Terms

Terms and conditions

eReports Terms and Conditions

Parties

  • eReports
  • Client
  • Consultant

Background

  • eReports provides expert opinions and independent healthcare advice including medical reports.
  • The parties agree that eReports will organise the Services as ordered by the Client, and the Client will pay for such Services in accordance with these terms and conditions.
  • Consultants transact with eReports according to the terms and conditions detailed in the eReports Specialist Agreement.

Operative clauses

TERM

These terms and conditions:

  1. Subject to clause 2, commence on the date of the initial request
  2. Survive the delivery of the service by eReports
  3. Applies to all Service Bookings and requests given by the Client to eReports.

CONDITIONS PRECEDENT

  • Using eReports is subject to and conditional upon eReports determining in the affirmative Client’s creditworthiness with respect to the Services.
  • Each party must provide all reasonable assistance to the other as is necessary to satisfy the Conditions.
  • The Conditions are for the benefit of eReports alone.
  • eReports may terminate a Client’s access on or before the Sunset Date if, after having made all reasonable inquiries, eReports reasonably concludes that any of the Conditions clause 2.1:
    1. Have not been satisfied; or
    2. Are incapable of being satisfied.

EREPORTS OBLIGATIONS

eReports will deliver services subject to these terms and conditions:

  1. Procure the carrying out of each booked Service during the Period; and
  2. In carrying out the Services:
    • Use their best skill, judgment and ability; and
    • Comply with the Law.

FEES

  • The Client must pay the Fees by the Payment Due Date.
  • If the Client fails to comply with clause 4.1, the Client must pay liquidated damages to eReports at a rate of 2% in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 compounding daily on the overdue amount until it is paid in full.

The parties agree that:

  1. Clause 4.2 is not a penalty and is a genuine pre-estimate of the loss likely to be suffered by the party receiving the liquidated damages for the Obligation; and
  2. If a court of competent jurisdiction determines that (contrary to the intention of the parties) any liquidated damages constitute a penalty, those liquidated damages will be reduced to such amounts as the court considers not to constitute a penalty.

Any amount payable by a Client for Services supplied by eReports must be paid:

  1. Into such account; and
  2. In such a manner,
    • As directed by eReports from time to time at eReports’ discretion.

SERVICE BOOKINGS

Client must:

  1. When making Service Bookings, do so in such a manner and form as eReports directs from time to time; and
  2. ensure that each Service Booking contains all such information as eReports requires from time to time.
  • Each Service Booking by the Client is an offer to purchase Services from eReports under these published terms and conditions.
  • No Service Booking is binding until eReports agrees in writing to supply the Service Booking.
  • eReports may reject a Service Booking at its absolute discretion.
  • eReports does not represent or warrant that it is able to supply any quantity of any Service at any time.
  • A quotation given by eReports to the Client does not constitute a binding agreement to supply.
  • Unless otherwise agreed, eReports must procure the relevant Report to be delivered to the Client on the Report Due Date.

Notwithstanding anything stated in these terms and conditions, eReports is not obliged to perform a Service unless and until eReports has received:

  1. A copy of the relevant eReports-designated consent form properly executed by the Examinee; and
  2. Any other requested Material relevant to the Examinee.

CANCELLATION/NON-ATTENDANCE

  • The Client may cancel a Service Booking by notice to eReports.
  • If a notice under clause 6.1 is received by eReports later than the Latest Cancellation Date, the Client must pay a Cancellation Fee unless EVALU8 Cancellation Emergency cover applies.
  • Subject to clauses 6.1 and 6.2, if a booked Examinee does not attend a booked Service Attendance, the Client must pay a Non-Attendance Fee unless the booking is a WAIVE appointment.
  • The Client must pay any amounts payable under clause 6.2 or 6.3 within 14 days after receipt of an invoice in respect of same unless other payment terms are agreed.
  • The Client must procure delivery of all Examinee Material to eReports within the time directed by eReports.

If the Client breaches clause 6.5:

  1. eReports may cancel the proposed Service Attendance; and/or
  2. The Client is liable to pay a Late Cancellation Fee.

