1.1 Xcursion Pty Ltd ABN 42 607 149 299 provides the Xcursion web & mobile system for:
(a) Creating and managing digital health profiles (DHP) for children and adults;
(b) Scheduling medical and health related tasks (Tasks);
(c) Recording and responding to health related incidents (Incidents);
(d) Electronically communicating health related information, consents and permissions about an individual between parents/guardians/care givers (Care Givers) and Care Providers.
A key definitions
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
(a) Action Plan means a programmed schedule of prompts to be taken in response to a particular type of Incident.
(b) Agreement means these Terms of Service.
(c) Adult means a person that has reached the legal age of majority (generally over the age of 18).
(d) Care Provider means (without limitation) carers, kindergartens, schools, clubs, other groups and natural persons with a duty of care to the Individual that:
i Are users of Xcursion; and/or
ii Are authorised to access an Individual’s DHP.
(e) Child means a legal minor (generally under the age of 18).
(f) Company means Xcursion Pty Ltd ABN 42 607 149 299.
(g) DHP (Digital Health Profile) means the record of an Individual’s Health Information in Xcursion.
(h) Fee means any fee paid by a User for access to or use of Xcursion.
(i) Guardian means a user of Xcursion that is:
i The parent or legal guardian of a Child; or
ii The carer or legal guardian of an Adult.
(j) Health Information has the same meaning as in the Privacy Act (but generally refers to information about the health or a disability of an Individual at any time).
(k) Individual means a Child or Adult with a DHP about them in Xcursion.
(l) Incident means any health related incident or episode relative to an Individual recorded in Xcursion.
(m) Organisation means a Care Provider that is (without limitation) a school, childcare centre, club, institution, agency or other organised or incorporated body.
(o) Staff Member means any employee, volunteer or other personnel of an Organisation, including administrators teachers, nurses, coaches, instructors etc.
(p) Task means a scheduled task to be undertaken by an Individual or Care Provider at a particular time in relation to the Individual, including (without limitation) administering medication or performing a preventative exercise.
(q) User means any Guardian, Care Provider, Individual or Staff Member that uses Xcursion.
(r) Xcursion means the Xcursion:
i Web application accessible from http://www.xcursion.com.au; and/or
ii Mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
Guardians and Individuals (Item D)
Care Providers and Organisations (Item E)
Staff Members (Item F)
B.2 In addition to any other express or implied consents, by using Xcursion the User accepts and agrees to the terms of:
(a) This Agreement; and
C Using Xcursion
(a) Depending on their account type a User may:
i Enter information regarding a Task into Xcursion;
ii Schedule the time and or frequency at which the Task is to be actioned; and
iii Receive notifications relative to a Task.
(b) Each User that creates or edits a Task is responsible for:
i The accuracy of the information related to the Task;
ii The appropriateness of any instructions related to the Task relative to the Individual.
(c) Each Care Provider that receives a notification relative to a Task is responsible for:
i Effectively performing any action related to a Task; and
ii Ensuring that the relevant Individual receives the necessary care in relation to the task.
(d) The Company accepts no responsibility in relation to a Task. Any dispute in relation to a task is to be dealt with strictly between the users responsible for creating and performing a Task.
(a) A Care Provider may:
i Trigger an Incident using Xcursion;
ii Follow prompts in accordance with an Action Plan;
iii Record details of the Incident.
(b) The details of an incident recorded by Xcursion may include:
i Video or audio recorded on the mobile device that Xcursion is installed on;
ii Time the Incident occurred;
iii GPS Location;
iv Call logs;
v SMS or emails;
vi Steps followed in accordance with an Action Plan;
vii Written notes entered by the Care Provider; and
viii Such other information as Xcursion may support the capture of from time-to-time.
(c) The Care Provider shall be responsible for appropriately recording and responding to an Incident in accordance with this Agreement.
(d) Any dispute in relation to an Incident must be dealt with between the relevant Care Provider and each User affected by the Incident. Under no circumstance will the Company be responsible in relation to an Incident.
C.3 Action Plans.
(a) Xcursion may include Action Plans that are:
i Created by a User; or
ii Are included in Xcursion by default.
