Terms and Conditions
WESTERN VICTORIA PHN MICROSITE ‘
USER TERMS AND CONDITIONS
PLEASE
READ THESE USER TERMS AND CONDITIONS PRIOR TO USING THE MICROSITE AND/OR ANY WVPHN IP. THESE USER TERMS
AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN A USER AND WVPHN REGARDING
THE USER’S ACCESS TO AND USAGE OF THE MICROSITE AND BY ACCESSING OR USING THE MICROSITE,
THE USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.
1.
PURPOSE &
APPLICATION
1.1.
WVPHN makes available training resources as part of the Aged Care
Telehealth Training Program (Program) via an online microsite for residential
aged care homes (which may include visiting clinicians) or clinicians providing
remote-end consultations.
1.2.
WVPHN grants the User access to the Microsite in accordance with these
Terms and Conditions.
1.3.
Each User’s right to access and use the Microsite is subject to and conditional
upon the User agreeing to be bound by these Terms and Conditions.
1.4.
The User acknowledges and agrees that the User’s rights to use and access
the Microsite is subject to and conditional upon the User having the right to
access the Microsite in accordance with the terms of these Terms and Conditions.
If at any time the User’s rights are suspended or terminated the User’s right
to access or use the Microsite shall also be suspended or terminated.
1.5.
The User and WVPHN acknowledge that the purpose of the Microsite is to
provide training and as such WVPHN will permit Users providing services in or
to aged care facilities to provide the Training Modules or access to the
Microsite to all Learners.
2.
ACCESS TO MICROSITE
2.1.
Access
The User
acknowledges and agrees that the right to access and use of the Microsite and any
Documentation is only for the purpose of accessing training as part of the Program.
2.2.
Accounts
The User must:
2.2.1.
keep its
username and password secure and confidential and does not share its username and
password with third parties including other users;
2.2.2.
immediately
notify WVPHN if there is a breach of security or any unauthorised access to the
Account;
2.2.3.
immediately
verify the identity of the Account information upon request by WVPHN;
2.2.4.
keep all
information provided in the registration process for the Account current
including payment details, email addresses, usernames and passwords; and
2.2.5.
not use
false or misleading information when registering the Account or using the Microsite.
2.3.
Access Obligations
If the User has
been authorised to provide the Training Modules to Learners, the following will
apply:
2.3.1.
the User
must always provide access to all Learners free of charge;
2.3.2.
the User
warrants that all Learners have agreed to these Terms and Conditions and any
action or omission by any Learner will not preclude the User from any liability
under these Terms and Conditions; and
2.3.3.
the User
must provide utilisation and completion data to WVPHN related to the Training
Modules and use of the Microsite on a regular basis as directed by WVPHN but
not less frequently than quarterly. This data will include, but is not limited
to, the number of (de-identified) users, demographic details of users, progress
reports and completion rates.
2.3.4.
If the User
is providing training to GPs, the User must provide WVPHN with the learner’s
name, continuing professional development identification number, date of
completion and the completed evaluation form for each completed learning set
within three months.
2.4.
Protection from Damage or Unauthorised Use
The User must ensure
that reasonable steps are taken to protect the WVPHN IP at all times from
misuse, damage or destruction or any form of unauthorised use or access.
2.5.
Suspend Access to the Microsite
WVPHN may immediately and temporarily suspend access to the Microsite,
and use of the Microsite, Documentation and other WVPHN IP if WVPHN forms the
reasonable view that the User is in breach of these Terms and Conditions.
3.
USER OBLIGATIONS
3.1.
User Obligations
The User must:
3.1.1.
act in
compliance with all laws, regulations, and codes of conduct and any
instructions, directions, requirements and requests made by any statutory,
governmental, industry or regulatory body and act in accordance with the
highest standards of ethics and business practice;
3.1.2.
provide WVPHN
with all assistance necessary to resolve any issues, including providing any
documented examples of any Defect which may assist WVPHN to resolve the Defect;
3.1.3.
not engage
third parties to provide any services in relation to the Microsite without
prior written consent of WVPHN;
3.1.4.
only use
the Microsite in accordance with these Terms and Conditions and any Documentation;
3.1.5.
