…in plain English

 

1. By accepting these terms you are requesting a service (usually an ultrasound) from The Austin.

2. The Austin will provide that service (usually an ultrasound) with reasonable care and skill.

3. You agree to pay The Austin for that service (within 14 days).

4. The responsibility of veterinary examination, diagnose and/or treatment remains with you.

5. Equally, the liability of any loss sustained or incurred by you, remains with you.

6. The full legal terms below replace these ‘plain English’ terms.

 

 

…in full

Supply of Services by The Austin Vets Pty Ltd

 

These Terms and Conditions contain limitations on The Austin Vets’ liability.

The Client will be asked to click to accept the Terms and Conditions when requesting a service on The Austin’s website at www.theaustin.vet.

 

1Definitions

In these Terms and Conditions;

1.1“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation;

1.2“Authorised Users” means any employee, contractor, affiliate or other third party of the Client authorised to receive the Services on behalf of the Client;

1.3“Background Materials” means all work, materials, software and access to software, and information provided or made available by The Austin to the Client relating to the Services which existed prior to the Contract or which were created or arose independently of the Contract;

1.4“Client” means the person, firm or company purchasing the Services;

1.5“Client Materials” means the work, materials and information provided by the Client relating to the Services;

1.6“Confidential Information” means any information provided or otherwise made available by either Party (whether before, on or after the commencement of the Contract) to the other Party and which is marked as “confidential”, or is stated to be confidential, or is reasonably understood in the circumstances of disclosure to be confidential;

1.7“Consumer” has the meaning provided to it in section 3 of the Australian Consumer Law;

1.8“Contract” means this contract for services entered into between the Client and The Austin incorporating these Terms and Conditions, any SW entered under this Contract and any document pursuant to which Fees are agreed;

1.9“Consequential Loss” means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss opportunities;

1.10“Deliverables” means the work and materials to be created or developed by or on behalf of The Austin for the Client in the course of the Services as set out in the SW;

1.11“Expenses” means the expenses (if any) additionally payable to The Austin by the Client as set out in the SW;

1.12“Fees” means the fees payable to The Austin by the Client as agreed between the parties (as may be increased from time to time pursuant to clause 3.8 below);

1.13“Force Majeure Event” has the meaning given to it in clause 11.1;

1.14“Goods” means the goods (if any) to be provided to the Client by The Austin as set out in the SW, together with any other goods that The Austin provides or agrees to provide to the Client;

1.15“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time;

1.16“Insolvency Event” means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or the occurrence of any event that has substantially the same effect to any of the above events;

1.17“Key Dates” means the dates (if any) set out in the SW for the provision of some or all of the Services;

1.18“Loss” means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss;

1.19“Non PDH Goods or Services” means goods or services which, for the purposes of the Australian Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption;

1.20“Parties” means both The Austin and the Client (and “Party” means either one of them);

1.21“Payment Schedule” means the schedule for payment of the Fees as set out in the SW;

1.22“Registration” means online registration by the Client on The Austin’s website;

1.23“Services” means the services to be provided to the Client by The Austin as set out in the SW, together with any other services that The Austin provides or agrees to provide to the Client;

1.24“SW” means the scope of work set out in the Schedule describing the Services, the Deliverables, the Payment Schedule, the Expenses, the Key Dates and any special terms of business between the Client and The Austin;

1.25“Tax” or “Taxes” means any tax, levy, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, GST, consumption tax, value added tax or any other taxes, levies or charges), which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts;

1.26“The Austin” means The Austin Vets Pty Ltd (ACN 645 755 586); and

1.27“The Austin Information” means any and all data and other information collected, summarised and/or produced by or on behalf of The Austin and delivered to the Client by The Austin as part of the Services.

 

2Supply of Services

2.1These Terms and Conditions are the only terms and conditions upon which The Austin is prepared to deal with the Client in respect of the provision of the Services and they shall govern the Contract to the exclusion of all other terms and conditions (including without limitation any terms and conditions contained in any purchase order, specification or other document supplied by the Client).

2.2The Contract is formed at the earlier of (a) the date on which the Client accepts these terms and conditions (whether online or otherwise) (b) the date on which the Client requests or instructs The Austin to commence the Services.