INTELLECTUAL PROPERTY

The Client acknowledges that all IP Rights subsisting in any IP (including technology, business processes, Reports and Report Material) vest in and belong solely and exclusively to eReports or the relevant Consultant, such ownership to be determined by eReports.

The Client:

  1. Waives any and all rights that are incapable of assignment, including moral rights, in and to any IP;
  2. Must, upon request of eReports, grant a similar waiver in respect of any product of any IP; and
  3. Must sign all documents and do anything reasonably requested by eReports to effect any such waiver or protect eReports’ IP Rights.

Subject to payment in full by the Client of the relevant invoice, eReports grants the Client a limited, irrevocable, royalty-free, worldwide, license to use the Reports for the purposes reasonably contemplated by the instructions to eReports, taking into account the referral instruction given by the Client after booking a Service (if any).

RETENTION OF TITLE

The Client acknowledges that until the Client pays to eReports the whole of the Purchase Price:

  1. Client holds all Reports as eReports’ bailee;
  2. A fiduciary relationship exists between eReports and the Client in respect of such Reports; and
  3. Client must not Transfer or attempt to Transfer the Reports.

CONFIDENTIALITY

  • Each party understands and acknowledges that such party owes a duty of fidelity and a duty of confidentiality to the other party.

A party must:

  1. Not disclose or permit the disclosure of the other party’s Confidential Information to any third party without the other party’s prior written consent; and
  2. Use reasonable endeavours to ensure the Confidential Information is not disclosed to any third party.

SECURITY AND DATA PROTECTION

The Client must use best endeavours to maintain the secrecy and security of all identification and login information used to order Services.

Promptly:

  1. Comply with the Privacy Law with respect to Examinees and Reports; and
  2. Upon request provide all reasonable assistance to eReports with respect to matters of Privacy Law compliance.
  3. Promptly advise eReports of any applicable data breach.

TERMINATION

Without prejudice to any other right or remedy which a party may have at Law, a party (“First Party”) may immediately terminate any business relationship at any time if the other party (“Second Party”):

  1. Commits multiple or recurring breaches of the agreed terms of trading, whether remedied or not;
  2. Does not procure or cannot procure rectification of a breach of a non-Essential Term, within 14 days after receipt by the other party of a written notice reasonably specifying the breach;
  3. Ceases, or indicates that it is about to cease, carrying on its business; or
  4. Is the subject of an Insolvency Event.

Either party may terminate any applicable service by not less than seven days’ notice to the other party.

WARRANTIES

By trading with eReports, the Client warrants and continues to warrant that:

  1. They have the authority to make Service Bookings in respect of each Examinee;
  2. They have the financial capacity to pay for each booked Service;

If the Client is a trustee of any trust:

  1. The trust is validly constituted and subsisting;
  2. It trades with eReports in its own capacity and for and on behalf of and with the power and authority of each and every such trust of which it is a trustee;
  3. The terms of the relevant trust do not restrict eReports’ rights, including recourse to the assets of the Trust to satisfy any monies that may become owed; and
  4. There is no conflict of interest and duty of the trustee or its directors, which would preclude the Trustee from entering into an agreement to purchase services from eReports.
  • The person booking a service on behalf of the Client warrants that they are duly authorised to book this service on behalf of the Client.
  • The Client must immediately notify eReports of any change in its company name.
  • The Client gives eReports unconditional consent and authorisation to:
    1. Obtain Credit Information from a credit reporting agency; and
    2. Disclose Credit Information to a credit reporting agency,
      1. For the purpose of:
        • Deciding whether to provide or continue to provide credit to the Client; or
        • Attempting to recover any monies owed by the Client to eReports.

INDEMNITY, DISCLAIMER AND WAIVER

The Client acknowledges and agrees that:

  1. The information in a Report may include information provided to eReports from third parties including Consultants; and
  2. eReports does not and cannot guarantee or warrant the correctness, completeness, merchantability or fitness for a particular purpose of any Report.

