you from:
- (i) any resale or commercial use of the website or its contents;
- (ii) any derivative use of this website or its contents;
- (iii) any use of data mining, robots, or similar data gathering and extraction tools;
- (iv) frame or utilise framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Neo Health (OTC) without our prior written consent; or
- (v) use any meta tags or any other “hidden text” utilising Neo Health (OTC)’ Intellectual Property Rights without our prior writeen consent.
- (vi) We are not required to provide updates or upgrades of the website under this Agreement.
4. Ownership and Intellectual Property Rights
4.1. Notwithstanding anything written elsewhere in this Agreement or in any other document, we retain ownership of the website whether in its original form or as modified by you (or by your officers, employees, contractors, associates, affiliates or agents).
4.2. All Intellectual Property Rights in the website are vested in and retained by us. For the avoidance of doubt, nothing in this Agreement gives rise to any assignment, acquisition, transfer or conveyance of any kind whatsoever of any Intellectual Property Rights to you.
4.3. If you correspond or otherwise communicate with us or post or publish any statement about our website, you automatically grant to us an irrevocable, perpetual, non-exclusive, royalty-free, world-wide license to use, copy, display and distribute that content and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote that content. This may include, but is not limited to, publishing testimonials and developing your ideas and suggestions for improved products or services we provide.
4.4. You indemnify us against any loss or damage suffered or incurred by us as a result of your infringement (or the infringement by your officers, employees, contractors, associates, affiliates or agents) of the Intellectual Property Rights attaching to the website.
5. No Hacking
5.1. You must not attempt to or succeed in copying, decompiling or disassembling, reverse engineering, hacking, hijacking, defacing, mounting any form of denial of service attack, discovering or accessing any source code related to the website (together, Hacking), in whole or in part, under any circumstances except with our prior written permission (which we can grant or withhold in our absolute discretion).
5.2. You must notify us immediately if you become aware of any Hacking of the website or any part of it.
5.3. You acknowledge that any Hacking of the website would cause significant harm to our business which could not be calculated by damages alone, and that the award of other legal and equitable remedies such as specific performance would be required in addition to monetary damages to adequately compensate us for any Hacking of the website by You or any other person. You fully indemnify us and hold us harmless against any liability incurred as a result of any Hacking of the website by you (or by your officers, employees, contractors, associates, affiliates or agents).
6. No Modifications
6.1. You must not modify, alter or improve upon the website or any part of it or combine or incorporate the website or any part of it in any other website, program or system without our prior written permission (which may be granted or withheld in our absolute discretion).
6.2. You fully indemnify us and hold us harmless against any liability incurred if any modifications, alterations or improvements to the website are made by you (or by your officers, employees, contractors, associates, affiliates or agents), whether authorised or otherwise, which infringe our Intellectual Property Rights or those of any third person.
6.3. If the website is modified, altered or improved upon in any way (with or without our permission), the website and all of its modifications, alterations and/or improvements will remain our property exclusively, and this Agreement will continue to apply to the website (as modified, altered or improved).
You are wholly responsible at all times for protecting the website from unauthorised access, use or damage. Risk of loss or damage to the website passes to you on the Commencement Date.
8. Indemnity and liability
8.1. You will at all times indemnify, and keep indemnified, us and our directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses on a full indemnity basis) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of your conduct or breach of this Agreement (or any conduct or breach of this Agreement by your officers, employees, contractors, associates, affiliates or agents).
8.2. We will provide the website to you under this Agreement with due care and skill, but we do not warrant that we will do so without fault or disruption. To the extent allowed by law, we exclude all liability to you or anyone else for loss or damage of any kind (however caused or arising) relating in any way to the website including, but not limited to, loss or damage you might suffer as a result of:
- (a) errors, mistakes or inaccuracies associated with the website or any product listings or product descriptions accessible through the website;
- (b) You acting, or failing to act, on any information contained in or referred to in the website and/or any linked software, applications, websites or websites;
- (c) personal injury or property damage of any nature resulting from your access to, and use of, the website;
- (d) any interruption or cessation of transmission to or from our website;
- (e) any bugs, viruses, Trojan horses, worms, logic bombs or other harmful code or communications which may be transmitted to or through our website by any third party; and/or
- (f) any loss of data or material that may occur while trying to upload, save or interface that data or material with the website;
- (g) the merchantability or fitness for any purpose of the website or any linked applications, websites or websites.
8.3. We do not warrant, endorse, guarantee or assume responsibility for any products or services (or claims or statements about those products or services) that You may view in connection with the website – particularly those made by third parties. We will not be a party to or in any way responsible for monitoring any transaction between you and third party providers of products and services.
8.4. We do not take any responsibility for direct or indirect damages or consequential losses suffered by use of or in connection with the website. Where any law implies a warranty into this Agreement which may not be lawfully excluded then to the extent allowed by law, our liability for breach of the warranty will at our option be limited to the resupply of our website and/or services, or the payment of the cost of resupply of our website and/or services to you.
9.1. We may terminate this Agreement, the Licence we grant to you under it and your access to the website immediately and without any further liability or obligations owing to you if you breach or threaten to breach any of your material obligations under this Agreement, or if we otherwise determine (in our absolute discretion) that it is necessary to do so.
9.2. Any termination of this Agreement (and the Licence we grant to you under it) does not affect any of our accrued rights or liabilities, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
9.3. The following clauses survive the termination of this Agreement: clauses 2.1, 4, 4.4, 6, 7, 8, 9, 10 and 11.
10. Implied Terms
10.1. Subject to clause 10.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
10.2. Where legislation implies any condition or warranty into this Agreement, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, our liability for any breach of any such condition or warranty will be limited, at our option, to one or more of the following:
- (a) if the breach relates to goods:
- (i) the replacement of the goods or the supply of equivalent goods;
- (ii) the repair of such goods;
- (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
- (iv) or the payment of the cost of having the goods repaired;
- and (b) if the breach relates to services:
- (i) the supplying of the services again;
- (ii) or the payment of the cost of having the services supplied again.
11.1. You and we acknowledge our continuing confidentiality obligations this Agreement.
11.2. A Party will not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
11.3. A Party will not be in breach of clause 11 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.
11.4. Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.
11.5. You must inform us immediately upon becoming aware of any breach of this clause 11 or of any unauthorised, unintended or undesirable disclosure of our Confidential Information, any must provide us with all reasonable assistance in remedying any such breach or disclosure.
11.6. Notwithstanding anything written elsewhere in this Agreement, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants.
12. Dispute Resolution
12.1. If a dispute arises under this Agreement (Dispute) a Party must comply with this clause 12.1 before starting any arbitration or court proceedings (except proceedings for urgent injunctive relief).
12.2. A Party claiming that a Dispute has arisen must give the other Party notice setting out details of the Dispute.
12.3. During the fourteen (14) days after a notice is given under clause 12.2 (or longer period if the Parties to the Dispute agree in writing), each Party to the Dispute must use reasonable efforts to resolve the Dispute. If the Parties cannot resolve the Dispute within that period, a Party may refer the Dispute to a binding arbitration to be conducted in Victoria in accordance with the Rules of the Institute of Arbitrators & Mediators Australia and will be conducted by one or more arbitrators appointed by the President (or nominee) of the Institute.
12.4. A Party must not start court proceedings in relation to a dispute until it has exhausted the mandatory procedures of this clause 11.6. Neither Party is prevented from applying to a court at any stage for urgent injunctive relief.
A notice, consent or other communication under this Agreement is only effective if it is:
- (a) in writing, signed by or on behalf of the person giving it;
- (b) addressed to the person to whom it is to be given; and
- (c) either:
- (i) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address;
- (ii) sent by email to that person’s email and the machine from which it is sent produces a delivery log which signifies that the email was send and relayed to its intended recipient successfully.
A Party’s mail address and email address are as that Party notifies the other Party in writing from time to time.
If any notice, consent, information, application or request is delivered, or read report in relation to it is received, on a day that is not a Business Day, or if on a Business Day, after 5pm on that day, it is to be treated as having been given or made at the beginning of the next Business Day.
You may not assign, whether in whole or part, your benefit or any of your rights or obligations under this Agreement, without our prior written consent, which we may grant or withhold in our absolute discretion.
15. Applicable law
This Agreement will be governed by and interpreted in accordance with the laws of New South Wales, Australia. You irrevocably submit to the non- exclusive jurisdiction of the courts of the State of Victoria, Australia. If any
part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of this Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
If we do not exercise or enforce any right or provision under this Agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this Agreement will only be effective if it is in writing and signed by us.
Should any part of this Agreement be or become invalid, illegal or unenforceable, it will be severed from this Agreement to the extent of its invalidity, illegality and/or unenforceability only and the remainder of this Agreement will remain in full force and effect.
18. Interdependence and Precedence of Documents
This Agreement is interdependent with any additional written terms and conditions attaching to any applications that operate on the website. In the event that there is any inconsistency between such terms and conditions and this Agreement, the terms of this Agreement will prevail over the other written terms and conditions to the extent of that inconsistency only.