2.3The Client will provide to The Austin written instructions and any relevant Client Materials each time it requires The Austin to provide it with Services and The Austin shall only be required to provide those Services upon written confirmation to the Client that it accepts the instructions.

2.4The client will send the Client Materials and instructions to The Austin and shall not instruct or provide materials to the consultants or employees of The Austin directly.

2.5The Austin shall provide the Services to the Client with reasonable care and skill upon the terms of the Contract.

2.6Unless otherwise stated in the SW, the amount of time which The Austin devotes to the Services and the manner in which it provides the Services shall be a matter for The Austin’s own professional judgment.

2.7Deliverables comprising reports are an interpretation of imaging findings only. The Client shall be responsible for application of the report in its practice and The Austin shall not be responsible for such application or any determination made on the basis of such reports in respect of the Client’s practice.

2.8The Austin shall use all reasonable endeavours to meet the Key Dates and any other dates for the provision of the Services which may be agreed between the Parties from time to time, but these are all estimates only and time shall not be of the essence for the provision of any of the Services.

2.9The Austin reserves the right to charge additionally, at its usual consultancy rates from time to time, for any additional services requested by the Client which The Austin reasonably believes do not fall within the scope of the Services and which The Austin agrees (at its absolute discretion) to provide. However, no such charges will be made or additional services provided without the prior agreement of the Client.

2.10The Austin shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and The Austin shall notify the Client in such event.

2.11Each Party shall nominate a person from time to time to be the main point of contact for the other in relation to the provision of the Services.

 

3Fees and Expenses

3.1In consideration for the Services to be provided by The Austin, the Client shall pay the Fees and any Expenses to The Austin.

3.2The Austin will ordinarily invoice the Client for the Fees and Expenses in accordance with the Payment Schedule. Notwithstanding the Payment Schedule, The Austin may invoice the Client:

3.2.1for the Fees at any time after the earlier of (a) the date on which the Client accepts these terms and conditions and (b) the date on which The Austin commences the provision of the Services to which the Fees relate; and

3.2.2for the Expenses at any time after they are incurred by The Austin.

3.3The Client shall pay The Austin’s invoices in full, in Australian dollars, within 14 days of the date of invoice, without any set-off or deduction. Time for payment of The Austin’s invoice(s) shall be of the essence of the Contract.

3.4If any payment of The Austin’s invoice(s) is not made by the due date, then without prejudice to any other right or remedy to which The Austin may be entitled, The Austin may:

3.4.1claim interest at the interest rate fixed from time to time pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic) which interest will accrue and be chargeable from the first day on which such amounts become overdue until The Austin receives payment of all such amounts (including all interest) by way of cleared funds; and/or

3.4.2suspend the Services until payment is made in full (in which case the Client shall be liable for any resultant costs and expenses incurred by The Austin).

3.5Notwithstanding any other provision of this Contract, all payments due to The Austin under this Contract shall become due immediately upon its termination.

3.6The Fees, Expenses and any other sums payable to The Austin under this Contract are exclusive of GST and any other applicable Taxes, which the Client shall additionally pay to The Austin at the applicable rate from time to time.

3.7If GST is payable on any supply made by The Austin under this Contract, the Client must pay to The Austin, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Client is required by this Contract to reimburse or indemnify The Austin for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that The Austin will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by The Austin in respect of the reimbursement or payment. This clause does not merge on completion or termination of this Contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.

3.8The Austin may from time to time increase the Fees on 30 days’ written notice to the Client. Details of the increase shall either be set out in the written notice and/or confidentially published on the The Austin website, details of such confidential location being set out in the written notice.

 

4Intellectual Property Rights

4.1All intellectual property rights and other rights in the Background Materials shall (as between The Austin and the Client) remain the property of The Austin.

4.2All intellectual property rights and other rights in the Deliverables and the The Austin Information shall (as between The Austin and the Client) be owned by, and is the property of, The Austin on and from its creation.

4.3The Austin grants to the Client a limited, non-exclusive, royalty free, revocable licence to use the Deliverables only to the extent strictly necessary for the operation of the Client’s veterinary surgery, practice, hospital or clinic (including showing the Deliverables to the customers of the Client) but, for the avoidance of doubt, such right shall not entitle the Client to reproduce or publish the Deliverables without the prior written consent of The Austin.