The Client indemnifies eReports and its officers, employees, shareholders, agents and contractors against all Claims arising from:

  1. Any breach by the Client of the terms and conditions;
  2. Any wilful misconduct, or unlawful or fraudulent act or omission of the Client or Client’s Personnel in connection with booking an eReports service or Report;
  3. The use or misuse by the Client or its Personnel of any Report including any information obtained or derived through any Report;
  4. Reliance by the Client or any of the Client’s Personnel on including any information obtained or derived through any Report; and
  5. Any decision made by the Client or any of its Personnel using or in reliance upon any Report or any information obtained or derived through any Report.
  • eReports is not providing advice to the Client with respect to the Client’s obligations under or compliance with any Law with respect to Reports.
  • The Client should make their own decision in respect to the Client’s obligations under or compliance with any Law with respect to Reports.
  • The Client assumes all risk in connection with the Client’s use of Reports.
  • eReports is not liable to the Client for Damages relating to the correctness, completeness, merchantability or fitness for a particular purpose of any Report, except where caused by eReports’ negligence, wilful misconduct or fraudulent conduct.

A party (“First Party”) is not liable for any Claim brought by a third party against the other party (“Second Party”) in relation to a matter pertaining to eReports supplied services if:

  1. The Second Party does not notify the First Party of the third party’s claim or of infringement of copyright within seven days after becoming aware of such Claim;
  2. The First Party’s ability to defend the claim has been prejudiced by the Second Party’s non-compliance with any of its obligations under eReports’ Services;
  3. The Second Party does not give the First Party reasonable assistance in defending such Claim; or
  4. The Second Party does not permit the First Party to have control of the defence of the Claim and all related settlement negotiations.

Notwithstanding anything agreed to the contrary, a party is not liable to another party (“Other Party”) with respect to a Claim to the extent that the loss and damage to the subject of such Claim:

  1. Is caused or contributed to by the negligence or unlawful act of:
    • The relevant Examinee;
    • The Other Party (including Personnel); or
    • The Other Party’s Related Entity (including Personnel);
  2. Is a consequence of a direction or information given by the Other Party (including Personnel); or
  3. Comprises Consequential Loss.
  • Nothing in these terms and conditions excludes, restricts or modifies any condition, warranty, right or liability implied in these terms and conditions or protected by law to the extent that such exclusion, restriction or modification would render agreement for the provision of Services void, illegal or unenforceable.
  • Subject to clause 13.9, any condition, warranty, right or liability which would otherwise be implied by an agreement with eReports or protected by law is excluded.

Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):

  1. This clause 13.11 applies in respect of any of the goods or services supplied by eReports which are as they are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause 13.11 will not apply if a Party establishes that reliance on it would not be fair and reasonable;
  2. Liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by sections 51, 52 and 53 of that Law, is limited:

In the case of services, to any one of the following as determined by the Party having to provide the remedy:

  1. The supplying of the services again; or
  2. The payment of the cost of having the services supplied again.

FORCE MAJEURE

  • A party is not liable for any Damages caused by a Force Majeure Delay.
  • A Party’s performance of an Obligation is suspended for the period of any Force Majeure Delay.
  • If a party is the subject of a Force Majeure Delay, it must notify the other party of the reason and extent of the Force Majeure Delay within two Business Days.

GST

For the purpose of this clause:

  1. GST means GST within the meaning of the GST Act;
  2. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended); and
  3. Expressions set out in this clause bear the same meaning as those expressions in the GST Act.
  • To the extent that a party makes a taxable supply in connection with a Service supplied by eReports, except where express provision is made to the contrary, and subject to this clause, the consideration payable by a party for such Services represents the value of the taxable supply for which payment is to be made.
  • If a party makes a taxable supply in connection with a Service supplied by eReports for a consideration which, under clause 15.2, represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
  • A party’s right to payment under clause 15.3 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

NOTICES

Any notice given by one party to the other:

  1. Must be in written English and served:
    • Personally; or
    • By email,
    • To the other party’s usual address from time to time;
  1. If served personally, is deemed to be served on the date it is received by the other party; and
  2. If served by email, is deemed to be served at the time of receipt provided for by the Electronic Transactions Act 1999 (Cth).

MISCELLANEOUS

Each party must:

  1. At its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this document and all transactions incidental to it; and
  2. Refrain from doing anything that might hinder the performance of eReports’ delivery of Services.
  • Services delivered by eReports may be delivered in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.
  • These terms and conditions are binding on the parties on the exchange of counterparts.
  • eReports may vary any terms and conditions of trade at any time at its discretion.
  • The Client’s continued use of eReports after receiving notice under clause 17.6 constitutes acceptance of the relevant variation.
  • eReports may vary non-contracted pricing at any time at its discretion without notice to the Client.
  • Subject to clause 17.6, these terms and conditions not be changed or modified in any way without the specific agreement of eReports.
  • If any provision of these terms and conditions is invalid, unlawful, void or unenforceable it will be taken to have been severed without affecting any other of the provisions of these terms and conditions.
  • The Client’s rights, remedies, powers, duties or Obligations are not Transferrable except with the prior written consent of eReports.
  • eReports may Transfer all or any part of eReports’ rights (including rights to payment), remedies, powers, duties or Obligations for services booked by the Client to any person, without the Client’s consent.
  • The covenants, rights, entitlements, duties, warranties, conditions, provisions, undertakings, and obligations contained in these terms and conditions remain in full force and effect for all services delivered by eReports after completion of the delivery.
  • The rights, remedies and Obligations provided under these terms and conditions are cumulative and do not adversely affect any other rights, remedies or Obligations described or otherwise provided by Law.
  • These terms and conditions are governed by the Laws of Victoria.
  • The parties submit to the jurisdiction of the courts of Victoria.

DEFINED TERMS AND INTERPRETATION

In this document including the background, execution pages, any appendices and/or schedules, except where the context otherwise requires:

  1. The terms listed in the second column in 0 have the meaning set out in their respective adjacent cells in the third column of in 0;
  2. Another grammatical form of a defined word or expression has a corresponding meaning;
  3. The meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
  4. The singular includes the plural and vice versa, and a gender includes other genders;
  5. A reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this document, and a reference to this document includes any schedule or annexure;
  6. A reference to a time or date in the Jurisdiction;
  7. A reference to $ or dollar is to the Default Currency;
  8. A reference to a party is to a party to this document, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
  9. A reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority, agency or other entity;
  10. A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  11. A reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  12. A reference to writing includes all modes of representing or reproducing words in a legible, permanent and visible form;
  13. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
  14. A reference to anything includes any part of that thing and a reference to a group of things or persons includes each thing or person in that group;
  15. Any discretion (including where a party “may” do anything) is sole, unfettered and absolute unless otherwise stated; and
  16. Headings are for ease of reference only and do not affect interpretation.

The following terms have the following meanings:

Business Day means any day that is not a Saturday, Sunday or Public Holiday:

  • In the case of a notice, in the city that the party to be notified is situated;
  • In the case of an Obligation, in the city that the party obliged to perform such Obligation is situated; or
  • Otherwise, in the Jurisdiction.

Business Hours means between 9.00am to 5.00pm:

  • In the case of a notice, in the city that the party to be notified is situated; and
  • In the case of an Obligation, in the city that the party obliged to perform such Obligation is situated; or
  • Otherwise, in the Jurisdiction,

on a Business Day.

Claim means any claim, demand, Proceeding or cause of action of any nature whatsoever (including for Damages):

  • Whether in statute, contract, tort, warranty, strict liability, or any other legal theory or basis; and
  • Whether for money or otherwise,
  • Arising out of or in connection with a particular subject matter.

Confidential Information means information, in any form and whether original or Copy, which is confidential to a party including, but not limited to, information which a party becomes aware before or after the provision of any eReports Service:

  • Pertaining to this provision of such Service;
  • That has been specifically designated as confidential;
  • The unauthorised disclosure of which would embarrass, harm or prejudice the other party or its business;
  • Otherwise relating directly or indirectly to the other party’s Clients, business transactions, business methods, financial affairs, commercial activities, trade secrets, passwords, know-how, databases, Client lists, specifications, records and software; and
  • Pertaining to the other party’s IP, but, not including information that now or in the future is in the public domain other than due to a breach of these terms and conditions.

Consequential loss means direct or indirect loss of profit; revenue; expenses; income; business opportunity; goodwill production; indirect, incidental, exemplary, special or punitive damages; third party claims or any other indirect or consequential loss or liability in connection with or arising out of the provision of eReports’ services including those which would fall within the second limb of losses referred to in Hadley v Baxendale (1854).

Consultant means any third-party surgeon, doctor or other professional that contributes to a given Report.

Copy includes any copy, record, summary, memorandum or annotation.

Currency means Australian dollars.

Damages means all liabilities, losses, damages, costs and expenses (including all legal costs on a solicitor and own client basis) whether incurred by or awarded against a person and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties, arising out of a right under contained in these terms and conditions or a cause of action in connection with the operation of eReports (including any indemnity), including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.

Examinee means the individual that is the subject of a Service.

Examinee Material means true, complete and correct information and signed Consent Forms with respect to an Examinee or proposed Examinee as required by eReports or its consultants or requested by eReports from time to time.

Fee means the amount specified in an invoice for Services.

Force Majeure Delay means the period during which a party is unable to perform an Obligation due to an actual Force Majeure Event.

Force Majeure Event means any event beyond the reasonable control or prevention of the non-performing party including:

  • External telecommunications failures;
  • Fire, flood, earthquake or act of God and any other natural disaster;
  • Riot, act of terrorism, war, civil disorder, rebellion or revolution;
  • Strikes, lockouts and labour disputes (but excluding a facility-specific strike of any other type of industrial action by the Personnel of a party claiming force majeure); and
  • Epidemics, quarantine restrictions, outbreak of disease or any travel restrictions or bans (including bans on non-essential travel) issued by the World Health Organisation or any governmental authority.

Gazetted Fee means a fee for a Service as specified under the Law (if any).

Insolvency Event means any of the following under the Law including the Corporations Act 2001 or its equivalent in any jurisdiction:

  • Bankruptcy;
  • Insolvency or presumed insolvency;
  • Liquidation;
  • Administration;
  • Winding-up;
  • Failure to comply with a statutory demand;
  • Inability to pay debts; and
  • An analogous or equivalent event to the above,

Other than for the purposes of reconstruction or amalgamation.

IP means any novel or original work in any form resulting from intellectual activity in the industrial, commercial, scientific, medical, literary or artistic fields including discoveries, inventions, improvements, modifications, innovations, processes, software codes, formulae, artistic works and circuit layouts.

IP Rights means all present and future intellectual property rights of any nature whatsoever conferred by statute, common law, equity or otherwise including all intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967 whether registered or registrable.

Item means an Item in Schedule 1.

Latest Cancellation Date means 5:00 PM (Melbourne time) on the day being three Business Days before the date of the booked Service Attendance time/date,

example:

Booked Service Attendance time/date:  3:30 PM on Thursday 15 June 2017

Latest Cancellation date: 5:00 PM on Monday 12 June 2017

Law means any and all:

  • All applicable laws from time to time including common Law, legislation and subordinate legislation and ordinances, codes, regulations and by-laws of relevant government, semi-government or local authorities and other instruments under any of them;
  • Permits, authorisations, consents, judgments, orders or decrees of any governmental agency or judicial or quasi-judicial body; and
  • The relevant party’s constituent documents.

Obligations means any and all of a party’s obligations under these terms and conditions.

Personnel means in relation to a party, that party’s officers, employees, agents, volunteers and contractors.

Privacy Law means the Privacy Act 1988 (Cth), the Health Records Act (Vic) or its equivalent in any applicable jurisdiction and any applicable law with respect to the privacy of Reports or information concerning individuals including any determination or guideline issued under such Law.

Proceedings means a legal proceeding, including arbitration in any court or quasi-judicial tribunal in any jurisdiction but not including proceedings in the nature of an application for interlocutory relief.

Public Holiday means days that are declared as gazetted or specified under the relevant Law as public holidays in the Jurisdiction.

Related Entity means a Related Body Corporate as defined in the Corporations Act 2001.

Report means a Consultant’s written report with respect to an Examinee.

Report Material means all materials, information and databases used by a Consultant or eReports to provide a Report.

Service Attendance means the examination of or meeting between an Examinee and a Consultant to inform a Service at the place and time as directed by eReports.

Service Booking means an order for the purchase of Services by Client from eReports whether oral or written.

Services means Services provided or procured by eReports including Examinations and Reports.

Transfer means transfer, sell, assign, novate, Encumber or deal with.