Terms of Service.

TERMS OF SERVICE
Wound Innovations Ltd (ABN 32 625 162 343) (WI)
These terms and conditions of service (Terms) will govern the supply of the Services by WI to the Customer to the exclusion of any other terms and conditions, and irrespective of whether the Customer provides a Service Request or its own terms and conditions as part of any order for Services. If the Customer does not agree to these Terms, it should notify WI immediately and not proceed unless a variation to these Terms is agreed between the Customer and WI in writing.

1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In these Terms, unless the context otherwise requires:
Agreement means an agreement to supply Services formed in accordance with clause 4.1, and includes those provisions or documents listed in clause 4.2.
Business Day means a day which is not a Saturday or Sunday or a public holiday in the place where a notice is to be received or a particular activity is to be performed.
Business Hours means 9AM to 5PM on a Business Day.
Consent means informed consent to perform an act, such consent being provided in writing or verbally to WI by:
(a) the patient; or
(b) a person legally authorized to make the relevant decision(s) on behalf of the patient.
Customer means a customer of the Services, as specified in an Offer of Services.
Fee Schedule means the schedule setting out standard fees and charges for supply of services, as set out at https://woundinnovations.com.au/ or as notified to the Customer in writing from time to time.
Fees means the fees payable to WI for performance of the Services, calculated in accordance with the Fee Schedule.
Ineligible Patient means any patient for whom, in the reasonable opinion of WI, it would be unsafe or impractical to supply, or to continue to supply, Services.
Letter of Engagement means (where applicable) a letter presented to the Customer by WI setting out background details under which the Customer may request specific Services, the Letter of Engagement forming part of the Agreement.
Offer has the meaning given in clause 3.1.
Personal Information has the meaning given to that term in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Services means the services to provided by WI pursuant to a confirmation that WI can provide the services made under clause 3.1.
Special Conditions means any special conditions set out in a Letter of Engagement.
1.2. Interpretation
In these Terms, unless the context otherwise requires:
(a) reference to a clause is a reference to a clause of these Terms;
(b) reference to a person includes reference to an individual, a body corporate, a joint venture, a trust, an agency or other body;
(c) words importing the singular will include the plural (and vice versa) and words denoting a given gender will include all other genders;
(d) headings are for convenience only and will not affect interpretation of the Agreement;
(e) the words “includes” an grammatical variants therefore ” are not words of limitation;
(f) a provision of will not be interpreted against a party just because that party prepared the provision;
(g) all monetary amounts will be deemed to be in Australian currency; and
(h) references to any legislation or to any provision of any legislation will include any modification or re-enactment of such legislation or any legislative provision substituted for and all legislation and statutory instruments issued under such legislation.

2. REQUESTS FOR SPECIFIC SERVICES
A Customer may request specific services from WI by supplying WI the following information:
(a) the identity and location of the patient for whom services are sought;
(b) injuries, illnesses and background conditions relevant to the patient;
(c) the nature of the services sought, including whether clinical, inhouse or telehealth Services are sought; and
(d) other matters relating to the services sought by Wound Innovations.
2.2. Upon receiving a request for specific services, WI may seek further information and documentation clarifying matters relevant to the specific services sought.

3. CONFIRMING ABILITY TO PROVIDE SPECIFIC SERVICES
3.1. Where WI receives a request for specific services and is satisfied it has received all relevant information and documentation pursuant to clause 2, WI will notify the Customer either:
(a) of its inability to provide the specific services, or
(b) of its ability to provide the specific services, and such confirmation will constitute an offer to provide Services under these Terms (Offer).
3.2. Unless previously withdrawn, an Offer shall be open for acceptance during the period stated in the Offer or, if no period is stated, within 14 days after its date. WI may refuse to provide the Services based on an Offer if purportedly accepted thereafter.

4. FORMATION OF CONTRACT
4.1. Subject to clause 3.2, the Customer may accept an Offer by:
(a) notifying WI in writing, for example by instructing WI to proceed with performing the Services;
(b) issuing a purchase order to WI;
(c) paying WI the Fees or part thereof..
4.2. To the extent of any inconsistency between any of the provisions and documents forming the Agreement, the provisions or documents appearing first below will prevail over any that are lower-placed:
(a) Special Conditions (if any);
(b) these Terms;
(c) the Offer;
(d) the Letter of Engagement (if any); and
(e) any other documentation incorporated by reference into the Agreement.

5. PROVISION OF SERVICES
5.1. All Services will be as detailed in the Offer, which without limitation to clause 19.8 prevail over all other descriptions of the Services including any specification or enquiry of the Customer.
5.2. WI will provide the Services:
(a) with reasonable skill and care, and according to proper professional standards;
(b) in accordance with the reasonable instructions of the Customer;
(c) otherwise in accordance with applicable law and the terms of the Agreement.
5.3. Notwithstanding any other clause of the Agreement, WI shall not be required to enter a shared care arrangement with the Customer and no shared care arrangement will be accepted by WI.

6. PATIENT CONSENTS AND INELIGIBLE PATIENTS
6.1. The Customer acknowledges that, notwithstanding any other clause the Agreement, WI require the informed consent of the patient, or a person legally authorised to give consent on behalf of the patient (such consent provided either verbally or in writing), to:
(a) perform Services on the patient;
(b) share medical records of the patient, including with the Customer; or
(c) share Personal Information of the patient via unsecured means.
6.2. The Customer acknowledges that, notwithstanding any other clause the Agreement, WI is not required to perform Services on an Ineligible Patient.

7. APPOINTMENTS FOR THE PERFORMANCE OF SERVICES
7.1. Arranging for appointments
WI and the Customer will cooperate, acting reasonably to schedule appointments:
(a) in respect of clinical Services, at mutually beneficial times and locations during Business Hours; and
(b) in respect of telehealth Services, at mutually beneficial times, and using software applications as agreed, during Business Hours.
7.2. If WI personnel are unavailable for appointment
(a) If specified WI personnel are not available to fulfil an appointment for Services, WI will use its best endeavours to fulfil the appointment with alternative WI personnel.
(b) If WI cannot identify alternative WI personnel to fulfill the appointment under clause 7.2(a), WI and the Customer will cooperate, acting reasonably to reschedule the appointment to another mutually acceptable time during Business Hours.
(c) Without limitation to clause 16, WI will not be liable for any loss or damage the Customer may incur as a result of any rescheduling an appointment to provide Services under this clause 7.2.
7.3. If the Customer reschedules or cancels an appointment
(a) The Customer may request to cancel or reschedule an existing appointment for Services by providing more than 24 hours’ written notice, and WI will charge no fee for the cancelling or rescheduling of the appointment.
(b) Where the Customer:

(i) requests to cancel or reschedule an appointment for the performance of Services, made less than 24 hours prior to the scheduled appointment, or
(ii) fails to ensure that a patient is available and equipped to receive Services at an appointment for the performance of Services (such as by failure to comply with the requirements of clauses: 8.2, 8.3, or 9.1 as applicable),
WI may charge a fee equal to 100% of the Fee applicable to the relevant appointment (Missed Appointment Fee).
(c) WI may, at its sole discretion, waive a Missed Appointment Fee where it determines:
(i) that the applicable fee was incurred by the Customer due to circumstances beyond the foreseeable control of the Customer; or
(ii) that another patient of the Customer may receive services in place of the original patient, at the existing appointment.

8. DELIVERY OF CLINICAL SERVICES
8.1. Clinical Services will be delivered through appointments at times and locations as agreed between the Customer and WI pursuant to clause 7.
8.2. Where clinical Services are to be delivered at a residential aged care facility, the Customer must:
(a) ensure, as directed by WI, either or both that:
(i) the patient is in their bed in their room at the allocated time with an enrolled nurse/registered nurse present; or
(ii) a staff member of the residential aged care facility, having appropriate health credentials, such as a medical practitioner, enrolled nurse/registered nurse, has provided a knowledge handover regarding the patient to the satisfaction of WI prior to WI’s appointment; and
(b) supply a dressing trolley with gloves, dressing tray, waste disposal (including access to a sharps container for instruments used), wound dressings/bandages and all usual supplies associated with a dressing procedure.
8.3. Where clinical Services are to be delivered at a patient’s place of residence that is not aged care facility (Home):
(a) the Customer must:
(i) either:
(A) ensure that a member of Customer personnel having health credentials as specified by WI from time to time acting reasonably (Customer Health Professional), is available to attend WI’s first appointment at the Home with WI personnel; or
(B) ensure that the Customer Health Professional has provided a knowledge handover regarding the patient to the satisfaction of WI prior to WI’s first appointment to the Home; and
(ii) forewarn WI where a likelihood exists the patient may engage in dangerous behaviour, or behaviour likely to affect the ability of WI to perform the Services; and
(iii) ensure the Home is safe for performance of the Services, including by taking account of any dangerous behaviour likely of the patient.
(b) Notwithstanding the Customer’s obligation under clause 8.3(a)(iii), WI personnel will assess the Home and the patient to determine whether it is safe to perform the Services. If the WI personnel determine that it is unsafe to perform the Services, WI will cease performing Services while it cooperates with the Customer to remove or alleviate those safety concerns. The Customer acknowledges that, for safety reasons, WI may require a representative from the Customer to attend the Home while WI performs any Services. The Customer shall be responsible for any costs incurred in removing or alleviating safety concerns under this clause 8.3(b).

9. DELIVERY OF TELEHEALTH SERVICES
9.1. Telehealth Services will be delivered through appointments at times and through software applications as agreed between the Customer and WI pursuant to clause 7.
9.2. The Customer acknowledges that telehealth Services can only be provided where the Customer or the patient (as the case may be):
(a) has access to an internet-connected computer or tablet with camera and microphone (not a mobile phone), supporting video-conferencing; and
(b) a general practitioner or an enrolled nurse/registered nurse (Health Professional) is present with the patient for the telehealth consultation.
9.3. The Customer acknowledges, and must ensure the patient understands, that WI does not provide any physical wound treatment or any dressings or other medical supplies as part of its telehealth-based Services. Physical wound treatment must be performed by the Customer or the patient’s Health Professional, and with medical supplies sourced by the Customer or the patient, in accordance with WI directions.

10. INVOICING AND PAYMENT
10.1. In consideration for WI performing the Services, the Customer must pay WI the Fee.
10.2. All fees and expenses validly invoiced to the Customer under the Agreement (including any Fees) are to be paid by the Customer within 21 days of receiving such invoice.
10.3. Unless otherwise stated in the Offer of Services or the Fee Schedule (as the case may be), the Fees are exclusive of:
(a) Australian goods and services tax (GST). If GST is payable by WI on any supply made to the Customer under or in connection with the Agreement, the amount otherwise payable by the Customer for that supply will be increased by the GST payable. WI will provide a tax invoice for any taxable supplies made to the Customer; and
(b) any additional or exceptional expenses such as travel and accommodation costs, car parking, subsistence, and couriers (Additional Expenses) which will be charged to the Customer at cost. WI will seek the Customer’s prior approval to any Additional Expenses in excess of $100.
10.4. WI may require the Customer to pay additional charges in respect of costs incurred by WI as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by WI in order for it to provide the Services within the specified timeframe (if any).
10.5. Any payments which are required to be paid under the Agreement will be paid in Australian dollars.
10.6. If payment is not made within 7 days of the due date of payment under clause 10.2, WI may require the Customer to pay WI interest at a rate not exceeding the Commonwealth Bank’s ‘Corporate Overdraft Reference Rate’ on any amount outstanding until paid in full. All costs and expenses associated with collecting overdue amounts, including without limitation legal fees and internal costs and expenses of WI, are to be paid by the Customer as a debt due and payable under the applicable Agreement.
10.7. If at any time the Customer is in default of its payment obligations under the Agreement, WI will be entitled to suspend performance of the Services until such time as the default has been remedied and may also require that the Customer pay an amount in advance on account of Fees and Expenses to be incurred as a condition of resuming performance of the Services (and without limitation to WI’s other rights and remedies).

11. AMENDMENT OF FEE SCHEDULE
11.1. WI may vary its standard fees and charges as set out in its Fee Schedule at its discretion by providing the Customer written notice.
11.2. Amendments made by WI to its Fee Schedule pursuant to clause 11.1 will apply to existing Agreements on 30 days’ written notice (Price Variation Notice Period).
11.3. If the Customer does not agree to amendment of the Fee Schedule, it may terminate the Agreement with WI by providing WI written notice at any time during the Price Variation Notice Period.

12. INTELLECTUAL PROPERTY
12.1. All intellectual property arising out of performance of Services (including any intellectual property subsisting in patient medical records), will vest in WI upon creation. WI grants the Customer a non-exclusive, royalty-free, licence to use such intellectual property for the purposes of receiving the Services.
12.2. Nothing in the Agreement will affect the ownership of any pre-existing intellectual property of WI or the Customer. WI grants to the Customer a non-exclusive, royalty-free, licence to use the pre-existing intellectual property of WI, solely to the extent necessary for the Customer to receive the Services. The Customer grants to WI a non-exclusive, royalty-free licence to use the pre-existing intellectual property of the Customer to enable WI to perform the Services. Each party warrants that it is the owner of its pre-existing intellectual property made available under the Agreement and has the right to grant the licences in accordance with this clause 12.2.
12.3. Each party agrees to perform all acts and execute all documents necessary to establish such rights.

13. CONFIDENTIALITY
13.1. Subject to clause 15, each party must treat any information it receives from the other party that is by its nature confidential, is designated as confidential by the disclosing party, or which the recipient party knows or ought to know is confidential, as confidential and must not, without the prior written consent of the disclosing party, disclose or divulge the confidential information to any third party nor use it for any purpose other than the performance of the Services.
13.2. The obligations of confidentiality do not apply to any information which:
(a) was known to the recipient party before its receipt from the disclosing party;
(b) is lawfully in the public domain other than by reason of unauthorised disclosure by the recipient party;
(c) must be disclosed by law or to any regulatory body; or
(d) can be reasonably shown to have been rightfully known or developed by the recipient party independently of the disclosing party.
13.3. The obligations of confidence will continue until the confidential information enters the public domain (other than by a breach by the recipient party of its obligation of confidence).

14. PERSONAL INFORMATION
14.1. The Customer warrants to WI that:

(a) any Personal Information that Customer discloses to WI under the Agreement has been collected and disclosed in accordance with the Privacy Act and that the Customer has duly notified and obtained any necessary consents from the individuals whose Personal Information is being disclosed to provide that Personal Information to WI; and
(b) WI is authorised to use any such Personal Information for the purposes of performing the Services and use de-identified Personal Information for research purposes.
14.2. The Customer’s obligations under this clause 14 are in addition to, and do not restrict, any obligations the Customer may have under the Privacy Act and that would apply to the Customer but for the application of this clause 14.

15. INADEQUATE CARE
Each party recognizes the ethical and legal responsibility of WI and its personnel to address apparent circumstances of poor or inadequate patient care including, where appropriate or required, by notifying relevant authorities of such circumstances.

16. TERMINATION
16.1. Either party may terminate the Agreement for convenience by giving no less than 30 days’ written notice to the other party.
16.2. A party may immediately terminate the Agreement upon written notice if:
(a) where the party is the Customer, the circumstances set out in clause 11.3 apply;
(b) if the other party commits an act of bankruptcy or enters into voluntary or involuntary liquidation or any similar or equivalent action is taken with respect to the other party; or
(c) the other party is in breach of the Agreement:
(i) where the breach is incapable of remedy, immediately; and
(ii) where the breach is capable of remedy and the other party fails provide such remedy within 7 days of notice requiring it to do so.
16.3. Termination is without prejudice to the continuing enforceability of any rights or obligations of the parties accrued at the time of the termination and to any rights and obligations that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of the Agreement.
16.4. If this Agreement is terminated the Customer will immediately pay WI all Fees and expenses relating to the Services provided up to and including the date of termination.

17. LIABILITY
17.1. Nothing in the Agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth) and which by law cannot be excluded, restricted or modified.
17.2. The Customer expressly agrees that use of the Services is at the Customer’s risk.
17.3. Subject to the foregoing and to the extent permitted by law:
(a) all guarantees, conditions and warranties, express or implied, by law, custom or otherwise (including without limitation, as to merchantability, description, quality, suitability or fitness of the Service, and the pre-existing intellectual property of WI for any purpose) are excluded;
(b) WI’s liability for any loss arising from a breach of such guarantees, conditions and warranties, or of this Agreement, is limited at WI’s option to:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
17.4. To the full extent permitted by law, WI will not be liable for, and the Customer hereby releases WI from, any claim, action or liability for any special, indirect or consequential loss or damage (including without limitation, loss of profits or loss of revenues) or for any claims of third parties, including Customer’s customers, whether arising by reason of delays, negligence, or any act or omission by WI, its employees or agents in any way connected with or arising out of the supply or use of the Services.

18. NATURE OF SERVICES
18.1. The Customer agrees that the provision of the Services by WI is on a non-exclusive basis and in no way restricts or prevents WI from providing services similar to the Services to any third party now or in the future.
18.2. WI may subcontract the performance of the Services (or any part) to a third party, provided that WI will remain at all times liable to the Customer for the performance of WI’s obligations under the Agreement.

19. DISPUTE RESOLUTION
19.1. The parties agree to co-operate and to use all reasonable endeavours to resolve any disputes or differences between them (Dispute) by negotiation.
19.2. If the Dispute has not been resolved by negotiation within 30 days then, as a condition precedent to initiating proceedings in a court to resolve the Dispute, a party will refer the Dispute to the Australian Disputes Centre Limited (ADC) for mediation in accordance with the ADC Guidelines for Commercial Mediation (or such other equivalent rules as are implemented by ADC from time to time), to be heard by one mediator appointed under the rules in the Jurisdiction with the proceedings being in English.
19.3. If the Dispute has not been resolved within 60 days of referral to mediation, then a party is free to initiate proceedings in a court.
19.4. Nothing in this clause 18 will prevent a party from seeking interlocutory relief through courts in the State of Queensland, Australia.

20. GENERAL
20.1. Notices
(a) Subject to clause 19.1(b), any notice, demand or other communication required to be given or made in writing under the Agreement may be served on a party at its address set out in the Offer of Services by hand, prepaid post or email.
(b) A party may change its nominated contact person, address or email address for the purposes of the Agreement by giving notice of such change to the other party within 7 days of the change.
(c) Any notice or other communication will be deemed to have been received by the party to which it was sent:
(i) in the case of hand delivery, upon the date of such delivery;
(ii) in the case of prepaid post within Australia, on the second Business Day after the date of posting; or
(iii) in the case of email transmission, on delivery of a read receipt from the receiver or, if no read receipt is delivered, one day after the notice has been sent by email, and the sender will keep a record of the notice and the date on which it was sent,
unless in any such case it would be deemed to have been received on a day which is not a Business Day or after 5 p.m. on such a Business Day, in which event it will be deemed to have been received on the next such Business Day.
20.2. Governing law
The Agreement is governed by the laws of the State of Queensland, Australia and each party submits to the courts of that state and its courts of appeal.
20.3. Relationship
Except where the Agreement expressly states otherwise, each party enters the Agreement as an independent contractor and nothing will create any other relationship between them, including any relationship of partnership, agency, trust, joint venture or otherwise. The duties, obligations and liabilities of the parties will in every case be several and not joint nor joint and several.
20.4. Severance
A term or part of a term of the Agreement that is illegal or unenforceable may be severed from the Agreement and the remaining terms or parts of the term of the Agreement will continue in force.
20.5. Waiver
Any failure or delay by a party to compel performance by the other party of any of the terms and conditions of the Agreement will not constitute a waiver of those terms or conditions, nor will it affect or impair the right of the first-mentioned party to enforce them at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
20.6. Amendment
The Agreement may only be amended by a written instrument signed by the parties.
20.7. Approvals and consents
Except where the Agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under the Agreement.
20.8. Entire agreement
The Agreement contains the whole of the agreement between the parties with respect to its subject matter and supersedes any and all other representations or statements by a party whether oral or in writing and whether made prior or subsequent to the date of this Agreement.
20.9. Force majeure
No Party will be liable for any failure to carry out its obligations under the Agreement (other than a failure to pay money) where such failure is due to any cause beyond the reasonable control of that Party (Force Majeure Event). Where a Force Majeure Event continues for a period of 90 days, the Parties must consult with a view to reaching an agreement on whether or not this Agreement should continue and, if so, with what modifications to take into account the Force Majeure Event. Failing agreement within a reasonable time, the Agreement will terminate upon the written notice of a Party.
20.10. No assignment
No Party may assign or attempt to assign or otherwise transfer or encumber any right or obligation arising out of the Agreement except with the written consent of the other Party.
20.11. Subcontracting
Except where this Agreement expressly states otherwise, a Party will not subcontract the performance of its obligations under the Agreement except with the written consent of the other Party.
20.12. Warranty of authority

Each Party represents and warrants to the other Party that:
(a) it has full power and authority to enter into and to perform the Agreement;
(b) such execution and performance does not contravene any contractual, legal or other obligations of that party of any nature whatsoever;
(c) the person(s) executing this Agreement on behalf of the Party are duly authorised to do so; and
(d) the Agreement constitutes a legal, valid and binding obligation on that party.
20.13. Further acts
A party, at its own expense and within a reasonable time of being requested by the other Party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement and the transactions contemplated by it.
20.14. No authority
Except where the Agreement expressly states otherwise, no party may enter into any agreement or incur any liability on behalf of the other party without that other party’s prior written consent and may not represent to any person that it has any authority to do so.
20.15. No merger
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by the Agreement.