not,
subject to these Terms and Conditions, use, adapt, modify, alter, copy,
reproduce, reverse engineer, disassemble, merge, decode in any way or decompile
in whole or any part of the Microsite, training materials or the WVPHN IP, by
any means;
3.1.6.
not do
anything which attempts to disrupt the integrity or performance of the Microsite
including send or store any viruses, worms, time bombs or any other harmful or
malicious code, files, scripts, agents or programs to the Microsite;
3.1.7.
not
threaten, institute, invalidate, challenge or put in dispute the ownership, use
or title of the Microsite, training materials or the WVPHN IP anywhere in the world;
3.1.8.
not
infringe the WVPHN IP;
3.1.9.
not at any
time, act in a manner which prejudices the goodwill or reputation of WVPHN or
any Intellectual Property Rights of WVPHN;
3.1.10.
not remove
any copyright or proprietary notice from any Training Module without the
express written agreement of WVPHN;
3.1.11.
not
register or use a business, company or association (whether incorporated or
not) name, domain name, social media account or trade mark
which is identical, substantially identical with or deceptively similar to,
capable of being confused with or contains WVPHN trade marks
anywhere in the world without the express written agreement of WVPHN;
3.1.12.
not pass
off the Training Modules to any one as created by someone other than WVPHN;
3.1.13.
must comply
with any directions of WVPHN or its authorised representative in relation to
the Microsite;
3.1.14.
ensure the Microsite
is not used for re-sale or commercial or other distribution to third parties;
3.1.15.
ensure that
it has the required permission to use all Training Modules uploaded to the Microsite;
and
3.1.16.
not assist,
support or encourage any person to do any of the things contained in this
clause 3.
4.
INTELLECTUAL PROPERTY
4.1.
Ownership and User Warranties
The User acknowledges, agrees and warrants that:
4.1.1.
it does not
obtain any ownership rights in the Microsite or the WVPHN IP; and
4.1.2.
it does not
obtain any ownership rights in any third party software integrated in the Microsite.
4.2.
Improvements to the Microsite
4.2.1.
Any
Improvement to the Microsite, regardless of the author or developer, shall be
the property of WVPHN and WVPHN shall have the sole exclusive right to seek,
obtain and/or maintain Intellectual Property Rights protection in respect of
such Improvements at its complete discretion notwithstanding that the User may
have contributed to the development of those Improvements including any
suggestions, enhancement requests, recommendations or feedback provided by the User.
4.2.2.
The User
assigns to WVPHN all of its right, title and interest in and to any
Improvements made to the Microsite and/or the WVPHN IP, any Intellectual
Property Rights created or developed as a result of the User’s use of the Microsite
or WVPHN IP and the User agrees and undertakes to sign any documents and
provide every assistance to transfer the same.
4.2.3.
For the
purposes of this clause 4.2, Users will, within a reasonable period of time,
inform WVPHN of any and all Improvements.
4.2.4.
The User
acknowledges that the rights assigned to WVPHN in clause 4.2.2 may be assigned by
WVPHN to a third party.
4.2.5.
These Terms
and Conditions shall apply to any Improvement as modified or altered.
4.3.
Infringements
The User must take reasonable care to detect any actual, threatened,
suspected or anticipated infringement of the Microsite or any other
unauthorised use of the WVPHN IP (Infringement).
4.4.
Notification of Infringement
If the User becomes
aware of an Infringement, the User must:
4.4.1.
immediately
notify WVPHN;
4.4.2.
not take
any steps including initiating or responding to an Infringement without the
prior written consent of WVPHN which may be withheld in its absolute
discretion; and
4.4.3.
do
everything WVPHN reasonably requires to assist it in
relation to that action.
5.
CONFIDENTIAL INFORMATION
5.1.
Obligation Not to Disclose Confidential
Information
Each Party agrees
to maintain the confidential nature of the other Party’s Confidential
Information and must not, without the prior written consent of the other Party,
disclose or otherwise provide any Confidential Information of the other Party
to any person other than its Affiliates who have a need to know for carrying
out its obligations under these Terms and Conditions and who have agreed to
keep the Confidential Information confidential and are bound by the same
confidentiality obligations as set out in this clause 5 in a written agreement.
5.2.
Obligation to Implement Reasonable Security
Measures
Each Party must:
5.2.1.
at least
use the same efforts to protect the other Party’s Confidential Information as
it uses to protect its own proprietary information; and
5.2.2.
implement
reasonable security measures to safeguard the other Party’s Confidential
Information from unauthorised use or copying.
5.3.
Obligation to Prevent Significant Loss or Damage
The User
acknowledges and agrees that the disclosure of WVPHN’s Confidential Information
to any person or entity could diminish its value and cause significant loss or
damage to WVPHN and the User is obliged to minimise
any such loss or damage.
5.4.
Duration of Obligations
The obligations in this clause 5 survive termination of these
Terms and Conditions.
6.
PRIVACY
6.1.
WVPHN will
take all reasonable steps to protect data uploaded to the Microsite by the User
including implement practices, procedures and systems to ensure compliance with
the Australian Privacy Principles under the Privacy Act.
7.
WARRANTIES
7.1.
User Warranties
The User warrants
that:
7.1.1.
it will
comply with all of the User’s obligations under these Terms and Conditions;
7.1.2.
any
statement, representation, warranty, undertaking or other provision not
expressly set out in these Terms and Conditions has not been relied upon and
shall have no force or effect;
7.1.3.
it has the
power and authority to execute and exchange these Terms and Conditions and to
perform and observe all of its terms; and
7.1.4.
it is
solely responsible for its use of the Microsite and any data generated from the
Microsite.
7.2.
Exclusion of Further Warranties
Apart from the
warranties contained in these Terms and Conditions and any applicable state or
federal law that cannot be excluded, all other warranties, express or implied,
and whether arising by virtue of statute or otherwise, are hereby excluded.
7.3.
Independent Warranties
Each warranty in
this clause 7 is to be construed independently and is not limited by reference
to or interference from any other warranty or provision of these Terms and
Conditions.
7.4.
Survival of Warranties
This clause and the warranties shall survive any
termination or the expiration of these Terms and Conditions.
8.
INDEMNITY AND LIABILITY
8.1.
User Indemnity
Subject to the
terms of these Terms and Conditions, the User will indemnify, hold harmless and
at all times hold WVPHN fully and effectively indemnified against any losses,
costs, actions, claims, demands, expenses, judgments, court orders or other
liabilities arising directly out of or in connection with:
8.1.1.
any breach
by the User of any of its representations, obligations, warranties or
undertakings contained in these Terms and Conditions; and
8.1.2.
an
infringement by the User of the WVPHN IP including in respect of the Microsite.
8.2.
General Indemnity Obligations
8.2.1.
Except for
clause 8.1.2, neither Party will be liable to the other for any consequential
or indirect loss or damage of any kind arising directly, indirectly, as a
consequence of, or in connection with, these Terms and Conditions.’
8.2.2.
Each
indemnity in these Terms and Conditions is a continuing obligation, separate
and independent from the other obligations of the Parties and survives
termination or expiration of these Terms and Conditions.
8.2.3.
It is not
necessary for a Party to incur expense or to make any payment before enforcing
a right of indemnity conferred by these Terms and Conditions.
8.2.4.
All such
payments shall be made gross (which would include GST, if applicable), without
deduction or withholding of any kind (other than any deduction or withholding
required by law) upon demand by the indemnified person.
8.2.5.
The extent
of indemnity liability of each Party under this clause 8 is reduced in direct
proportion to its contribution to the loss.
8.2.6.
Each Party
is liable for its own actions performed under these Terms and Conditions
regardless of whether it is performed for or on behalf of another Party.
9.
TERMINATION
9.1.
Termination for Convenience
WVPHN may terminate
these Terms and Conditions for any reason and with immediate effect on 7 days
written notice to the User.
9.2.
Termination for Breach
WVPHN may terminate these Terms and Conditions by giving
written notice to the User with immediate effect if the User breaches any
provision of these Terms and Conditions and fails to remedy the breach within 7
days after receiving a notice requiring it to do so.
9.3.
Consequence of Termination
Where these Terms and
Conditions are terminated by WVPHN under this clause 9, the following applies:
9.3.1.
the User
must immediately stop all use of the WVPHN IP including the Microsite;
9.3.2.
the User
must immediately stop all use of any Confidential Information that may have
been made available by WVPHN under these Terms and Conditions;
9.3.3.
at the
request of WVPHN, the User must deliver to WVPHN all documents, materials and
all copies (whatever their form) in the User’s possession which relate to WVPHN
IP and/or the Confidential Information of WVPHN or at the discretion of WVPHN
delete or destroy the same;
9.3.4.
the User
must comply with any instructions provided by WVPHN in relation to the end of these
Terms and Conditions; and
9.3.5.
the Parties
are immediately released from their obligations under these Terms and
Conditions except those obligations in clauses 4 (Intellectual Property), 5
(Confidential Information), 7 (Warranties), 8 (Indemnity and Liability) and this
clause 9.3, and any other obligations that, by their nature, survive
termination.
10.
MISCELLANEOUS
10.1.
Costs on default
Any Party who
defaults in the performance of any obligations under these Terms and Conditions
will pay to the other Party who exercises or attempts to exercise any right
power authority or remedy conferred on that Party under or by virtue of these
Terms and Conditions or otherwise the fair and reasonable costs of doing so,
whether or not any proceedings in any court or tribunal are taken to protect
any such right power authority or remedy.
10.2.
Waiver
No waiver by any
Party of any default in the strict and literal performance of or compliance
with any provision condition or requirement in these Terms and Conditions will
be deemed to be a waiver of strict and literal performance of and compliance
with any other provision, condition or requirement of these Terms and
Conditions nor to be a waiver of or in any way release any Party from
compliance with any provision condition or requirement in the future nor will
any delay or omission of any Party to exercise any right under these Terms and
Conditions in any manner impair the exercise of such right accruing to it
thereafter.
10.3.
Jurisdiction
These Terms and
Conditions will be governed by and construed in accordance with the law of the
State of Victoria and each of the Parties hereby submits to the jurisdiction of
the Courts of the State of Victoria.
10.4.
Variation
WVPHN reserves the
right to amend these Terms and Conditions at any time in its sole discretion
and any such changes will, unless otherwise noted, be effective immediately. Continued
use of the Microsite after such changes have been notified to the User will constitute
acceptance by the User of those changes.
10.5.
Entire Agreement
These Terms and Conditions constitute the sole
and entire agreement between the Parties and no warranties, representations,
guarantees or other terms or conditions of any nature not contained and
recorded therein will be of any force or effect.
10.6.
Severance
Part or all of any clause of these Terms and Conditions that is
unenforceable or illegal will be severed from these Terms and Conditions and
will not affect the enforceability of the remaining provisions of these Terms
and Conditions.
10.7.
Assignment
WVPHN may assign or
permit a third party to obtain the benefit of its rights and interest under these
Terms and Conditions without the prior written consent of the User. The User
must not assign or permit a third party to obtain the benefit of its rights
under these Terms and Conditions except with the prior written consent of WVPHN.
10.8.
Notices
WVPHN may provide any
notification for the purposes of these Terms and Conditions by email and/or by posting
the notification on the Microsite.
11.
DEFINITIONS AND
INTERPRETATION
11.1.
In these Terms and Conditions the words in this clause 11.1 will have the
following meanings unless the context otherwise requires:
11.1.1.
Account means the online account that grants the User access to
the Microsite and the Training Modules requiring registration using a user name and password;
11.1.2.
Confidential Information means any information and materials, in any
form and including information relating to Intellectual Property Rights, which
comes into the possession of either Party which belongs to or relates to or is
about the other Party pursuant to or as a result of or in performance of these
Terms and Conditions, and commercially valuable information of a Party which a
Party regards as confidential to it, which is evident by its nature to be
confidential or is identified as being confidential, including without
limitation, data, know how, drawings, designs, inventions, techniques,
processes, analysis, strategies, research and development data, production know
how and in the case of WVPHN, includes the Microsite and the WVPHN IP, but
excluding information:
1.1.1.1.
which at
the time of its first disclosure or observation under these Terms and
Conditions was in the public domain;
1.1.1.2.
which,
after disclosure or observation under these Terms and Conditions, comes into
the public domain otherwise than by disclosure in breach of these Terms and Conditions;
1.1.1.3.
which is
received by that Party from a third party who has the right to provide the information;
1.1.1.4.
which was
already in the possession or knowledge of that Party without restriction prior
to its disclosure or observation; or
1.1.1.5.
which that
Party is required by law to disclose;
11.1.3.
Defect means an error in the coding of the Microsite or
Documentation or part thereof that affects the inherent operation or
functionality of the Microsite; Defective
is to be similarly construed;
11.1.4.
Documentation means any operating manuals and any other materials in any
form or medium including users’ manuals, flow charts, drawings, configuration
guides and software listings, which are designed to assist or supplement the
understanding or application of the Microsite or that specifies the
functionality and is provided to the User by WVPHN;
11.1.5.
Improvements mean any development, enhancement or modification of the WVPHN
IP or any part thereof, including without limitation the Microsite’s design or
functionality that may make the Microsite more effective, useful or suitable or
would in any other way render the Microsite and/or the WVPHN IP more preferable
in commerce including new releases, upgrades and updates to the Microsite;
11.1.6.
Intellectual Property Rights means all rights resulting from intellectual
activity whether capable of protection by statute, common law or in equity and
including copyright, discoveries, inventions, patent rights, registered and
unregistered trade marks,
design rights, circuit layouts, plant varieties and all rights and interests of
a like nature including but not limited to methods and techniques, together
with any documentation relating to such rights and interests;
11.1.7.
Leaner means any person to which a User,
with the required permissions from WVPHN, provides access to the Microsite or
Training Modules;
11.1.8.
Microsite means the online microsite made available by WVPHN and its
affiliates consisting of software applications and modules configured for Users
that facilitates the provision of training by WVPHN, including
‘all Intellectual Property Rights
subsisting in the Microsite, any Documentation and any Improvements to the
Microsite and/or any Documentation, other than any User Data uploaded into the
Microsite;
11.1.9.
Moral Right means a right of attribution of authorship; a right not to
have authorship falsely attributed. a right of integrity of authorship and/or a
right of a similar nature as defined by the Copyright Act 1968, and which
exists or comes to exist anywhere in the world in a deliverable form comprised
within these Terms and Conditions;
11.1.10.
Party means WVPHN or the User or both of them as the context dictates;
11.1.11. Program
means the Aged Care Telehealth
Training Program;
11.1.12. User means the individual or organisation authorised
to access and use the Microsite under these Terms and Conditions;
11.1.13. Terms
and Conditions means these terms and conditions of use of the Microsite and/or WVPHN IP in force and uploaded by WVPHN to the Microsite from
time to time;
11.1.14. Training
Modules means the training modules that Users can access through the Microsite;
11.1.15. WVPHN means Western Victoria Primary Health Network
Limited ABN 87 061 300 918; and
11.1.16. WVPHN
IP means Intellectual Property
Rights owned by or licensed to WVPHN and subsisting in the Microsite and used
or intended to be used in connection with the Microsite, including documents,
data, manuals, plans, designs, methods and procedures including:
1.1.1.6.
any Documentation;
1.1.1.7.
training
programs and materials; and
1.1.1.8.
any other
development, enhancement, or modification any part thereof including its design
or functionality that may make the Microsite more effective, useful or suitable
or would in any other way render the Microsite more
preferable in commerce.
11.2.
In these Terms and Conditions except to the extent that the context
otherwise requires:
11.2.1.
words
denoting the singular include the plural and vice versa;
11.2.2.
words
denoting individuals or persons include bodies corporate and trusts and vice versa;
11.2.3.
reference
to a clause, paragraph or schedule is a reference to a clause, paragraph or
schedule of these Terms and Conditions;
11.2.4.
reference
to a document or agreement includes reference to that document or agreement as
changed, novated or replaced from time to time;
11.2.5.
headings
are included for convenience only and will not affect the interpretation of these
Terms and Conditions or any schedule;
11.2.6.
words
denoting any gender includes all genders; and
11.2.7.
where a
word or phrase is given a definite meaning in these Terms and Conditions a part
of speech or other grammatical form for that word or phrase has a corresponding
meaning.