4.4Any suggested modifications or improvements to the Services submitted to The Austin by the Client or any Authorised Users of the Client shall be the exclusive property of The Austin to exploit or to not exploit as The Austin solely deems appropriate.

 

5Obligations of the Client

5.1Subject to clause 5.2, it is a condition of this Contract that the Client hold all necessary registrations, licences and accreditations:

5.1.1to examine, diagnose and/or treats animals; and

5.1.2to conduct the business of a veterinary surgery, practice, hospital or clinic,

in every jurisdiction (including each State and Territory) in which it examines, diagnoses and/or treats animals (“Licensed Surgery”) and it is a further condition of this Contract that the Client at all times complies with all relevant laws and regulations in such jurisdictions pertaining to the examination, diagnoses and treatment of animals. The Client undertakes and warrants to The Austin that it shall maintain such licensing, registration and accreditation and observe all such laws and regulations for the duration of the Contract.

5.2Where the Client is not a Licensed Surgery, The Austin may agree in the writing to waive the condition at clause 5.1 above provided that it shall be a condition of this Contract that the Client maintains a veterinary surgeon or practitioner as an employee or consultant of the Client who is fully licensed, registered or accredited to examine, diagnose and/or treat animals in every jurisdiction in which he or she does examine, diagnose and/or treat animals and who is nominated by the Client as the sole recipient to receive and analyse reports from The Austin (“Licensed Surgeon”). It is a further condition of this Contract that such Licensed Surgeon shall at all times comply with all relevant laws and regulations in such jurisdictions pertaining to the examination, diagnoses and treatment of animals. The Client undertakes and warrants to The Austin that it shall maintain the employment or consultancy of such Licensed Surgeon and warrants that such Licensed Surgeon shall observe all such laws and regulations for the duration of the Contract.

5.3The Client shall at its own expense provide The Austin with all the cooperation and with all the Client Materials which The Austin may reasonably require to provide the Services. The Client is solely responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access or use the Services and all related charges for such equipment.

5.4The Client undertakes to The Austin that the Client Materials it provides to The Austin shall be of sufficient detail and of sufficient quality to allow The Austin to perform its obligations under this Contract.

5.5The Client shall maintain primary copies of all Client Materials and the Client confirms that The Austin shall not be responsible for maintaining, storing or returning Client Materials.

5.6The Client warrants that the Client Materials shall be accurate in all material respects and that their use by The Austin for the purposes of providing the Services shall not infringe the intellectual property or any other rights of any third party. The Client shall indemnify and keep indemnified The Austin against any Loss which arises out of or in connection with any breach of either or both of these warranties.

5.7If The Austin’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors, consultants or employees, The Austin shall not be liable for any Loss sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

5.8The Client shall not, at any time from the commencement of this Contract until six (6) months after the completion of the Services, solicit or seek to entice away from The Austin any person who is, or has been, engaged as an employee, consultant or sub-contractor by The Austin in the provision of the Services.

 

6Storage and Publicity

6.1The Austin shall be entitled to name the Client in its published lists of clients, and to use anonymised copies and images of the Deliverables in The Austin’s own publicity materials as examples of The Austin’s work for the Client and the Client consents to the collection, use and disclosure of its name by The Austin for the purposes stated in this clause.

6.2The Austin shall be entitled to maintain and store Client Materials and shall have the right to publish anonymised Client Materials for publicity, lecturing, training or other purposes and the Client provides The Austin with non-exclusive, irrevocable, transferable and royalty-free licence to use the Client Materials for any purpose in connection with this Contract (including this clause 6.2).

 

7Confidentiality

7.1Each Party agrees to use the other Party’s Confidential Information solely for the purposes of the Contract and not to disclose the same whether directly or indirectly, to any third party (other than, in the case of The Austin, to its sub-contractors who are under equivalent obligations of confidentiality as are contained herein) without the other Party’s prior written consent.

7.2The restriction in clause 7.1 shall not apply to Confidential Information which (a) was public knowledge or already lawfully known to the receiving Party at the time of disclosure to it, or (b) subsequently becomes public knowledge other than by a breach of a duty owed to the first disclosing Party, or (c) subsequently comes lawfully into the possession of the receiving Party from a third party, or (d) has to be disclosed by law.

 

8Liability

8.1This clause 8 sets out the entire financial liability of The Austin (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors) to the Client under or in connection with the Contract, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.

8.2Nothing in this Contract should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law or the Client’s rights to make a claim in respect of any consumer guarantees or other provision of the Australian Consumer Law.

8.3If the Client is not a Consumer for the purposes of this Contract then, to the extent permitted by law, The Austin excludes all liability for any Loss incurred by the Client as a result of, or in connection with, this Contract. This clause applies even if The Austin knew or ought to have known that it was possible or foreseeable that the Client would incur such Loss.

8.4Notwithstanding clause 8.3, if the Client is a Consumer for the purposes of this Contract and the Goods or Services supplied under this Contract are Non PDH Goods or Services, The Austin’s liability to the Client is limited at The Austin’s option to:

8.4.1in the case of the Goods:

(i)the replacement of the Goods or the supply of equivalent goods;

(ii)the repair of the Goods;

(iii)the payment of the cost of replacing the Goods or of acquiring equivalent goods; or

(iv)the payment of the cost of having the Goods repaired; and

8.4.2in the case of the Services:

(i)the supplying of the Services again; or

(ii)the payment of the cost of having the Services supplied again.

8.5Without limiting any other provision in this Contract, The Austin is not liable for any Loss the Client suffers as a result of:

8.5.1improper use or consumption of the Goods; and

8.5.2misuse or neglect of the Goods or any other use or consumption of the Goods which is outside of the ordinary commercial application of the Goods or is otherwise inconsistent with The Austin’s instructions in relation to the use or consumption of the Goods.

8.6Subject to clause 8.1 and the rest of this clause 8 the aggregate liability of The Austin to the Client arising out of or in connection with this Contract will in no event exceed an amount equal to the amount of the Fees paid by the Client under this Contract.

 

9The Client’s rights to cancel and applicable refund

9.1Before The Austin begins to provide any of the Services, the Client has the following rights to cancel the SW in respect of those Services, including where it chooses to cancel because The Austin is affected by a Force Majeure Event or if The Austin change these Terms and Conditions under clause 12.5 to the Client’s material disadvantage:

9.1.1The Client may cancel the SW in respect of the relevant Services at any time before The Austin begins to provide those Services by contacting The Austin. The Austin will confirm the cancellation in writing.

9.1.2If the Client cancels part of an SW under clause 9.1.1 and has made any payment in advance for Services that have not been provided, The Austin will refund these amounts to the Client.

9.1.3If the Client wishes to cancel part of an SW for Services under clause 9.1.1 and The Austin has already started work on preparing for the provision of the relevant Services before the Client notifies The Austin that it wishes to cancel the relevant part of the SW, the Client must pay The Austin any costs The Austin reasonably incurred in preparing to provide the Services, and this charge will be deducted from any refund that is due to the Client or, if no refund is due, invoiced to the Client which will be due and payable in accordance with clause 3.3. The Austin will inform the Client what these costs are when the Client contacts The Austin. However, where the Client cancels part of a SW because of The Austin’s failure to comply with these Terms and Conditions (except where The Austin have been affected by a Force Majeure Event), the Client does not have to make any payment to The Austin.

9.2Once The Austin has begun to provide the Services, the Client may cancel the Contract with immediate effect by giving The Austin written notice if:

9.2.1the events specified in clause 10.3 apply to The Austin;

9.2.2these Terms and Conditions are varied pursuant to clause 12.5 to the Client’s material disadvantage; or

9.2.3The Austin is affected by a Force Majeure Event which is subsisting for more than 20 consecutive days.

 

10Term and Termination

10.1Subject to earlier termination in accordance with clause 9 or this clause 10, this Contract shall remain in force until the completion of the Services.

10.2The Austin may, by notice in writing to the Client, terminate this Contract without incurring liability to the Client for any reason on 45 days’ written notice.

