1. Agreement
1.1. Before accessing or using any part of the Dentalprenr website (the “site”), you should read carefully the following terms and conditions of service (the “terms and conditions” or “agreement”). This is a legal agreement between you, our customer (referred to as you or your) and Dentalprenr Pty Ltd (ABN 99 605 658 777) (”we”/ “us” /“our” ) pursuant to which we will provide you with the Services.
1.2. These terms and conditions govern your access to and use of the Site and all services, products, applications, software, programs, tools, materials, content, websites or pages, mobile applications, installed applications and service offerings or information available through the Site or used in any manner related thereto (collectively referred to herein as the “Service” and/or the “Services”) as may be specified in Schedule 1 or the Order Form
1.3. Dentalprenr is willing to allow you access to and use of the Site on the condition that you accept and agree to all of the terms and conditions.
2. ACCEPTANCE
You accept this Agreement by clicking or ticking a box indicating your acceptance on the Site or otherwise advising us that you wish to use the Services
3. AUTHORITY
If you are agreeing to this Agreement on behalf of a company, your employer, an organisation, or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to the terms of this Agreement. If you are accepting this Agreement on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
4. LICENCE OF USER
4.1. We will provide access to the Platform and provide the Services to the best of our abilities, however:
(a) Access to the Platform may be prevented by issues outside of our control; and
(b) We accept no responsibility for ensuring ongoing access to the Platform
4.2. We grant you a limited, non-exclusive and revocable licence to access and use the Platform for the duration of this Agreement, in accordance with the terms and conditions of this Agreement and any applicable Order Form.
4.3. We may revoke or suspend your licence if you breach any of the terms in this Agreement.
5. ACCEPTABLE USE
5.1. You agree not to, and not to allow third parties, to use the Services:
(a) to breach, or encourage the breach of, the legal rights of others;
(b) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
(c) to interfere with the use of the Platform, or the equipment used to provide the Services, by customers,;
(d) to alter, disable, interfere with, circumvent or reverse-engineer any aspect of the Platform;
(e) to upload Customer Data without consent if such consent is required by applicable laws and regulations (you are solely responsible for ensuring compliance with all applicable laws and regulations in the relevant jurisdictions);
(f) do anything that leads, or may lead, to a decrease in the value of our intellectual property rights in the platform;
(g) use or exploit any of the material appearing on the platform for, or in connection with any business or enterprise that is in competition with us.
(b) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
(c) to interfere with the use of the Platform, or the equipment used to provide the Services, by customers,;
(d) to alter, disable, interfere with, circumvent or reverse-engineer any aspect of the Platform;
(e) to upload Customer Data without consent if such consent is required by applicable laws and regulations (you are solely responsible for ensuring compliance with all applicable laws and regulations in the relevant jurisdictions);
(f) do anything that leads, or may lead, to a decrease in the value of our intellectual property rights in the platform;
(g) use or exploit any of the material appearing on the platform for, or in connection with any business or enterprise that is in competition with us.
5.2. Your failure to comply with this clause may result in suspension or termination, or both, of the Services pursuant to this Agreement.
6. RESPONSIBILITIES AND RESTRICTIONS
6.1.
Dentalprener Responsibilities.
We will provide the Platform to you during the Term in accordance with this Agreement.
We will provide the Platform to you during the Term in accordance with this Agreement.
Use of Services.
You may only use the Services in the regular course of your business, and not for resale, distribution, leasing, rental, loaning, sales, sublicensing, distribution or otherwise transfer of your use of the Services. Your use of the Services cannot be transferred to an unauthorised third party.
You may only use the Services in the regular course of your business, and not for resale, distribution, leasing, rental, loaning, sales, sublicensing, distribution or otherwise transfer of your use of the Services. Your use of the Services cannot be transferred to an unauthorised third party.
6.2. Customer Responsibilities.
You are responsible for all activity that occurs under your accounts. You will:
You are responsible for all activity that occurs under your accounts. You will:
(a) be solely responsible for all activity, which must be in accordance with this Agreement;
(b) be solely responsible for Customer Data (other than with respect to our obligations set forth in the Agreement);
(c) obtain and maintain all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content you will use in connection with the Services;
(d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify us promptly of any known unauthorized access or use; and
(e) use the Services only in accordance with applicable laws and regulations, including privacy laws, and anti-SPAM laws in the relevant jurisdiction.