(b) Default Action Plans are included by the Company, and follow generally accepted procedures for responding to an Incident of a particular type (e.g. an asthma attack, anaphylactic reaction, ingesting poison etc.), but are not intended in any way as:
i Medical advice; or
ii A substitute for medical care.
(c) Each User that follows an Action Plan agrees and acknowledges that:
i They do so at their own risk;
ii They are responsible for following the directions of an Action Plan.
iii The Company is not responsible in relation to the User’s use of an Action Plan.
(d) Each user that creates an Action Plan is responsible for the accuracy and fitness-for-purpose of each Action Plan that they create.
D.1 Xcursion may enable Guardians and Individuals to:
(a) Input Health Information about an Individual and create a DHP;
(b) Authorise Care Providers:
i To access the DHP of an Individual;
ii Contact the Individual and/or Guardian;
iii Create, action and monitor Tasks;
iv Respond to and record Incidents;
(c) Consent to activities and actions for the Individual with a Care Provider;
(d) View up-to date information about the Individual recorded by a Care Provider with regards to:
i The Individual’s DHP.
ii The Individual’s location via GPS;
iii Tasks; and
(e) Communicate with a Care Provider and, if relevant, its Staff Members.
D.2 The Guardian agrees and accepts that:
(a) The Guardian is responsible for ensuring that the information that they enter into the DHP is up-to-date and accurate;
(b) The Xcursion may share the DHP and other personal information of the Individual with any Care Provider authorised by the Guardian and/or Individual;
(c) Any information shared by Xcursion with a Care Provider authorised by the Guardian and/or Individual may be retained by the Care Provider for the purpose of updating their administrative records;
(d) To correspond with the Guardian and/or Individual, the Care Provider must use the Guardian’s and/or Individual’s contact information;
(e) Some communications may relate to an emergency and cannot be opted-out;
(f) Xcursion may send the Guardian and/or Individual emails, text messages, push notifications and other alerts on behalf of Care Providers and their Staff Members;
(g) Any consent made by a Guardian and/or Individual through Xcursion is valid and binding unless and until revoked by the Guardian and/or Individual, and a Care Provider may rely on a consent made through Xcursion without any need to further verify the veracity of that consent;
(h) All information about an Individual is used and controlled by the Guardian and/or Individual, not Xcursion;
(i) All information input to Xcursion about an Individual is provided with that Individual’s consent;
(j) The Care Provider authorised by the Guardian and/or Individual to receive the DHP and other personal information may have its own policy governing access to this information and the use of Xcursion by its Staff Members;
(k) The Company does not provide medical or health advice.
D.3 Where an Individual is a Child, Xcursion may:
(a) Restrict the Child’s use of Xcursion in any way it sees appropriate;
(b) Require the Child’s Guardian to confirm any:
i Changes to information about the Child in Xcursion; and/or
ii Authorisations or consent provided through Xcursion about the Child;
Before making those changes or permitting those authorisations or consents to be transmitted.
E.1 Depending on the account type, Xcursion may enable a Care Provider or Organisation to:
(a) Upload and input Child information;
(b) Upload and input Guardian information (including contact information);
(c) Organise Child information by class/team/group/trip etc;
(d) Authorise Staff Members to access and use Xcursion;
(e) View and manage information about the Individual with regards to:
i The Individual’s DHP;
ii The Individual’s location via GPS;
(f) Record an Incident and log actions taken including:
i Video, Audio and written details of the Incident;
ii Location of the Incident;
iii Incoming and outgoing calls and messages;
iv Actions taken in response to the Incident;
v Following an Action Plan.
(g) Edit, view, log and receive notifications in relation to Tasks;
(h) Create and follow Action Plans.
(i) Communicate to:
i Contact emergency services or medical professionals in relation to an Incident;
ii Request consents from Guardians to undertake Tasks, activities or actions with or for their Child;
iii Request consents from Individuals to undertake activities or actions with or for them;
iv Request information from Guardians; and
v Communicate with Guardians;
(j) Manage and reconcile consents and communications with and from Guardians;
(k) View a record of all of the activities within Xcursion by the Care Provider, its Staff Members and Guardians;
E.2 The Care Provider agrees and warrants that:
(a) It shall not store or record any Health Information that it can access through Xcursion unless it is fully compliant with the Privacy Act;
(b) It is responsible for correctly recording each Task and Incident in relation to an Individual;
(c) It is responsible for each Action Plan that it creates, and for following each Action Plan.