10.3Either Party may, by notice in writing to the other Party, terminate this Contract without incurring liability to the other Party immediately if the other Party:

10.3.1is in material breach of any term of the Contract and fails to remedy such breach (if capable of remedy) within twenty eight (28) days of having received written notice of such breach from the complaining Party; or

10.3.2is subject to an Insolvency Event.

Termination (however caused) or expiry of this Contract shall be without prejudice to any rights, obligations or liabilities accrued at the date of termination or expiry. The provisions of this Contract which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination or expiry, including without limitation all the provisions of clauses 6, 7, 8, and 12.

 

11Force Majeure

11.1The Austin shall have no liability to the Client under or in connection with the Contract for any delay or failure in performance, in whole or in part, if such delay or non-performance is due to any cause beyond The Austin’s reasonable control (“Force Majeure Event”).

 

12General

12.1All notices under the Contract shall be in writing and shall be delivered by hand or sent by first class post (or by air mail if to/from outside Australia) or by fax (confirmed by first class or air mail post as applicable) or by email (which will deemed to be received one hour after the email is sent unless the sending Party knows that the email has failed to send) to the other Party at its address provided at Registration or such other address as may at the relevant time have been notified however any notice of termination or breach of this Contract must be hand delivered or sent by post.

12.2The Client may not assign or transfer the Contract or any of its rights under this Contract without The Austin’s prior written consent. The Austin may assign or transfer the Contract to any subsidiary of The Austin or any company within the group of The Austin and may carry out some or all of its obligations under the Contract through any third party sub-contractors.

12.3This Contract constitutes the entire agreement between the Parties with regard to its subject matter and supersedes and replaces any prior arrangement, understanding or statement between them relating to it. The Client acknowledges that, in entering the Contract, it does not rely on any statement, representation, assurance or warranty of any person (whether a Party or not) other than as expressly set out in the Contract. However, nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.

12.4Subject to clause 12.5, no variation to these Terms and Conditions shall be valid unless agreed in writing.

12.5The Austin reserves the right to vary these Terms and Conditions from time to time. Whenever these Terms and Conditions are varied by The Austin, The Austin shall notify the Client via the Company’s website of any proposed amendments to these Terms and Conditions at least 28 days in advance of such amended Terms and Conditions (“Amended T&Cs”) being published on the Company’s websites (“Publication”). The Amended T&Cs shall constitute the Terms and Conditions from the date of Publication provided that the Amended T&Cs shall not apply to any Services instructed on or before the date of Publication.

12.6Nothing in this Contract shall constitute or be deemed to constitute a partnership or relationship of agency between the Parties and neither Party shall have any authority to bind the other in any way.

12.7No failure or delay by The Austin to exercise any right under the Contract shall be deemed to be a waiver of that right, nor preclude the exercise or enforcement of it at any later time.

12.8If any provision of the Contract shall be held to be illegal or unenforceable, the enforceability of the remainder of the Contract shall not be affected.

12.9No provision of this Contract will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Contract or the inclusion of the provision in the Contract.

12.10The Contract (including without limitation non-contractual disputes or claims relating to the Contract and its subject matter or formation) shall be governed by and construed in accordance with laws of South Australia, Australia and by entering into the Contract each Party irrevocably submits to the exclusive jurisdiction of the courts of South Australia, Australia.

 

Schedule

Scope of work (“SW”)

PROJECT DESCRIPTION / SERVICES

(i) Telemedicine reporting services; and/or

(ii) Consultancy and advice services in digital imaging and telemedicine.

DELIVERABLES

(i) Ultrasound, Radiographic, CT and MRI reports; and/or

(ii) Telemedicine opinions; and/or

(iii) Advice on digital imaging and telemedicine

KEY DATES

(i) Ultrasound, Radiographic, CT and MRI reports will normally be provided within 24 hours of receipt of the full image data set (DICOM format), patient history and signalment;

(ii) The Austin may agree to provide urgent radiographic, CT and MRI reports on request.

PAYMENT SCHEDULE

The Austin ordinarily invoices on a weekly basis; however The Austin reserves the right to invoice at other times as it reasonably sees fit.

EXPENSES

The Austin shall be entitled to charge the Client for any expense reasonably incurred by it to effect the supply of Services or in the enquiry and collection of any amounts due to it under the Contract.

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