(b) be solely responsible for Customer Data (other than with respect to our obligations set forth in the Agreement);
(c) obtain and maintain all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content you will use in connection with the Services;
(d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify us promptly of any known unauthorized access or use; and
(e) use the Services only in accordance with applicable laws and regulations, including privacy laws, and anti-SPAM laws in the relevant jurisdiction.
6.3. Restrictions.
You will not
You will not
(a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation,
(b) interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein, or
(c) disrupt, disable, translate, decompile, or reverse engineer the Services, or
(d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
(b) interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein, or
(c) disrupt, disable, translate, decompile, or reverse engineer the Services, or
(d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
7. PRIVACY
7.1. We maintain a Privacy Policy in compliance with the provisions of the Privacy Act for data that we collect and store. The policy can be found here https://dentalprenr.com/privacy-policy/
7.2. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
8. FEES AND PAYMENT
8.1. Fees, Invoicing and Payment.
We will invoice you in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due on the 1st of the calendar month in advance for that month. First month’s fees shall be pro-rated for the first month. You are responsible for providing us with complete, accurate and up to date billing and contact information.
Except as otherwise specified or in an Order Form
(a) Fees will be quoted and paid in United States Dollars (USD); and
(b) payment obligations are non-cancellable, and Fees paid are non-refundable
(b) payment obligations are non-cancellable, and Fees paid are non-refundable
8.2. Overdue Fees.
If payment is not received from you by the due date, then at our discretion, we may charge interest at the rate of 1.5% of the outstanding balance per month from the date such payment was due until the date paid.
If payment is not received from you by the due date, then at our discretion, we may charge interest at the rate of 1.5% of the outstanding balance per month from the date such payment was due until the date paid.
8.3. Suspension of Services.
Except with respect to any Fees disputed in good faith by you, if any Fees are seven (7) or more days overdue, we may, without limiting our other rights and remedies, suspend the provision of Services and your use of the Platform until we are paid in full.
Except with respect to any Fees disputed in good faith by you, if any Fees are seven (7) or more days overdue, we may, without limiting our other rights and remedies, suspend the provision of Services and your use of the Platform until we are paid in full.
8.4. Payment Disputes.
If an invoiced amount is disputed in good faith by you, you must notify us in writing and provide sufficient details of the invoice dispute within five (5) business days of your receipt of invoice. If you fail to do so, you are deemed to have waived your right to dispute that invoice and the invoice will be deemed payable. Nothing in this Clause shall be deemed to waive your obligation to pay any undisputed amounts in accordance with Clause 8.1.
If an invoiced amount is disputed in good faith by you, you must notify us in writing and provide sufficient details of the invoice dispute within five (5) business days of your receipt of invoice. If you fail to do so, you are deemed to have waived your right to dispute that invoice and the invoice will be deemed payable. Nothing in this Clause shall be deemed to waive your obligation to pay any undisputed amounts in accordance with Clause 8.1.
8.5. Taxes.
The Fees are exclusive of all Goods and Services taxes, levies, duties or similar governmental assessments of any nature (collectively, Taxes). You are responsible for paying all Taxes associated with your purchase except for those based on our net income, property, or employee withholdings. Taxes shall not be deducted from the payments to us, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, we receive and retain (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
The Fees are exclusive of all Goods and Services taxes, levies, duties or similar governmental assessments of any nature (collectively, Taxes). You are responsible for paying all Taxes associated with your purchase except for those based on our net income, property, or employee withholdings. Taxes shall not be deducted from the payments to us, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, we receive and retain (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
8.6. Audit Rights.
We may audit your compliance with this Agreement at any time during the Term. You must cooperate with any reasonable request by us in connection with any proposed audit. If we determine that you have allowed access to the Services other than as permitted under this Agreement or any Order Form and as a result additional Fees are owed to us, we will invoice you for the additional fees which will be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies we may have.
9. PROPRIETARY RIGHTS
9.1. Dentalprenr Ownership.
Subject to any rights expressly granted to you in the Agreement, we and our licensors, as applicable, reserve all right, title and interest in and to the Services, including information presented in any form and intellectual property rights (“Dentalprenr Intellectual Property”).
Subject to any rights expressly granted to you in the Agreement, we and our licensors, as applicable, reserve all right, title and interest in and to the Services, including information presented in any form and intellectual property rights (“Dentalprenr Intellectual Property”).