(d) The Company is not responsible for any Action Plan made available via Xcursion.
(e) While some Action Plans are made available in accordance with recommended medical procedure, the Company does not accept responsibility for the accuracy of those Action Plans, and the Care Provider remains responsible directly to the relevant Individual or Guardian.
(f) The Company does not provide medical or health advice.
(g) It is responsible for ensuring that the Care Provider has adequate first aid training, and necessary skills to respond to an Incident.
(h) It shall not disclose any information, other than to its authorised Staff Members, about an Individual to any other person or party other than as authorised by the Individual or the Guardian;
(i) It shall ensure all personal information it has access to through its use of Xcursion is kept and used in accordance with the Privacy Act;
(j) It shall only use Xcursion for its intended purpose as set out in this Agreement;
(k) It shall comply with all anti-SPAM legislation in its jurisdiction;
(l) It is solely responsible for the use of the Child information uploaded or input into Xcursion by any Staff Member;
(m) It is responsible for backing up any records stored in Xcursion (including each DHP), by downloading and/or printing copies on a regular basis.
(n) It grants Xcursion a royalty free licence to use any logos in any form, media or technology for the purpose of promoting or marketing Xcursion; and
(o) It’s licence to use Xcursion, as provided for in the General Conditions, is subject to the payment of all necessary Fees.
E.3 Any person who registers an Organisation in Xcursion warrants he or she is an authorised representative of that Organisation, with the requisite authority to bind the Organisation to this Agreement.
F.1 Staff Members agree to use Xcursion in accordance with the rights and obligations of the Organisation that authorises their access.
G.1 Xcursion can enable an Individual to access information:
(a) Uploaded by the Individual’s Guardian; or
(b) Uploaded by the Individual.
G.2 If an Individual is a Child he or she must obtain consent from their Guardian before using Xcursion.
H.1 Fees apply as advertised to the use of Xcursion or as otherwise agreed with the Company, and the terms of those Fees are set out in the General Conditions.
H.2 Where a Fee is paid for a particular term of access to Xcursion, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Xcursion within that term.
I Electronic transactions
I.1 The User agrees that when it provides any consent, authority or agreement through Xcursion it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
I.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through Xcursion as an electronic transaction shall be sent directly from its email address.
J.1 The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
J.2 The Company does not guarantee the validity of any electronic transaction.
K Term & limitations
The User’s license to access Xcursion shall be ongoing until terminated by The Company in accordance with this Agreement.
K.2 Limitations on Use.
The Company may limit or restrict access to Xcursion from time-to-time as it sees fit, including (but not limited to):
(a) Entities. The Company may restrict access only to reputable and/or registered Care Providers or Organisations; and
(b) Location. The Company may restrict access to Xcursion to certain jurisdictions where it is able to offer Xcursion.
(a) The User must register an account in Xcursion to use Xcursion.
(b) The Company may set any registration requirements in its absolute discretion.
M Confidential information
M.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
(a) Health Information;
(b) Personal information;
(c) Child information; and
(d) Business, employees and contractors;
N.1 Either party may end this Agreement at any time by 30 days’ written notice to the other party.
N.2 Where The Company terminates this Agreement without cause, it shall provide a pro-rata refund for any fees paid in advance.
O Disclaimer – third party services
O.1 The User acknowledges that Xcursion is dependent on third-party services, including but not limited to banks, credit card providers, BPAY and telecommunications services.
O.2 The User agrees that the Company shall not be responsible or liable in any way for interruptions to the availability of Xcursion due to third-party services.
P.1 Governing Law. New South Wales, Australia
P.2 Reference City. Sydney.
1.1 The User wishes to access Xcursion provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of Xcursion to the User by the Company.
2.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item P of the Important Terms.
(d) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party's policies and procedures; and
vi All information contained in this document,
But excludes information that the other party can establish:
vii Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(e) Corporations Act means the Corporations Act 2001 (Cth).
(f) Fees mean the fees and charges as set out in the Important Terms.
(g) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(h) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(i) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(k) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(l) Health Information has the meaning given to it in the Privacy Act.
