End User Licence Agreement

Background

A. The Company has developed the Portal.
B. You wish to access the Portal and use it in your business operations.
C. The Company agrees to provide access to the Portal to you, and you agree to access the Portal, on the terms of this Agreement.

Terms

1. Definitions and interpretation

1.1 Definitions
The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement means these terms and conditions and the Company’s privacy policy.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Authorized Users means your employees, agents and independent contractors who are authorized by you to access and use the Portal in accordance with these terms.
Business Day means any day except a Saturday, Sunday, public holiday or bank holiday in Victoria, Australia.
Company means Entoura Pty Ltd (ACN 630 000 654).
Consequential Loss means any of the following:
(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that, other than for the act or omission of a party, would have been payable under this Agreement;
(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(d) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a third party.
Content means information, data, images, graphics, photo, video, audio, text, files, attachments, information, links, and any other content uploaded to the Portal by the Company.
Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity anywhere in the world.
GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means in relation to a party:
(a) a step taken to enter into an arrangement between the party and its creditors;
(e) a step taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that party’s assets, operations or business;
(f) the party cannot pay its debts as they become due; or
(g) it ceases to carry on business or threatens to do so, other than in accordance with the terms of this Agreement.
Intellectual Property means copyright, database rights, design rights, patents, trade marks, service marks, domain names (whether or not any of the foregoing are registered and including applications for registration), Confidential Information, know-how and all other intellectual property rights or forms of protection of a similar nature or having equivalent or similar effect to any of the same, which may subsist anywhere in the world.
Medical Practitioner means a registered health practitioner qualified and authorised to prescribe medicinal cannabis under the Health Practitioner Regulation National Law, as in force in each State and Territory.
Personnel means any party’s agents, consultants, contractors, employees, directors, officers or sub-contractors.
Portal means the online platform and application managed by the Company to facilitate the processes associated with prescribing and dispensing of medicinal cannabis and education, and includes the Content.
Tax means any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above, including GST.
Third Party Materials means publicly available articles, information, studies or content (including any related Intellectual Property) that:
(a) are provided by third parties;
(h) interoperate with the Portal; and/or
(i) may be identified as third party materials.
you means the user of the Portal (such as Medical Practitioners) and includes anyone acting on their behalf or with their express or implied authority (including any Authorised Users).
1.2 Interpretation
In this Agreement the following rules of interpretation apply, unless specified otherwise:
(a) references to clauses, schedules, annexures, appendices, attachments and exhibits are references to parts of this Agreement;
(b) a reference to a ‘party’ is to a party to this Agreement;
(c) a reference to a ‘person’ includes a natural person or legal entity;
(d) a reference to time is a reference to time in Melbourne, Victoria;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
(g) the terms ‘include’, ‘including’, ‘for example’, or any similar expression are not intended to limit the words it precedes;
(h) all grammatical forms of defined terms have a corresponding meaning;
(i) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it;
(j) any notice, agreement, consent, direction, waiver or similar given or required in connection with this Agreement must be in writing to be effective; and
(k) the main body of this Agreement will prevail over any inconsistent part elsewhere in this Agreement.

2.An information portal

(a) The Portal is a conduit providing information and resources associated with prescribing and dispensing medicinal cannabis in Australia.
(b) The Portal does not constitute and should not be considered as a substitute for:
(i) medical diagnosis; or
(ii) provision of medical or health advice, (nor any similar function). The Portal and the Company’s role in providing such a platform should be construed strictly in this context only.

3.Registration

(a) Anyone who wants to access and use the Portal to act as an account holder must accept this Agreement and register as a user of the Portal.
(b) This Agreement is binding for:
(i) your registration to the Portal; and
(ii) each time the Portal is used by you.
(c) By registering and accepting this Agreement, you agree to its terms. If you do not agree to accept this Agreement, you may not become an account holder of the Portal and will not be able to access or otherwise use the services provided by the Portal to users.
(d) Once you have satisfactorily completed, and submitted to the Company, a registration form and all registration materials (acceptance of which is at the Company’s discretion), you will be sent a registration invite email.
(e) Upon accessing the registration invite email for verification purposes (and completing any verification steps), you will become an account holder of the Portal. As an account holder, an account will be established for you, and you will be will be assigned a username and password for login access to your account.
(f) You will be required to change your password online upon initial login. The Company recommends that such password change be no less frequently than monthly.
(g) Once registered, this Agreement, together with the privacy policy https://ecs.entoura.com.au/privacy-policy/, shall govern the relationship between you and the Company.
(h) Nothing shall prevent the Company from entering the same or similar arrangements with anyone else or other subscribers.
(i) In the process of activating your account to become a registered account holder, you must provide personal information such as your name, address, AHPRA registration number, professional qualifications and an email address. You agree to provide accurate and complete information and to keep the Company updated of any changes. In doing so, you must comply with the provisions of the privacy policy https://ecs.entoura.com.au/privacy-policy/.

4.User obligations

(a) Subject to the terms in this Agreement, you are granted a non-exclusive, personal, non-transferable and non-sub-licensable licence to access and use the Portal (and permit the Authorised Users to access and use the Portal.
(b) You shall not acquire, or be entitled to, any rights other than those expressly set out in this Agreement.
(c) In relation to the Authorised Users, you will ensure that:
(i) each Authorised User will comply with these terms (as the context permits);
(ii) the maximum number of Authorised Users that you authorise to access and use the Portal shall not exceed 10 users;
(iii) each Authorised User keeps a secure password for his/her use of the Portal and keeps the password confidential. The Company recommends that such password be changed by each Authorised User no less frequently than monthly.
(d) You must maintain the security and secrecy of your password. In particular, you must not tell anyone or otherwise disclose your password and you must take all necessary precautions to prevent unauthorised access or use. If a password has been provided to any person who is not authorised, then without prejudice to the Company’s rights, you shall promptly disable such password and the Company shall not issue any new password to them.
(e) Medical Practitioners must only access and use the Portal within Australia and in particular in States or Territories (within Australia) where the prescribing of medicinal cannabis is permitted by law. Medical Practitioners are solely responsible to ensure their use of the Portal complies with all laws and regulatory requirements. For the avoidance of doubt, where you are not a Medical Practitioner, you should not use the Portal and Content for the purposes of prescribing medicinal cannabis.

5.Interactions between you and patients

(a) The Company is not involved, nor does it assume any risk or liability whatsoever, in relation to any of the following:
(i) the subject matter or applicability of the Content;
(ii) the interactions between you, an Authorised User and your patients;
(iii) any reliance on the Content by your patients or anyone else;
(iv) any act, omission, liability, cost, injury or death arising as a result of the foregoing.
(b) Given the sensitive nature of Content, the Company urges you to exercise extreme caution when accessing the Content.
(c) To the extent permitted by law, the Company disclaims all liability for any loss or damage, (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your interaction.

6.Confidential Information

6.1 Obligation not to disclose Confidential Information
(a) You must keep the Confidential Information of the Company confidential, and not disclose it except:
(i) to your Personnel for the purpose of performing your obligations under this Agreement;
(ii) as required by law, subject to clause 6.2; or
(iii) to your professional advisers engaged to provide legal, taxation or accounting advice, and to the extent necessary.
(b) In addition to the obligations under clause 6.1(a), you must comply with any direction of the Company to return or destroy or permanently delete all copies of the Confidential Information (to the extent reasonably practicable), at any time, at your expense.
6.2 Disclosure
(a) Any disclosure made under clause 6.1(a)(i) and 6.1(a)(iii) must be on terms no less restrictive than the terms in this Agreement.
(b) You must notify the Company prior to disclosing any information pursuant to a legal or regulatory requirement, and provide the Company the opportunity to challenge the requirement or redact information subject to legal professional privilege.
6.3 Confidential Information on termination
On termination of this Agreement, you must:
(a) immediately cease using the Company’s Confidential Information; and
(b) at your cost, comply with any request to:
(i) return to the Company all documents and materials (and any copies) containing the Company’s Confidential Information;
(ii) permanently erase the Company’s Confidential Information from your systems (to the extent possible); and
(iii) certify in writing that you have complied with this clause 6.3.
6.4 Survival
The obligations in this clause 6 apply as long as the information is Confidential Information.

7. Intellectual Property

7.1 Company IP
The Company is the owner or the licensee of all Intellectual Property contained within, or via, the Portal (including the look and feel, code, brands, logos and trade marks, information, graphics, photographs, content, images, sounds, video, audio, text, layout, logos, button icons and the compilation and organisation thereof, and all Intellectual Property contained therein).
7.2 Databases
(a) We are the owner of the database of users of the Portal (including Authorised Users) and all data contained within such database (and all Intellectual Property contained therein), including their names and email addresses.
(b) All of the Company’s Intellectual Property shall remain vested in it and nothing shall grant you or anyone else any right, title or interest in it.
7.3 Access and right to moderate
(a) You recognise that the Company has access to all of your account administration areas.
(b) The Company retains the right to use or moderate such information for the Company’s business purposes.

8. Third Party Materials

(a) You acknowledge that the Portal may enable or assist you to use or access Third Party Materials solely at your own risk.
(b) The Company makes no representation or commitment and will have no liability or obligation whatsoever in relation to the content or use of any such Third Party Materials.
(c) The Company recommends that you refer to the third party’s terms and conditions, disclaimers, medical or health notifications and privacy policy https://ecs.entoura.com.au/privacy-policy/ prior to using the relevant Third Party Materials.
(d) The Company does not endorse, sponsor or approve any Third Party Materials made available on or via the Portal.
(e) Any rights you may have to access Third Party Materials will be limited to:
(i) the extent of the Company’s ability to pass on such rights to you; or
(ii) the relevant third party terms.

9. Termination or suspension

(a) The Company may change the Portal and suspend, terminate or restrict your registration at any time if:
(i) it believes there has been a breach of this Agreement; or
(ii) you suffer an Insolvency Event.
(b) In the event that the Company changes the Portal, suspends, terminates or restricts your registration in the circumstances set out in clause 9.1(a), you may not be able to access the Portal temporarily or permanently and you are prohibited from applying for a new account.
(c) The Company may suspend, terminate or restrict your registration at any time for convenience by giving you notice in writing.
(d) The Company may also suspend access to your account or the Portal immediately, at any time without giving you notice, if it believes there are security concerns related to your account or the Portal.

10. Liability

10.1 Non-excludable Obligations
(a) To the extent that you acquire goods or services from the Company as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this clause 10 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(i) contravene that statute; or
(ii) cause any term of this Agreement to be void
(Non-excludable Obligation).
10.2 Exclusion of liability
Except in relation to Non-excludable Obligations:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement;
(b) the Company’s liability to you or any third party arising directly or indirectly under or in any way connected with this Agreement or the performance or non-performance of this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
(i) the Company excludes all liability for Consequential Loss incurred by, or awarded against, you in relation to the Portal, or under or in any way connected with this Agreement;
(ii) the Company excludes all liability for any loss to any property or for any personal injury or death; and
(iii) the Company’s total aggregate liability in respect of the Portal, or under or in any way connected with this Agreement, is limited to the resupply of the Content to you.
10.3 No warranties
Except as expressly and specifically provided in this Agreement:
(a) you assume sole responsibility for any results obtained from, or outcomes arising from, your access to, and use of, the Portal, and for conclusions drawn from such use. The Company will have no liability to you or any third party for any:
(i) decision, act, or failure to act by you based on any results obtained from your access to, and use of, the Portal; and
(ii) damage caused by errors or omissions in any information or instructions provided to the Company by you in connection with the Portal or any actions taken by the Company at your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement; and
(c) the Portal is provided to you on an ‘as is’ basis.
10.4 Indemnity
You will defend, indemnify and hold the Company and its Personnel (collectively, the Indemnified) harmless from and against any and all claims and losses (including legal costs) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of, any:
(a) breach or non-performance by you of any of your obligations under this Agreement;
(b) negligent, wilful or wrongful act or omission, committed by you;
(c) loss of or damage to any property belonging to you or any third party or any personal injury or death arising out of or in connection with this Agreement;
(d) loss or damage suffered or incurred by you or any third party as a result of your failure to upload or submit accurate or reliable information onto the Portal;
(e) breach by you of any third party’s Intellectual Property; or
(f) actual or alleged breach by you of any law.

11. Nature of relationship

(a) Nothing herein is intended to, or shall operate to, create a partnership, agency or joint venture between you and the Company.
(b) The Company is merely a facilitator in procuring an opportunity for you to provide Content to your patients. The provision of Content to your patients is effected at your sole and entire risk.

12. Uncontrolled event

The Company will have no liability to you or anyone else if it is prevented from or delayed in performing its obligations under this Agreement, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disaster, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of hosting or data centre providers or other suppliers or sub-contractors, or shortage of suppliers, equipment or materials.

13. Notices

A notice, consent, waiver, direction or similar given or required under this Agreement:
(a) must be in writing, in English and sent by an authorised representative of the party sending it;
(b) must be delivered to the recipient in person, by email or registered post to the recipient’s email or address for notice (as provided from time to time); and
(c) is deemed to be given by the sender and received by the recipient:
(i) if delivered in person, on delivery;
(ii) if sent and received by email, on the date and time shown on the email; or
(iii) if posted, 5 Business Days (or 8 Business Days, if posted outside Australia) after the date of posting to the recipient.

14. Updates and variations

A notice, consent, waiver, direction or similar given or required under this Agreement:
(a) The Content may update regularly however, any of the Content may be out of date at any given time, and there is no obligation to update such material.
(b) We may revise this Agreement at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we made, as they are binding on you. Some of the provisions contained in this Agreement may also be superseded by provisions or notices published elsewhere on the Portal. Any changes are effective immediately upon posting to the Portal. Your continued use of the Portal thereafter constitutes your agreement to all such changed Agreement.
(c) Please read this Agreement before using the Portal. If you do not agree to any change, then you must immediately stop using the Portal.

15. General

15.1 Electronic execution and communication
(a) The parties consent to giving and receiving notices electronically.
(b) This Agreement may be executed and delivered electronically in accordance with the Electronic Transactions (Victoria) Act 2000.

15.2 No waiver
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

15.3 Assignment
(a) You may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any rights or obligations under this Agreement without the Company’s prior consent.
(b) The Company may assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any rights or obligations under this Agreement as it may, in its absolute discretion, see fit.

15.4 Severability
If any part of this Agreement is or becomes invalid or unenforceable under any law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

15.5 Remedies cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

15.6 Entire agreement
This Agreement is the entire agreement between the parties and supersedes any prior conduct, arrangement, agreement or understanding in relation to its subject matter.

15.7 Costs
The parties will bear their own costs, including legal costs, in connection with the preparation and execution of this Agreement.

15.8 Governing law and jurisdiction
(a) This Agreement is governed by the laws in force in Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of Victoria.
(b) The Portal is available only to people who can form legally binding contracts under applicable law.