9.2. Customer Ownership and Licenses.
As between us and you, you own all rights, title and interest in and to
As between us and you, you own all rights, title and interest in and to
(a) all Customer Data and
(b) any information supplied to us by you (“Customer Materials”). You grant to us a non-exclusive, non-transferable, royalty free, non-sub-licensable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to you. No other rights or implied licenses in Customer Materials are granted to Dentalprenr other than as expressly set forth herein.
(b) any information supplied to us by you (“Customer Materials”). You grant to us a non-exclusive, non-transferable, royalty free, non-sub-licensable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to you. No other rights or implied licenses in Customer Materials are granted to Dentalprenr other than as expressly set forth herein.
10. CONFIDENTIALITY
10.1. Definition of Confidential Information.,
Confidential Information means all confidential information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data; Dentalprener Confidential Information includes, but is not limited to, the Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that
Confidential Information means all confidential information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data; Dentalprener Confidential Information includes, but is not limited to, the Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that
(a) is or becomes generally known to the public without breach of any obligation owed to Discloser,
(b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser,
(c) is received from a third party without any obligation of confidentiality, or
(d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
(b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser,
(c) is received from a third party without any obligation of confidentiality, or
(d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
10.2. Protection of Confidential Information.
Except as otherwise permitted in writing by Discloser, Recipient will
Except as otherwise permitted in writing by Discloser, Recipient will
(a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and
(b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
(b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
10.3. Protection of Customer Data.
Without limiting the above, we will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except:
Without limiting the above, we will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except:
(a) in order to provide the Services,
(b) to prevent or address service or technical problems in connection with support matters, or
(c) as expressly permitted in writing by you,
(b) to prevent or address service or technical problems in connection with support matters, or
(c) as expressly permitted in writing by you,
we will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Clause 10.4.
10.4. Compelled Disclosure.
Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
11. WARRANTIES AND DISCLAIMERS
11.1. Dentalprenr Warranties.
We warrant that:
We warrant that:
(a) the Platform will perform substantially in accordance with the Documentation made available
to you,
(b) the functionality of the Platform will not be materially decreased during the Term; and
(c) the Services will be performed in a professional and workmanlike manner.
For any breach of the warranties, your exclusive remedy will be as provided in Clause 14.3. Notwithstanding the foregoing, if any Order Form has a Term of more than twelve (12) months, in the event we or any of our licensors materially change or cease providing a material aspect of the Services, we may effect such change or cessation following reasonable notice to you.
(b) the functionality of the Platform will not be materially decreased during the Term; and
(c) the Services will be performed in a professional and workmanlike manner.
For any breach of the warranties, your exclusive remedy will be as provided in Clause 14.3. Notwithstanding the foregoing, if any Order Form has a Term of more than twelve (12) months, in the event we or any of our licensors materially change or cease providing a material aspect of the Services, we may effect such change or cessation following reasonable notice to you.
11.2. Mutual Warranties.
Each Party represents and warrants that
Each Party represents and warrants that
(a) it has the legal power to enter into this Agreement,
(b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and
(c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement
(b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and
(c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement
11.3. Disclaimers.
Except as expressly provided herein we make no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaim all implied warranties, including but not limited to any warranties of merchantability, non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law.
Except as expressly provided herein we make no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaim all implied warranties, including but not limited to any warranties of merchantability, non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law.
12. INDEMNIFICATION
12.1. Indemnification by Customer.
You will defend and indemnify us against any Claim made or brought against us by a third party
You will defend and indemnify us against any Claim made or brought against us by a third party
(a) relating to or arising from your use, or your authorised Users’ use of the Services in breach of this Agreement,
(b) relating to or arising from our permitted use of Customer Data or Customer Materials, including a third party alleging that the Customer Data or Customer Materials infringes or misappropriates the intellectual property rights of a third party;
(c) relating to an injury, illness or death;
(d) relating to damage to property; or
(e) caused by your actual or alleged breach of this Agreement, laws, including penalty imposed by a competent authority.
(b) relating to or arising from our permitted use of Customer Data or Customer Materials, including a third party alleging that the Customer Data or Customer Materials infringes or misappropriates the intellectual property rights of a third party;
(c) relating to an injury, illness or death;
(d) relating to damage to property; or
(e) caused by your actual or alleged breach of this Agreement, laws, including penalty imposed by a competent authority.