(m) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(n) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(o) Pricing means the pricing as notified to the User in writing by the Company from time-to-time.
(p) Privacy Act means the Privacy Act 1989 (Cth).
(q) Solution means the solution described in the Important Terms.
(r) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(s) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(t) User Content means data that is uploaded or input into Xcursion by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this Agreement.
(c) A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3 Application of this agreement
3.1 This Agreement applies to use of and access to Xcursion.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Xcursion.
3.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Xcursion at the User’s next login after the User receives written notice of the update(s).
4 The Xcursion product
4.1 Xcursion is the product described in the Important Terms.
4.2 Xcursion is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that Xcursion is:
(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
(b) Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Xcursion is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Xcursion.
4.5 The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Xcursion to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use Xcursion for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however, it is under no obligation to do so.
6.1 The User agrees that it shall only use Xcursion for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
7 Authorised users
7.1 The User shall authorise users to access Xcursion in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to Xcursion.
7.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Xcursion account.
8 Customer data
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 8.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
8.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Xcursion).
9.3 The Company makes no warranty as to the suitability of Xcursion in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether Xcursion is appropriate for the Organisation’s circumstances.
10.1 The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
10.2 The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
10.3 The Company shall maintain all Fees for the term of the licence paid for by the Organisation.
10.4 The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organisation’s licence.
10.5 The Company may revoke or suspend the User’s license to access Xcursion for unpaid Fees without liability.
10.6 Where the Company:
(a) Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
(b) Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.
10.7 All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
10.8 GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
10.9 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11 INVOICING & PAYMENTS
11.1 The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
11.2 The terms of payment set out in the Fees shall apply.
11.3 Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
11.5 The User authorises the Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
12.1 Security. The Company takes the security of Xcursion and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
12.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
12.3 Storage. The Company may limit the amount of data that the User stores in Xcursion, and shall advise the User of such. Data that is stored with Xcursion shall be stored according to accepted industry standards.
12.4 Backup. The Company shall perform backups of Xcursion in as reasonable a manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
13.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to Xcursion to the best of its abilities, however:
(a) Access to Xcursion may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to Xcursion.
13.2 Users may prepare for unscheduled unavailability of Xcursion by:
(a) Keeping their Xcursion mobile app up to date, which will store local copies of the data; and
(b) Printing hard copies of reports.
14 Intellectual property
14.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
14.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Xcursion.
14.3 The Xcursion Application. The User agrees and accepts that Xcursion is the Intellectual Property of the Company and the User further warrants that by using Xcursion the User will not:
(a) Copy Xcursion or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Xcursion or any documentation associated with it.
14.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Xcursion.
15.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2 Each party acknowledges and agrees that:
(a) The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b) It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c) It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d) All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e) Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a) Any actual, suspected, likely or threatened breach by it of clause 15.1;
(b) Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c) Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(a) Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(b) Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
16 Liability & Indemnity
16.1 The User agrees that it uses Xcursion at its own risk.
16.2 The User acknowledges that Xcursion does not provide medical advice, nor does it hold itself out to provide medical advice.
16.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
16.4 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
16.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Xcursion, including any breach by the User of these Terms.
16.6 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, illness, death, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Xcursion or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, personal injury, illness or death, whether in tort, contract or otherwise.
16.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
17.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
(a) The nature of the breach;
(b) The provisions of the Agreement that are alleged to have been breached;
(c) A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
(d) The action required to remedy the breach.
17.2 Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a) The steps taken to remedy the breach; or
(b) Why the party believes it is not in breach as put forward in the Breach Notice,
(c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
17.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
18.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a) Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b) Is insolvent within the meaning of section 95A of the Corporations Act;
(c) Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
i The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
ii The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(d) Has an administrator appointed in respect of it;
(e) Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
(f) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(g) Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(h) Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
18.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.
19.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
19.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
20 Force majeure
20.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
20.2 Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5 The term of this Agreement will not be extended by the period of Force Majeure.
21 Electronic communication, amendment and assignment
21.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
21.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.5 Notices must be sent to the parties’ most recent known contact details.
21.6 The User may not assign or otherwise create an interest in this Agreement.
21.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
22.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
22.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
22.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7 Governing Law. This Agreement is governed by the laws of the state set out in item P of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
22.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS