TERMS AND CONDITIONS FOR USE OF EQUI ENERGY YOUTH TOOLKIT WEB APPLICATION
1. Agreement
1.1 Acceptance of Terms and Conditions
These Terms and Conditions govern the Licensee’s use of the Application and form part of the Agreement between the Licensor and the Licensee. By registering a User Account or accessing content within the Application, the Licensee confirms their acceptance of the Terms and Conditions and agrees to be bound by the Agreement.
The Agreement comprises in descending order of precedence:
(a) the Special Conditions (if any);
(b) the Terms and Conditions; and
(c) the Registration Details.
2. Definitions and Interpretation
2.1 Definitions
Application means an electronic version of the Licensor’s Calming Plan and Individual Support Plan which allows Authorised Persons to populate fields to create a TAR3 Plan for an individual Client and save or edit the TAR3 Plan as an electronic file, as amended or modified by the Licensor from time to time.
Authorised Person means a person authorised by the Licensee to deliver mental health support services to a Client by preparing an TAR3 Plan.
Business Day means:
(a) for receiving a notice under clause 14, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in New South Wales, Australia.
Claim means any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to the Agreement.
Client means a young person accessing mental health support services from the Licensee.
Commencement Date means in respect of each Licence, the date on which the Licensor accepts an order for the Licence.
Dispute has the meaning given in clause 14.2(a).
TAR3 Plan means an electronic young person plan (comprised of a Calming Plan and an Individual Support Plan) prepared for an individual Client using the Application (as saved and/or edited from time to time).
Excluded Loss means:
(a) loss not arising naturally according to the usual course of things; or
(b) loss of revenue, loss of profit, loss of custom, loss of goodwill, loss of overhead recovery, loss of business opportunity, loss of the use of money, loss of use of property, loss of contract (including the Agreement), loss of production, loss or payment of financing charges or cost recovery, opportunity cost, payment of liquidated sums or payment of damages (whether under the Agreement or otherwise).
Fee Schedule the schedule of licence fees attached to these Terms and Conditions, as amended by the Licensor from time to time.
Force Majeure Event means any event or cause beyond the reasonable control and without default or negligence of the party claiming force majeure (provided such party has taken reasonable precautions).
Further Licence Period means for each Licence, each period of one year commencing on the anniversary of the Commencement Date.
Initial Licence Period means for each Licence, the period of 1 year commencing on the Commencement Date.
Intellectual Property Rights means any intellectual or industrial property rights (whether registered or not and whether protected by statute or not) including, without limitation, all rights, wherever subsisting in the world, in relation to:
(a) any patent, trade mark or service mark, copyright, design, business name, trade secret, system, program, invention, prototype, application, know-how, designs, process, logo or confidential information; and
(b) any licence or other right to use or to grant the use of any of them or to be the registered proprietor or authorised user of any of them.
Invoice means a tax invoice issued by the Licensor to the Licensee under clause 7.2(a) or clause 7.2(b).
Liability means any liability (whether actual, contingent or prospective), loss, damage, debt, cost or expense (including legal costs and expenses) of whatever nature or description.
Licence means a licence for the Licensee to create, edit and use a TAR3 Plan for a Client during the Licence Period using the Application, subject to the terms of the Agreement.
Licence Fee means the fee payable for each Licence for each Licence Period as set out in the Fee Schedule or as otherwise agreed by the Licensor in writing, including for a Special Quantity, as adjusted from time to time in accordance with the Agreement.
Licence Period means the Initial Licence Period or any Further Licence Period.
Licence Term means, for a Licence:
(a) the Trial Period (if any);
(b) the Initial Licence Period; and
(c) any Further Licence Period,
provided that if a Licence is terminated or revoked, the Licence Term will end on the date of termination or revocation.
Licensee means the party named as such in the Registration Details.
Licensor means Equi Energy Youth Incorporated (INC 1800495).
Material Breach has the meaning given in clause 11.3(c).
Moral Rights has the meaning given under the Copyright Act 1968 (Cth).
Payment Date means, for an Invoice, the date which is [14] days after the date of an Invoice, or such other date as the Licensor may agree in writing.
Purpose means the preparation by an Authorised Person of a TAR3 Plan for an individual Client to assist the Licensee to deliver mental health support services to the Client.
Registration Details means the details of the Licensee provided by, or on behalf of, the Licensee at the time of its initial registration to use the Application, as amended from time to time.
Revocation Date has the meaning given to the term by clause 6.3(a).
Special Conditions means the special conditions, if any, agreed in writing from time to time by the Licensor and the Licensee, which may include alternative Licence Fees.
Special Quantity means a bundle of Licences in a quantity other than a quantity set out in the Fee Schedule.
Terms and Conditions means these terms and conditions, as amended from time to time in accordance with the Agreement.
Trial Period means a period of [14 days] or such longer period as the Licensor agrees in writing.
User Account means the account established for the Licensee to access and use the Application in accordance with the Agreement.
In the Agreement, headings and bold text are for ease of reference only and do not affect the interpretation of the Agreement and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to the Agreement and a reference to the Agreement includes any schedule or annexure;
(d) a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to a party to the Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Agreement or any part of it.
3.1 Requirement for Licence
(a) The Licensee must obtain and hold a Licence for each TAR3 Plan.
(b) A Licence which has been used to create a TAR3 Plan for a Client must not be used for any other Client, even if the Application or TAR3 Plan is no longer being used for the first Client.
3.2 Grant of licence by Licensor
For each Licence held by the Licensee, the Licensor grants to the Licensee a non‑exclusive licence to use the Application for the Purpose during the Licence Term subject to the terms set out in the Agreement.
The Licensee may obtain Licences from time to time by:
(a) establishing a User Account;
(c) paying the Licence Fee for each Licence in accordance with clause 6.
3.4 Refusal of Registration of User Account
The Licensor may, in its absolute discretion, refuse to accept a request for the registration of a User Account or an order for a Licence.
3.5 Restriction on Use by Licensee
The Licensee must not:
(a) transfer a Licence from one Client to another Client;
(b) use the Application or a TAR3 Plan for any purpose or in any manner other than as set out in the Agreement;
(c) permit any third party, other than an Authorised Person, to use the Application; or
(d) copy, modify, merge, combine with any other products, reproduce, reverse engineer or decompile the whole or any part of the Application or a TAR3 Plan, except to the extent otherwise authorised by the Agreement or with the Licensor’s prior written consent.
3.6 Licence Bundles
(a) Licences acquired through the Application may be packaged into, and must be purchased in, pre-determined bundles as set out in the Fee Schedule.
(b) If the Licensee wishes to acquire Licences in a quantity which is not set out in the Fee Schedule, the Licensee may contact the Licensor to request a bespoke number of Licences, in which case, the Licensor, in its discretion, may offer to grant the quantity of Licences requested by the Licensee or such other number of Licences as the parties agree.
(c) The Licence Fee for each Licence Period for each Licence in a Special Quantity will be the Licence Fee agreed by the Licensor and the Licensee, subject to any adjustment under clause 7.4, for any Further Licence Period.
3.7 Trial Period
(a) The Licensor may in its absolute discretion allow the Licensee to use the Application on a trial basis during a Trial Period.
(b) If the Licensee wishes to extend a Licence after the expiry of the Trial Period, the Licensee must place an order under clause 3.3(b).
(c) If the Licensee does not place an order under clause 3.3(b) by the end of the Trial Period, the Licence will terminate at the end of the Trial Period.
(d) All terms of the Agreement, excluding the obligation to pay a Licence Fee, apply during the Trial Period.
The Licensee acknowledges and agrees that:
(a) the content of a TAR3 Plan is for general information and educational purposes only and the use of such content is entirely at each Authorised Person’s and each Client’s own risk and judgement;
(b) the Application is intended to assist Authorised Persons to apply their own knowledge, skills and expertise to the provision of mental health support services to Clients;
(c) a TAR3 Plan is not a substitute for independent professional advice and it is recommended each Client obtain appropriate professional advice relevant to their particular circumstances from a qualified person; and
(d) the Licensor strongly recommends that an Authorised Person or Client does not disregard professional mental health or other advice or delay in seeking treatment or advice because of something they have seen in the TAR3 Plan.
5. Intellectual Property Rights
5.1 Acknowledgement of ownership
The Licensee acknowledges and agrees that:
(a) the Licensor owns, or is an authorised user of, all Intellectual Property Rights in:
(i) the Application which exist as at the date of the Agreement; and
(ii) any TAR3 Plan created using the Application;
(b) under the Agreement, the Licensor has granted the Licensee a licence to:
(i) use the Application; and
(ii) create, modify or use any TAR3 Plan created using the Application; and
(c) the Agreement does not constitute or effect the sale or transfer of ownership to the Licensee of any Intellectual Property Rights in the Application or any TAR3 Plan created.
5.2 Licensee Obligations
The Licensee:
(a) agrees that it must not, except as expressly authorised by the terms of the Agreement, disclose the Intellectual Property Rights in the Application received by it from the Licensor to any other person;
(b) acknowledges that it has never had, does not have and will not have any proprietary rights in the Application or the Intellectual Property Rights of the Licensor;
(c) will not directly or indirectly do anything which is inconsistent with, or that would or might invalidate or put in dispute, the Licensor's title in the Application;
(d) must use reasonable endeavours to safeguard the Intellectual Property Rights of the Licensor in the Application;
(e) must immediately notify the Licensor if it becomes aware of a person using the Intellectual Property Rights of the Licensor without the apparent approval of the Licensor or any possible infringement of the Intellectual Property Rights, which comes to its attention; and
(f) if requested by the Licensor and at the Licensor’s expense, do all such acts necessary to assist the Licensor in protecting its interest in its Intellectual Property Rights in the Application including, if requested by the Licensor and at the Licensor’s cost, join the Licensor in taking any infringement proceedings the Licensor determines in its absolute discretion to take.
5.3 Assistance
If any person makes any claim alleging that the Application or its use infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must:
(a) promptly notify the Licensor;
(b) not make any admissions or take any action in relation to the claim without the Licensor's written consent;
(c) permit the Licensor control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
(d) co-operate with, assist and act at all times in accordance with the reasonable instructions of the Licensor, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
6. Licence Term, Termination and Revocation
Each Licence commences on the Commencement Date and, subject to any earlier termination or revocation, continues for the Licence Term.
(b) Without limiting its rights under clause 6.2(a), the Licensee may terminate a Licence with immediate effect by giving the Licensor written notice of termination at any time not less than 7 days before a Payment Date.
(c) Without limiting its rights under clause 6.2(a), if the Licensor:
(i) is entitled to issue an Invoice to the Licensee under clause 7.2(b) for a Further Licence Period; and
(ii) has not issued an Invoice to the Licensee for a Licence for that Further Licence Period,
the Licensor may terminate the Licence by giving not less than 7 days’ written notice to the Licensee.
If the Licensor has issued an Invoice to the Licensee and the Licensee does not pay the relevant Licence Fee on or before the Payment Date (for any reason):
(b) if the Licence Fee has not been paid in full by the Revocation Date, without limiting any other remedy available to the Licensor, the Licensor may revoke the Licence on and from the Revocation Date without further notice to the Licensee.
Subject to clause 6.5, if a Licence is revoked or terminated in accordance with this clause 6 or clause 12, the Licensor:
(a) will use its reasonable endeavours to maintain the data relating to any e‑YPP that was prepared using the Licence for a period of not less than 6 months after the end of the Licence Term; and
(b) may (in its discretion, not to be unreasonably withheld) upon receipt of a written request from the Licensee, give the Licensee access to the TAR3 Plan (in a non-editable format capable of being downloaded, saved and printed and to be used for the Purpose only) provided the request is made within 6 months of the end of the Licence Term.
6.5 Failure to pay Licence Fee for Initial Licence Period
If a Licence is terminated or revoked due to the Licensee’s failure to pay the Licence Fee for the Initial Licence Period or at the end of any Trial Period, the Licensor will have no obligations under clause 6.4 with respect to any e‑YPP created under that Licence.
In consideration of the grant of the Licence, the Licensee must pay the Licensor the Licence Fee for each Licence for each Licence Period.
(a) Following acceptance of an application under clause 3.3(b), the Licensor will issue a tax invoice to the Licensee for the Licence Fees for each Licence in the application.
(c) For the Avoidance of doubt, an Invoice may cover one or more Licences.
7.3 Payment
The Licensee must pay each properly rendered Invoice on or before the Payment Date.
7.4 Adjustment to Licence Fees
The Licensor may adjust the Licence Fee for any Further Licence Period in its absolute discretion by giving notice to the Licensee of the adjusted Licence Fee at the time of, or at any time before, the delivery of the Invoice for that Further Licence Period.
8.1 Interpretation
In this clause 8, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth ) has the meaning given to it in that law.
All amounts payable under the Agreement are expressed exclusive of GST.
If a party makes a supply under or in connection with the Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 8.3 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made unless that consideration is stated to already include GST.
8.4 Reimbursements
If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 8.3.
The Licensor warrants that the Licensor has the legal right and power to enter the Agreement and grant Licences to the Licensee in accordance with the Agreement.
The Licensee warrants to, and in favour of, the Licensor that, at the time of entry into the Agreement and at all times throughout the term of the Agreement:
(a) the Licensee has the legal right and power to enter into and be bound by the Agreement and to fulfil the Licensee’s obligations under the Agreement; and
(b) the Registration Details are complete, correct and up to date.
9.3 No other warranty by Licensor
The Licensor makes no other warranty (other than those expressly provided in the Agreement) to any person (including the Licensee) in relation to the Application except those warranties set out in clause 9.1 and those warranties which cannot be specifically excluded under law and the Licensor expressly excludes all other terms, conditions, warranties, undertakings, inducements or representations, whether expressly or implied or implied by statute.
The Licensee agrees to indemnify and will keep indemnified the Licensor, its directors, officers, employees and agents (collectively, Indemnified Person), against any and all Liability or Claim incurred or suffered by an Indemnified Person arising from or in any way connected with:
(a) a breach by the Licensee of any of the Licensee’s obligations under the Agreement (including any warranty given by the Licensee);
(b) the unauthorised use or disclosure of the Application or Intellectual Property Rights of the Licensor by the Licensee or any Authorised Person or other subcontractor, agent or employee of the Licensee; or
(c) any act or default or omission or wilful misconduct or negligence of the Licensee or any Authorised Person or other subcontractor, agent or employee of the Licensee in connection with the Agreement,
provided that the Licensee will not be liable under this clause 10.1 to the extent to which the Liability or Claim is caused or contributed to by any negligent or wrongful act or omission or wilful misconduct of the Licensor or Indemnified Person.
To the maximum extent permitted by law, except as expressly provided for in the Agreement, the Licensor will not be liable to the Licensee in respect of any loss or damage however caused in relation to the Licensee’s use of the Application.
10.3 No Excluded Loss
Despite any other provision in the Agreement, to the maximum extent permitted by Law, neither party will be liable to the other for any Excluded Loss of any kind.
10.4 Limitation of liability
To the maximum extent permitted by law, the maximum aggregate liability of the Licensor arising out of or in connection with the Agreement or in connection with the Licence, whether arising under contract, in tort (including negligence), in equity, under statute or otherwise, will be limited to an amount equivalent to the aggregate of all Licence Fees paid by the Licensor in the 12 months preceding the date that the Claim arose, provided that this limitation of liability does not apply to or limit or exclude the liability of the Licensor arising out of, or in any way in connection with:
(a) personal injury or death;
(b) loss of or damage to any property; or
(c) any intentional conduct, breach, act or omission by the Licensor done or omitted to be done after having had regard to, or with conscious or reckless indifference to, the foreseeable harmful consequences arising from the conduct, breach, act or omission.
11. Obligations of the parties
The Licensee must:
(a) only authorise Authorised Persons who have received appropriate training on applying the tools contained in the Application to use the Application;
(b) comply with all reasonable user instructions notified by Licensor from time to time and ensure that Authorised Persons also comply with all such instructions;
(c) provide its own hardware and access to the internet to be able to use the Application;
(d) take all reasonable precautions to prevent access to the Application by unauthorised Authorised Persons (including person who may previously have been an Authorised Person), including by changing passwords regularly, restricting access to passwords and implementing appropriate cybersecurity policies and protocols;
(e) ensure only personal information that has been collected and is being used in accordance with the Privacy Act 1988 (Cth) is input or saved using the Application;
(f) use reasonable efforts to safeguard the Licensor’s Intellectual Property Rights in the Application;
(g) if requested by the Licensor and at the Licensor’s expense, do all such acts necessary to assist the Licensor in protecting its Intellectual Property Rights in the Application, including if requested by the Licensor and at the Licensor’s cost, join the Licensor in taking any infringement proceedings the Licensor determines to take; and
(h) implement any software updates issued by the Licensor in relation to the Application as soon as reasonably practicable.
11.2 Licensor Obligations
The Licensor must:
(a) in respect of each Licence, grant access to the Application and any supporting documentation related to the Application to the Licensee during the Term;
(b) manage personal data in accordance with the Licensor’s privacy policy (as amended from time to time);
(c) use reasonable endeavours to ensure the Application is free of any bugs or errors which substantially impact the performance and functionality of the Application, as reasonably determined by the Licensor;
(d) use reasonable endeavours to make the Application available at all times, except for:
(i) planned downtime, in the event of which the Licensor must use reasonable endeavours to provide reasonable prior notice to the Licensee; or
(ii) any unavailability caused by a Force Majeure Event, in such event the Licensor must take reasonable steps to overcome effects of any Force Majeure Event as soon as reasonably practicable,
but the Licensor does not guarantee the Application will be available at all times or any specific time.
11.3 Breach by Licensee
(ii) terminate the Agreement with immediate effect, with or without prior notice to the Licensee, and whether or not the Licensor has suspended or restricted access to the Application or User Account under clause 11.3(a) or clause 11.3(b)(i) with respect to the same breach.
(c) For the purposes of clause 11.3(b), a Material Breach includes:
(i) a breach by the Licensee of clauses 3.5, 5, 9.2, 10.1, 10.2, 11.1, or 13;
(ii) a failure by the Licensee to pay any outstanding Licence Fee on or before the Revocation Date;
(iii) any act or omission of an Authorised User, which if done or omitted to be done by the Licensee would constitute a breach of any of the provisions specified in clause 11.3(c)(i) or otherwise entitle the Licensor to terminate the Agreement; or
(iv) the failure by the Licensee to remedy any other breach of the Agreement within 14 days after receipt of a notice from the Licensor specifying the breach and requesting its remedy.
12.1 Term of Agreement
The Agreement commences when:
(a) the Licensor accepts an application for the registration of a User Account for the Licensee; or
(b) the Licensee commences using the Application,
whichever occurs first, and continues until:
(c) terminated in accordance with the Agreement; or
(d) 30 days after the expiry of the last Licence Term,
whichever occurs first.
12.2 Termination by Licensor
In addition to any other right of termination available to the Licensor and without prejudice to any other right of termination available to the Licensor or Licensee under the Agreement, the Licensor may terminate the Agreement by giving not less than 14 days’ prior written notice of termination to the Licensee at any time, in which case:
(a) the Licensor may not order any additional Licences under clause 3.3(b) or otherwise or renew or extend any existing Licence for a Further Licence Period after the date on which it receives the notice from the Licensor; and
(b) termination will be effective on and from the date on which the last Licence Term ends or such other date as the Licensor and Licensee agree in writing.
12.3 Consequences of termination
Upon termination of the Agreement for any reason:
(a) the Agreement ends as to its future operation except for the enforcement of any Claim that arises on, or has arisen before, termination or with respect to any right or obligation which survives termination;
(b) all Licences are terminated;
(c) the Licensee must immediately cease using the Application;
(d) to the maximum extent permitted by law, the Licensee is not entitled to any refund of the Licence Fees; and
(e) the Licensor's obligations in relation to the Application under the Agreement will immediately cease.
13.1 Court proceedings
Nothing in this clause 14 prevents the Licensee or the Licensor seeking urgent injunctive or other interim relief from a court, or from continuing existing court proceedings.
13.2 Discussion between parties
(b) In the first instance, the parties must use reasonable endeavours to resolve the Dispute by direct discussion and negotiation.
13.3 Referral to Mediation
If the parties have been unable to resolve the Dispute within 10 Business Days of a notice provided under clause 14.2(a) either party may submit the Dispute to mediation administered by the Australian Disputes Centre (ADC) in accordance with the ADC Guidelines for Commercial Mediation, which Guidelines are taken to be incorporated into the Agreement.
(a) A notice, demand, consent, approval or communication under the Agreement (Notice) must be:
(i) in writing, in English and signed by a person duly authorised by the sender; and
(b) Communications by email need not be marked for the attention in the way required by clause 15.1(a)(ii). However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.
A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, six days after the date of posting (or ten days after the date of posting if posted to or from a place outside Australia); or
(c) if sent by email, at the time the email was sent unless the sender receives an automated message that the email has not been delivered,
but if receipt is not on a Business Day or is after 5.00pm on a Business Day (in the time zone of the addressee), the Notice is taken to be received at 9.00am on the next Business Day.
The Licensee’s address will be as set out in the User Account, as updated from time to time.
The Licensor’s address is as follows:
Equi Energy Youth Incorporated
48 Brown Road
Broadmeadow NSW 2292
Attention: Ben Payne
Email address: info@eeyouth.org.au
A party may change its address for service by giving Notice of that change to the other party.
The Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by the Agreement and have no further effect.
The Agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
The Licensee must not assign, transfer or otherwise deal with the Agreement or any right under the Agreement without the prior written consent of the Licensor.
Part or all of any provision of the Agreement that is illegal or unenforceable will be severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
Waiver of any power or right under the Agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
15.6 Rights, remedies additional
Any rights and remedies that a person may have under the Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
15.7 Governing law and jurisdiction
The Agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
15.8 Survival on Termination
Clauses 1.2, 2, 4, 5, 6.4, 7, 8, 10, 12.3, 13, 14, 15 and this clause 16 and any other term by its nature intended to survive termination of the Agreement survives termination of the Agreement.