12.2. Exclusive Remedy.
This Clause 12 is the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Clause.
This Clause 12 is the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Clause.
13. LIMITATION OF LIABILITY
13.1. Limitation of Liability.
Except for
Except for
(a) damages arising from a breach of a party’s confidentiality obligations or
(b) a party’s indemnification obligations set forth in this Agreement, in no event will either party’s aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by customer in the 3 months preceding the incident giving rise to the liability. The foregoing will not limit customer’s payment obligations under this Agreement.
(b) a party’s indemnification obligations set forth in this Agreement, in no event will either party’s aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by customer in the 3 months preceding the incident giving rise to the liability. The foregoing will not limit customer’s payment obligations under this Agreement.
13.2. Exclusion of Consequential and Related Damages.
In no event will either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing will not apply
In no event will either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing will not apply
(a) to a breach of confidentiality obligations or
(b) to the extent prohibited by applicable law.
(b) to the extent prohibited by applicable law.
14. TERM AND TERMINATION
14.1. Term of Agreement.
This Agreement commences on the Effective Date and will remain in effect until the earlier of:
This Agreement commences on the Effective Date and will remain in effect until the earlier of:
(a) the expiration or termination of all Order Forms under this Agreement; or
(b) the termination of this Agreement in accordance with this Clause. Upon termination of this Agreement for any reason, all rights granted to you will immediately terminate and you will cease using the Services. For avoidance of doubt, upon termination, the Services provided shall cease and you shall stop using such Services.
(b) the termination of this Agreement in accordance with this Clause. Upon termination of this Agreement for any reason, all rights granted to you will immediately terminate and you will cease using the Services. For avoidance of doubt, upon termination, the Services provided shall cease and you shall stop using such Services.
14.2. Automatic Renewal.
Subscriptions for the Platform commence on the Order Date specified in the applicable Order Form and continue for the Term unless otherwise terminated. Except as otherwise specified or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one year (each a Renewal Term) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
Subscriptions for the Platform commence on the Order Date specified in the applicable Order Form and continue for the Term unless otherwise terminated. Except as otherwise specified or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one year (each a Renewal Term) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
14.3. Termination for Cause.
A Party may terminate this Agreement or any applicable Order Form:
A Party may terminate this Agreement or any applicable Order Form:
(a) on 30 days written notice to the other party;
(b) upon 7 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period,
(c) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(b) upon 7 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period,
(c) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.4. Survival.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
14.5. Payment upon Termination.
Upon any termination by you. In no event will any termination relieve you of the obligation to pay any Fees payable to us for the period prior to the effective date of termination.
Upon any termination by you. In no event will any termination relieve you of the obligation to pay any Fees payable to us for the period prior to the effective date of termination.
14.6. Downloading of Customer Data.
During the Term and for the period of 30 days after the end date of the Term, you may download Customer Data, in comma separated value (.csv) format, using the tools of the Platform. After expiration of the 30-day period, we will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in our systems or otherwise in our possession or under our control.
During the Term and for the period of 30 days after the end date of the Term, you may download Customer Data, in comma separated value (.csv) format, using the tools of the Platform. After expiration of the 30-day period, we will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in our systems or otherwise in our possession or under our control.
15. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES
15.1. Dispute Resolution, Governing Law.
The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. This Agreement is governed and construed by the laws of New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, and courts of appeal from them.
The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. This Agreement is governed and construed by the laws of New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, and courts of appeal from them.
15.2. Notices.
Any notices to be given under this Agreement must be in writing and signed for and on behalf of the party giving the notice. A notice under this Agreement is only effective if it is given:
Any notices to be given under this Agreement must be in writing and signed for and on behalf of the party giving the notice. A notice under this Agreement is only effective if it is given:
(a) by hand; or
(b) by prepaid mail; or
(c) by email.
(b) by prepaid mail; or
(c) by email.
to the address of the Party specified on page 1 of this Agreement or otherwise specified in writing in accordance with this clause.
15.3. Receipt of Notices.
A notice sent for the purposes of this clause will be considered received:
A notice sent for the purposes of this clause will be considered received:
(a) if delivered by hand, before 5.00 pm, on that Business Day;
(b) if sent by pre-paid mail, on the third Business Day after posting; or
(c) if emailed, at the time when the email is sent to the addressee at an email address designated by the addressee;
(b) if sent by pre-paid mail, on the third Business Day after posting; or
(c) if emailed, at the time when the email is sent to the addressee at an email address designated by the addressee;
except that a delivery by hand, mail or email received after 5:00pm (local time of the receiving Party) will be deemed to be given on the next Business Day.
16. CONSUMERS RIGHTS AND REMEDIES
16.1. None of the provisions under this Agreement is to be construed to exclude, restrict or limit any rights a customer has under ACL. The rights and remedies under clause 17 are available to you if the Services you acquire from us is for the value of $40,000 or less.
16.2. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract
16.3. To make a consumer claim for warranties against defects, please contact us:
16.4. To the fullest extent permitted by law, our liability for failure to comply with any statutory obligations is limited to, at our sole discretion:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(b) the payment of the cost of having the services supplied again.
17. GENERAL PROVISIONS
17.1. No Dependence on Future Functionality.
You agree that you are not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in an Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specified in an Order Form.
You agree that you are not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in an Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specified in an Order Form.
17.2. Force Majeure.
Neither Party will be in default for failing to perform any obligation, if the failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labour disputes or governmental demands or restrictions.
Neither Party will be in default for failing to perform any obligation, if the failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labour disputes or governmental demands or restrictions.
17.3. Relationship of the Parties.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
17.4. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
17.5. Waiver and Cumulative Remedies.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
17.6. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
17.7. Assignment.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties.
17.8. General.
(a) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
(b) No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail.
(c) Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
(d) This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic execution and transmission), shall be deemed an original, and both of which shall constitute one and the same agreement the Parties agree to the terms and conditions of this Agreement by their signature on the Order Form.
(b) No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail.
(c) Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
(d) This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic execution and transmission), shall be deemed an original, and both of which shall constitute one and the same agreement the Parties agree to the terms and conditions of this Agreement by their signature on the Order Form.
18. DEFINITIONS
Capitalised terms shall have the meanings provided in this Clause or as specified in the body of the Agreement.
ACL or Australian Consumer Law means the Australian Consumer Law set out in Schedule 2, Competition and Consumer Act 2010 (Cth).
Agreement means these Terms of Service, and unless the context requires otherwise, includes all applicable Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of Dentalprener include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under this Agreement or any Order Form, addendum, exhibit, attachment or any amendment.
Customer Data means all electronic data or information submitted by a Customer to the Platform.
Disabling Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Documentation means any proprietary information or documentation made available to a Customer by Dentalprenr for use with the Platform, including any documentation available online through the Platform dashboard or otherwise.
Order Form means each Dentalprenr ordering document signed by the Customer which references this Agreement, identifies the Services ordered by a Customer from Dentalprener, sets forth the prices for the Services, and contains other applicable information terms and conditions.
Platform means, collectively, the online Software Suite provided by Dentalprenr and ordered by a Customer pursuant to this Agreement and as specified in one or more Order Form(s).
Services means, collectively, the provision of the Platform and any configuration, training and other services as may be described in an Order Form. In relation to the items outlined in Schedule 1.
Term means the time period for the provision of the Services, as specified in an Order Form.
Schedule 1
Features of the Dentalprenr Software Suite:
- CRM (Customer Relationship Management)
- Sales pipeline management
- 2-ways text messaging
- 2-way email
- 2-way phone calls along with call recordings
- Google and Facebook review integration
- Facebook messenger integration
- Website chat widget
Inclusions
telephony and emails:
telephony and emails:
- 2,000 call minutes per month
- 2,000 call recording minutes per month
- 2,000 text messages per month
- 10,000 emails per month
Overage rates are charged as follows:
- Calls – $0.0555 per minute
- Call Recordings – $$0.0038 per minute
- Text Messages – $0.0374 per text
- Emails –Â $0.00149 per email
© Copyright 2022 Dentalprenr.
1. Agreement:
2. Acceptance:
You accept this Agreement by clicking or ticking a box indicating your acceptance on the Site or otherwise advising us that you wish to use the Services
3. AUTHORITY:
If you are agreeing to this Agreement on behalf of a company, your employer, an organisation, or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to the terms of this Agreement. If you are accepting this Agreement on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
4. LICENCE OF USER:
4.1. We will provide access to the Platform and provide the Services to the best of our abilities, however:
- Access to the Platform may be prevented by issues outside of our control; and
- We accept no responsibility for ensuring ongoing access to the Platform.
- We grant you a limited, non-exclusive and revocable licence to access and use the Platform for the duration of this Agreement, in accordance with the terms and conditions of this Agreement and any applicable Order Form.
- We may revoke or suspend your licence if you breach any the term in this Agreement.
4.3. We grant you a limited, non-exclusive and revocable licence to access and use the Platform for the duration of this Agreement, in accordance with the terms and conditions of this Agreement and any applicable Order Form.
4.2. We grant you a limited, non-exclusive and revocable licence to access and use the Platform for the duration of this Agreement, in accordance with the terms and conditions of this Agreement and any applicable Order Form
5. ACCEPTABLE USE:
5.1. You agree not to, and not to allow third parties, to use the Services:
- to breach, or encourage the breach of, the legal rights of others;
- for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
- to interfere with the use of the Platform, or the equipment used to provide the Services, by customers,;
- to alter, disable, interfere with, circumvent or reverse-engineer any aspect of the Platform;
- to upload Customer Data without consent if such consent is required by applicable laws and regulations (you are solely responsible for ensuring compliance with all applicable laws and regulations in the relevant jurisdictions);
- do anything that leads, or may lead, to a decrease in the value of our intellectual property rights in the platform;
- use or exploit any of the material appearing on the platform for, or in connection with any business or enterprise that is in competition with us.
5.2. Your failure to comply with this clause may result in suspension or termination, or both, of the Services pursuant to this Agreement.
6. RESPONSIBILITIES AND RESTRICTIONS:
6.1. Dentalprner Responsibilities.
We will provide the Platform to you during the Term in accordance with this Agreement.
Use of Services.
You may only use the Services in the regular course of your business, and not for resale, distribution, leasing, rental, loaning, sales, sublicensing, distribution or otherwise transfer of your use of the Services. Your use of the Services cannot be transferred to an unauthorised third party.
6.2. Customer Responsibilities.
- be solely responsible for all activity, which must be in accordance with this Agreement;
- be solely responsible for Customer Data (other than with respect to our obligations set forth in the Agreement);
- obtain and maintain all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content you will use in connection with the Services;
- use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify us promptly of any known unauthorized access or use; and
- use the Services only in accordance with applicable laws and regulations, including privacy laws, and anti-SPAM laws in the relevant jurisdiction.
6.3. Restrictions
You will not
- use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation,
- interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein, or
- disrupt, disable, translate, decompile, or reverse engineer the Services, or
- take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
7. PRIVACY:
7.1. We maintain a Privacy Policy in compliance with the provisions of the Privacy Act for data that we collect and store. The policy can be found here https://dentalprenr.com/privacy-policy/
7.2. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
8. FEES AND PAYMENT:
8.1. Fees, Invoicing and Payment.
We will invoice you in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due on the 1st of the calendar month in advance for that month. First month’s fees shall be pro-rated for the first month. You are responsible for providing us with complete, accurate and up to date billing and contact information.
Except as otherwise specified or in an Order Form
- Fees will be quoted and paid in United States Dollars (USD); and
- payment obligations are non-cancellable, and Fees paid are non-refundable
8.2. Overdue Fees.
If payment is not received from you by the due date, then at our discretion, we may charge interest at the rate of 1.5% of the outstanding balance per month from the date such payment was due until the date paid.
8.3. Suspension of Services.
Except with respect to any Fees disputed in good faith by you, if any Fees are thirty (30) or more days overdue, we may, without limiting our other rights and remedies, suspend the provision of Services and your use of the Platform until we are paid in full.
8.4. Payment Disputes.
If an invoiced amount is disputed in good faith by you, you must notify us in writing and provide sufficient details of the invoice dispute within ten (10) business days of your receipt of invoice. If you fail to do so, you are deemed to have waived your right to dispute that invoice and the invoice will be deemed payable. Nothing in this Clause shall be deemed to waive your obligation to pay any undisputed amounts in accordance with Clause 8.1
8.5. Taxes.
The Fees are exclusive of all Goods and Services taxes, levies, duties or similar governmental assessments of any nature (collectively, Taxes). You are responsible for paying all Taxes associated with your purchase except for those based on our net income, property, or employee withholdings. Taxes shall not be deducted from the payments to us, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, we receive and retain (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
8.6. Audit Rights.
We may to audit your compliance with this Agreement at any time during the Term. You must cooperate with any reasonable request by us in connection with any proposed audit. If we determine that you have allowed access to the Services other than as permitted under this Agreement or any Order Form and as a result additional Fees are owed to us, we will invoice you for the additional fees which will be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies we may have.
9. PROPRIETARY RIGHTS:
9.1. Dentalprner Ownership.
We may to audit your compliance with this Agreement at any time during the Term. You must cooperate with any reasonable request by us in connection with any proposed audit. If we determine that you have allowed access to the Services other than as permitted under this Agreement or any Order Form and as a result additional Fees are owed to us, we will invoice you for the additional fees which will be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies we may have.
9.2. Customer Ownership and Licenses.
We may to audit your compliance with this Agreement at any time during the Term. You must cooperate with any reasonable request by us in connection with any proposed audit. If we determine that you have allowed access to the Services other than as permitted under this Agreement or any Order Form and as a result additional Fees are owed to us, we will invoice you for the additional fees which will be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies we may have.
- all Customer Data and
- any information supplied to us by you (“Customer Materials”). You grant to us a non-exclusive, non-transferable, royalty free, non-sub-licensable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to you. No other rights or implied licenses in Customer Materials are granted to Dentalprner other than as expressly set forth herein.
10. CONFIDENTIALITY:
10.1. Definition of Confidential Information.,
Confidential Information means all confidential information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data; Dentalprner Confidential Information includes, but is not limited to, the Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that
- is or becomes generally known to the public without breach of any obligation owed to Discloser,
- was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser,
- Â is received from a third party without any obligation of confidentiality, or
- was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
10.2. Protection of Confidential Information.
Except as otherwise permitted in writing by Discloser, Recipient will
- use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and
- Â Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
10.3. Protection of Customer Data.
Without limiting the above, we will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except:
- in order to provide the Services,
- Â to prevent or address service or technical problems in connection with support matters, or
- Â as expressly permitted in writing by you,
we will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Clause 10.4.
10.4. Compelled Disclosure.
Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
11. WARRANTIES AND DISCLAIMERS:
11.1. Dentalprner Warranties.
We warrant that:
- the Platform will perform substantially in accordance with the Documentation made available
to you, - Â the functionality of the Platform will not be materially decreased during the Term; and
- Â the Services will be performed in a professional and workmanlike manner.
For any breach of the warranties, your exclusive remedy will be as provided in Clause 14.3. Notwithstanding the foregoing, if any Order Form has a Term of more than twelve (12) months, in the event we or any of our licensors materially change or cease providing a material aspect of the Services, we may effect such change or cessation following reasonable notice to you.
11.2. Mutual Warranties.
Each Party represents and warrants that
- it has the legal power to enter into this Agreement,
- Â it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and
- Â it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement
11.3. Disclaimers.
Except as expressly provided herein we make no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaim all implied warranties, including but not limited to any warranties of merchantability, non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law.
12. INDEMNIFICATION:
12.1. Indemnification by Customer.
You will defend and indemnify us against any Claim made or brought against us by a third party
- relating to or arising from your use, or your authorised Users’ use of the Services in breach of this Agreement,
- Â relating to or arising from our permitted use of Customer Data or Customer Materials, including a third party alleging that the Customer Data or Customer Materials infringes or misappropriates the intellectual property rights of a third party;
- Â relating to an injury, illness or death;
- Â relating to damage to property; or
- Â caused by your actual or alleged breach of this Agreement, laws, including penalty imposed by a competent authority.
12.2. Exclusive Remedy.
This Clause 12 is the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Clause.
13. LIMITATION OF LIABILITY:
13.1. Limitation of Liability.
Except for
- damages arising from a breach of a party’s confidentiality obligations or
- a party’s indemnification obligations set forth in this Agreement, in no event will either party’s aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by customer in the 3 months preceding the incident giving rise to the liability. The foregoing will not limit customer’s payment obligations under this Agreement.
13.2. Exclusion of Consequential and Related Damages.
In no event will either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing will not apply
- to a breach of confidentiality obligations or
- Â to the extent prohibited by applicable law.
14. TERM AND TERMINATION:
14.1. Term of Agreement.
This Agreement commences on the Effective Date and will remain in effect until the earlier of:
- the expiration or termination of all Order Forms under this Agreement; or
- Â the termination of this Agreement in accordance with this Clause. Upon termination of this Agreement for any reason, all rights granted to you will immediately terminate and you will cease using the Services. For avoidance of doubt, upon termination, the Services provided shall cease and you shall stop using such Services.
14.2. Automatic Renewal.
Subscriptions for the Platform commence on the Order Date specified in the applicable Order Form and continue for the Term unless otherwise terminated. Except as otherwise specified or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one year (each a Renewal Term) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
14.3. Termination for Cause.
A Party may terminate this Agreement or any applicable Order Form:
- on 30 days written notice to the other party;
-  upon 7 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period,
- Â immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.4. Survival.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
14.5. Payment upon Termination.
Upon any termination by you. In no event will any termination relieve you of the obligation to pay any Fees payable to us for the period prior to the effective date of termination.
14.6. Downloading of Customer Data.
During the Term and for the period of 30 days after termination or expiration of the Term, you may download Customer Data, in comma separated value (.csv) format, using the tools of the Platform. After expiration of the 30-day period, we will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in our systems or otherwise in our possession or under our control.
15. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES:
15.1. Dispute Resolution, Governing Law.
The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. This Agreement is governed and construed by the laws of New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, and courts of appeal from them.
15.2. Notices.
Any notices to be given under this Agreement must be in writing and signed for and on behalf of the party giving the notice. A notice under this Agreement is only effective if it is given:
- by hand; or
- Â by prepaid mail; or
- Â by email.
to the address of the Party specified on page 1 of this Agreement or otherwise specified in writing in accordance with this clause.
15.3. Receipt of Notices.
A notice sent for the purposes of this clause will be considered received:
- if delivered by hand, before 5.00 pm, on that Business Day;
- Â if sent by pre-paid mail, on the third Business Day after posting; or
- Â if emailed, at the time when the email is sent to the addressee at an email address designated by the addressee;
except that a delivery by hand, mail or email received after 5:00pm (local time of the receiving Party) will be deemed to be given on the next Business Day.
16. CONSUMERS RIGHTS AND REMEDIES:
16.1. None of the provisions under this Agreement is to be construed to exclude, restrict or limit any rights a customer has under ACL. The rights and remedies under this clause 17 are available to the you if the Services you acquire from us is for the value of $40,000 or less.
16.2. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- Â to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract
16.3. To make a consumer claim for warranties against defects, please contact us:
16.4. To the fullest extent permitted by law, our liability for failure to comply with any statutory obligations is limited to, at our sole discretion:
- the supplying of the services again; or
- Â the payment of the cost of having the services supplied again.
17. GENERAL PROVISIONS:
17.1. No Dependence on Future Functionality.
You agree that you are not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in an Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specified in an Order Form.
17.2. Force Majeure.
Neither Party will be in default for failing to perform any obligation, if the failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labour disputes or governmental demands or restrictions.
17.3. Relationship of the Parties.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
17.4. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
17.5. Waiver and Cumulative Remedies.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
17.6. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
17.7. Assignment.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties.
17.8. General.
- This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
- Â No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail.
- Â Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
- Â This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic execution and transmission), shall be deemed an original, and both of which shall constitute one and the same agreement the Parties agree to the terms and conditions of this Agreement by their signature on the Order Form.
18. DEFINITIONS:
Capitalised terms shall have the meanings provided in this Clause or as specified in the body of the Agreement.
ACL or Australian Consumer Law means the Australian Consumer Law set out in Schedule 2, Competition and Consumer Act 2010 (Cth).
Agreement means these Terms of Service, and unless the context requires otherwise, includes all applicable Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of Dentalprner include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under this Agreement or any Order Form, addendum, exhibit, attachment or any amendment.
Customer Data means all electronic data or information submitted by a Customer to the Platform.
Disabling Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Documentation means any proprietary information or documentation made available to a Customer by Dentalprner for use with the Platform, including any documentation available online through the Platform dashboard or otherwise.
Order Form means each Dentalprner ordering document signed by the Customer which references this Agreement, identifies the Services ordered by a Customer from Dentalprner, sets forth the prices for the Services, and contains other applicable information terms and conditions.
Platform means, collectively, the online Software Suite provided by Dentalprner and ordered by a Customer pursuant to this Agreement and as specified in one or more Order Form(s).
Services means, collectively, the provision of the Platform and any configuration, training and other services as may be described in an Order Form. In relation to the items outlined in Schedule 1.
Term means the time period for the provision of the Services, as specified in an Order Form.