Last updated: 9 August 2022
You will be taken to have accepted, and will be legally bound by, these Terms and Conditions if you:
click “I accept” on these Terms and Conditions where the option is made available to you;
sign any order form containing the Service Details and return it to us electronically or by other means;
register an account on the Medcast Platform; and/or
make a payment in respect of any of the Services after receiving or being presented with these Terms and Conditions.
These Terms and Conditions apply to all transactions between Critical Care Education Services Pty Ltd ABN 34 623 420 468 and/or Medcast Pty Ltd ABN 11 166 955 433 (us, we or our) and you relating to the provision of the Services and constitutes a separate legal agreement in respect of each Service Details that you receive and accept.
We may amend these Terms and Conditions from time to time by providing reasonable written notice to you (email being sufficient).
You must not enter into an agreement with us for the supply of the Services, and we will be under no obligation to supply the Services, if you do not agree to and accept these Terms and Conditions.
For fixed term Services and Courses
This Agreement commences on the Commencement Date and continues until the Services under the relevant Service Details are completed, unless terminated or cancelled earlier in accordance with these Terms and Conditions.
For Subscriptions
This Agreement commences on the Commencement Date and continues for the initial subscription period set out in the Service Details.
At the end of the initial or any further subscription period, this Agreement will automatically renew for a further term of the same period without further notice to you, until cancelled or terminated by either party in accordance with clause 20 or 1.
You must work with us to facilitate the provision of the Services including by:
using the Services for lawful purposes only;
ensuring you conform with the payment terms in the Service Details;
co-operating with us and promptly providing all assistance and information reasonably required by us;
only using the Materials for the purpose of receiving or using the Services from us;
not committing or engaging in any practice that:
is harmful to our systems, brand, reputation or goodwill; or
interferes with the integrity of the Services or Medcast Platform, including, but not limited to, by hacking, transmitting any viruses, spyware, malware or any other code of a destructive or disruptive nature;
not interfering with the privacy of, harassing, intimidating, acting violently or inappropriately towards or being discriminatory against another client or an employee of ours;
not distributing or sending communications to other clients of ours that attempt to sell goods or services or contain spam, chain letters, or pyramid schemes;
not harvesting or otherwise collecting information about others without their consent;
complying with all applicable laws and regulations; and
ensuring that you do not cause or contribute to any matter or circumstance that is likely to give rise to an Infringement Claim.
We will:
perform our obligations under this Agreement with due care, skill and diligence and ensure that our employees, agents or contractors are appropriately skilled and qualified;
endeavour to provide the Services in accordance with the Service Details;
provide the Material in accordance with this Agreement;
use reasonable endeavours to ensure no viruses or similar programming effects are coded or introduced as a direct result of the provision of the Medcast Platform; and
comply with all applicable laws and regulations.
You must create an account (Account) on the Medcast Platform for the purposes of accessing the Services. Registration may require you to provide personal details including a valid email address, telephone number, professional and/or employment information and a username and password for log in purposes.
If your registration information changes, you must promptly update your Account to reflect those changes.
You are responsible for keeping your Account details, including your username and password, secure and confidential at all times. You must not share your Account details with anyone or allow others to access and use your Account.
You must immediately notify us of any actual or suspected unauthorised use of or access to your Account, or any other breaches of security.
We have the right to suspend access to your Account, or to terminate your Account at any time if you breach this Agreement.
You may use the Medcast Platform and the Materials available through the Medcast Platform on the terms set out in this Agreement for the term of this Agreement.
In addition to the obligations in clause 3, if you are using the Medcast Platform, you must not:
share the use of the Medcast Platform with any third party;
resell the Medcast Platform;
sub-licence the use of the Medcast Platform;
copy any of the Materials (except incidentally in the course of use of the Medcast Platform and Services);
use the Medcast Platform, or any information gathered through the use of the Medcast Platform, in a way which is in breach of any applicable statute, regulation, law or legal right of any person;
create any derivative work from, frame, mirror, publish, distribute or make available to any third party, the Medcast Platform or the Materials in any form or media or by any means; or
reverse engineer any of the Medcast Platform or Materials to determine any design structure, concepts or methodology used to create them or to incorporate any of them in any other software or product or for any other purpose.
Medcast may amend or upgrade the Medcast Platform at any time. Medcast will advise you of any changes which would materially or substantively impact or change your use of the Medcast Platform by providing written notice and, if appropriate, publishing the information on the Website.
For fixed term Services and Courses
We reserve the right to change our Services or Courses at any time and for any reason by giving reasonable notice to you.
The change will come into effect on the date specified within our notice, or within a reasonably practicable time after the date of our notice.
Your continued use of the Service or Courses will be taken as acceptance of any changes. If you do not accept our change to the Services or the Course, you may cancel or terminate the Services or Course in accordance with clause 20 or 1.
For Subscriptions
We may change our Services at any time with reasonable notice to you.
In our notice, we will let you know when the change is effective and how that will affect your use of the Services.
Where you have purchased a Course as part of our Services, you may have the option of electing to attend a training facility as part of the Course (Facility).
These Facilities may not be Facilities owned by us.
We do not warrant the safety, security, convenience or state of the Facilities and you attend the Facility at your own risk.
We may provide Training Equipment for you to use for the purposes of your participation in our Courses and Services.
When using any Training Equipment, you must ensure that you:
only use the Training Equipment for the permitted or intended purpose and in accordance with all directions provided by us;
not damage, deface or destroy any Training Equipment; and
return the Training Equipment to us in good working order.
We do not represent or warrant that any Training Equipment that we provide for the Services will be the same or similar to any equipment or tools you already use.
You are liable for and indemnify us against any loss we incur as a result of your misuse of any Training Equipment, and for any damage or destruction of any Training Equipment while it is in your possession.
During the Course or Services, we may require you to:
register through our Website for access to Material for training and progress tracking; and/or
access a third party’s website, application, service or content which is not under our control, and such access is at your risk.
In consideration of us providing the Services, you will pay us the Fees in accordance with the payment terms specified in the Service Details and the terms of this Agreement.
All Fees must be paid in advance with a valid credit card.
Credit card payments are subject to validation checks and authorisations by the card issuer. If the issuer of your payment card refuses to or does not for any reason authorise payment of the Fees, the payment will not be processed.
You are responsible for all bank fees and charges in addition to the Fees.
For fixed term Services and Courses
All Fees for fixed term Services and Courses must be paid in advance via our website with a valid credit card, unless otherwise directed by us.
For Subscriptions
Subscription Fees may be paid monthly or annually, at your election. Access to the Medcast Platform is conditional on timely payment of all Subscription Fees.
For the avoidance of doubt, Subscription Fees are payable for the duration of your subscription term. If you elect to pay the Subscription Fees monthly, you will continue to be liable for the monthly fees for the entire duration of your subscription term.
If the applicable Subscription Fee is not paid to us or automatically debited for any reason by the due date, we may, at our discretion:
cancel your Account;
temporarily suspend your access to all or some of the features of the Medcast Platform until such time as payment of the Subscription Fee is received by us in full.
If you dispute any Fees payable under clause 10.2, you must:
notify us of the amount in dispute and the reason for the dispute by the due date for payment; and
pay any amounts not in dispute.
The parties must resolve any dispute under this clause 10.3 in accordance with clause 19.
If it is resolved that some or all of the amount in dispute should have been paid by the due date for payment, you must pay the amount finally resolved together with interest on that amount calculated in accordance with clause 10.4(a).
If you do not make payment in accordance with this Agreement, we are entitled to do any or all of the following:
charge interest on the outstanding amount at a rate of 10% per annum, accruing daily;
suspend provision of the Services until such time as payment is received, including revoking your access to our Services until such time as payment is received (as applicable);
terminate this Agreement without notice; and/or
recover any losses suffered by us as a result of your failure to pay.
If you have failed to make a payment in accordance with the Service Details and these Terms, we may withhold:
confirmation of completion or any certification or accreditation in connection with the Services from you; and/or
delivery of any Materials to you.
until all money owing by you to us has been paid in full.
You acknowledge that the Fees are inclusive of GST.
If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient an invoice.
Each party must keep confidential any Confidential Information disclosed to it or made available to it by the other party.
At the request of the party to whom the Confidential Information belongs, each party must deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.
If a party must retain the other party's Confidential Information for the purpose of:
complying with any law;
litigation;
internal quality assurance and record-keeping; or
performing its obligations or exercising its rights under this Agreement,
it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 11(b) promptly after it is no longer required for this purpose.
We will:
comply with all Privacy Laws in relation to Personal Information;
only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;
only use or disclose Personal Information to the extent necessary to provide, use or provide the Services;
ensure any person to whom we disclose Personal Information is aware of and complies with our obligations under this clause 12.1; and
not do any act, engage in any practice, or omit to do any act or engage in any practice that would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in, or omitted to be done by us.
You acknowledge and agree that we may disclose your Personal Information to our employees to the extent they have a need to know for the purposes of providing the Services, providing additional assistance or support, or as otherwise permitted under our published Privacy Policy.
Medcast owns all right, title and interest in and to the Medcast Platform and the Material.
You do not acquire any right, title or interest in or to the Medcast Platform and the Material by virtue of this Agreement, other than as expressly set out in this Agreement.
We grant you a non-exclusive, non-transferable, non-assignable, revocable licence to use the Medcast Platform (as applicable) and Materials strictly for the purpose of receiving and utilising the Services in the ordinary course of your business and without the right to re-sell, commercially exploit or share our Material.
If any new material is developed in the provision of the Services, including but not limited to any new features or functionality of the Medcast Platform suggested by you, Medcast will own, and you hereby assign to Medcast on creation, all existing and future Intellectual Property Rights in and to any such material.
Each party represents and warrants to the other party that during the Term:
it has full power and authority to enter into, perform and observe its obligations under this Agreement; and
its obligations under this Agreement are valid, binding and enforceable.
We represent and warrant to you that, at all times during the Term:
to the best of our knowledge, we have the right and power to grant you the licences under this Agreement;
we, and each of our employees, agents or contractors, has the level of skill, knowledge, experience and ability which may be reasonably expected of a professional organisation or individual, as applicable, experienced in providing services of the type and complexity of the Services; and
we will do all things reasonably necessary to ensure the Services are completed in accordance with the terms of the Service Details.
We provide no warranty that any result or objective can or will be achieved or attained at all as a result of the provision of the Services.
We provide no warranty as to the suitability of the content of the Materials for any purpose other than that specified in the Service Details, which we may interpret, and apply using our experience, skill and judgment, in order to prepare the Materials and determine the content.
We provide no warranty as to the Services being fit for purpose, continuous, uninterrupted, accurate, error-free, virus-free, secure or accessible at all times.
We provide no warranty as to the suitability of the Services or the content of the Materials for any purpose other than that specified in this Agreement or in the Service Details, which we may interpret, and apply using our experience, skill and judgment, to provide the Services.
We will use reasonable endeavours to provide the Services in accordance with any time frames agreed between the parties in the Service Details and subject always to your necessary cooperation and assistance. However, any such time frames are indicative only and we make no warranty or representation that the Services will be provided according to that time frame.
We are not liable for any loss if the Services are not accessible due to third-party actions, including but not limited to the maintenance services, internet service providers, third-party servers, nefarious hacks or distributed denial of service attacks.
We may remove any content, Material and/or information, without giving any explanation or justification.
Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all and any claims (including, but not limited to, reasonable legal costs and defence or settlement costs) directly or indirectly arising out of, or in connection with:
any breach of this Agreement by the Indemnifying Party;
any fraudulent or unlawful act or omission of the Indemnifying Party;
any damage to or loss or destruction of real or personal property (including Training Equipment) caused or contributed to by any act or omission of the Indemnifying Party; and
any third-party claim,
except to the extent the loss, damage or cost is caused or contributed to by the act or omission of the Indemnified Party.
If an Infringement Claim is made:
you must promptly notify us and provide us with assistance to manage the Infringement Claim, as reasonably requested by us; and
we are responsible for and will have the right solely to control the defence and settlement of the Infringement Claim.
If a Force Majeure Event prevents us from providing the Services, we will provide you with written notice of the Force Majeure Event and the anticipated impact on our performance of the Services.
If a Force Majeure Event continues for more than 30 days, either party may terminate the Agreement by written notice to the other without liability for damages of any kind, including for Consequential Loss.
A party must not commence legal proceedings relating to this Agreement unless the party wishing to commence proceedings has complied with this clause 19. However, this clause will not apply where a party seeks urgent interlocutory relief from a court.
If a dispute arises between the parties out of or relating to this Agreement, then:
the party alleging the dispute must notify the existence and nature of the dispute to the other party within 10 days of the dispute arising;
upon receipt of a notification, the parties must, within 5 days, engage in good faith negotiations and use best endeavours to resolve the dispute;
if the dispute is not resolved as provided in paragraph (ii) within 14 days of receipt of the notification, then any party may refer the dispute to mediation as provided in paragraph (iv) and must do so before initiating proceedings in a court to resolve the dispute;
any dispute which is referred to mediation must be referred to the Resolution Institute and must be conducted in accordance with the Mediation Rules of the Resolution Institution or the parties may appoint a mediator by mutual agreement; and
if the dispute is not resolved within 30 days of referral to mediation, any party is free to initiate proceedings in a court in respect of the dispute.
We may cancel or postpone the Services in whole or in part at will prior to their commencement by giving reasonable prior written notice to you.
Course
You may withdraw from a Course or transfer your enrollment to an equivalent Course running on another date by giving notice in writing to support@medcast.com.au, or by using the functionality of the Medcast Platform.
If you withdraw from a Course at least 7 days before the Commencement Date of the Course, you will be entitled to receive a refund of the Fees and Deposit paid by you, however a cancellation fee of $55 will be deducted from the amount refunded to you.
If you withdraw from a Course less than 7 days before the Commencement Date of the Course, you will be entitled to receive a refund of 50% of the Fees paid by you.
If you withdraw from a Course after the Course has commenced, or if you have completed any part of the online learning, you will not receive a refund of any of the Fees or Deposit paid by you.
Subscription
If you have a Subscription to our Services, you may cancel your Subscription at any time by providing notice in writing to us at support@medcast.com.au or through the functionality of the Medcast Platform.
Your cancellation will take effect at the end of the then current subscription period.
If you cancel your Subscription or if we cancel your Account as a result of you breaching this Agreement, then any Subscription Fees paid will not be refunded and any outstanding Subscription Fees and other fees become immediately due and payable upon cancellation.
If we terminate your Subscription or access to or operation of the Medcast Platform for any other reason and you have paid applicable Subscription Fees in respect of the period after cancellation, we will refund any Subscription Fees you have paid on a pro rata basis by cheque or to a bank account notified by you for that purpose within a reasonable time of cancellation.
Either party may terminate this Agreement by 14 days’ written notice if the other party:
commits a material breach of the Agreement that is not capable of remedy;
commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 14 days after receipt of notice of the breach; or
is bankrupt, or is liquidated or wound up, or if a controller, administrator, receiver, manager or similar insolvency administrator is appointed to a party, or over any substantial part of its assets.
If you terminate this Agreement under clause 21.1 then, without limiting any other rights, you:
will not be required to make any payment in respect of Services not yet supplied on the effective date of termination; and
the parties will negotiate in good faith for the completion or early termination of any Service Details commenced but not completed as at the effective date of termination; and
will not be entitled to recover from us any money paid for Services not yet supplied.
After exercising your rights under clause 21.1, you must pay the net amount outstanding to us for the Services, or part of a Service, supplied on or before the effective date of termination.
We may immediately terminate this Agreement by notice to you, if:
you fail to pay one or more undisputed amounts due and payable; and
we issue a notice to you that we intend to terminate this Agreement pursuant to this clause 21.3 if payment of the outstanding amount, plus interest, is not received within 14 days of you receiving the notice; and
you fail to make payment of the outstanding amount plus interest within 14 days of receiving a notice in accordance with the clause 21.3.
If this Agreement is terminated by us under clause 1, 21.1 or 21.3, all money owing by you to us under this Agreement, will immediately become due and payable.
Expiry or termination of this Agreement for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to, or which may arise at any future time for any breach or non-observance of obligations under this Agreement occurring prior to the termination or expiry.
For fixed Services and Courses
To the fullest extent permitted by law, the total liability of a party to the other party under or in connection with this Agreement in respect of all Claims will not exceed the Fees paid or payable for the Services.
For Subscriptions
To the fullest extent permitted by law, the total liability of a party to the other party under or in connection with this Agreement in respect of all Claims will not exceed the Fees paid or payable for the Services in the 12 months prior to the Claim arising.
Subject to clause 22.2(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.
Pursuant to s64A of the Australian Consumer Law, this clause applies regarding any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law is limited:
to re-supplying the Services; or
making full payment for the cost of having the services supplied again.
Neither party is liable to the other for any kind of indirect or Consequential Loss or damage, including loss or corruption of the Confidential Information, copies or backups, arising out of or in connection with this Agreement.
Nothing in this Agreement is intended to limit or exclude your consumer guarantees under the Australian Consumer Law.
We are a non-exclusive independent contractor to you. Nothing in this Agreement is intended to create an employment or agency relationship between you and us.
A notice, consent, approval, waiver or other communication provided in connection with this Agreement must be in writing.
A notice may be given by hand delivery, post or by email and is effective upon receipt.
This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.
We may subcontract any or all of our obligations under this Agreement to a third party at any time and without your prior consent, provided that we remain liable for the provision of the Services to you in accordance with this Agreement.
You acknowledge that you are not, and will at no time be, an exclusive client for the kinds of services contemplated by this Agreement and any Service Details.
You must not assign or otherwise deal with all or any party of its rights or obligations under the Agreement without our prior written consent (which may not be unreasonably withheld but which may be given subject to reasonable conditions).
We may assign or otherwise deal with any of our rights or obligations under the Agreement without your prior consent.
A provision of the Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.
If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of the Agreement.
Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 11 (Confidential information), clause 12 (Intellectual property), clause 14 (Warranties), clause 15 (Indemnity and infringement claims), clause 19 (Dispute resolution), clause 21.2 (Consequences of termination), clause 22.1 (Liability and exclusion) and clause 23.10 (Governing law and jurisdiction).
This Agreement is governed by the laws in force in Sydney, New South Wales and the parties submit to the exclusive jurisdiction of the courts of Sydney, New South Wales.
The following definitions apply to this Agreement:
Agreement means the agreement between you and us for the supply of Services comprised of the Service Details and these Terms and Conditions.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information of a party means all information of a confidential nature, including financial, customer information, supplier information, specifications, processes, statements, formulae, trade secrets, designs and data, which is not in the public domain, except by a breach of the confidentiality obligations arising under this Agreement.
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:
incidental, special, remote or unforeseeable loss;
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 would, but for the act or omission of a party, have otherwise been payable under this Agreement;
costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.
Commencement Date means either:
the date on which you accept this Agreement in accordance with clause 1; or
the date which is specified as the Commencement Date in the Service Details.
Course means an educational course for health professionals or support staff run by us and delivered online or in-person at a Facility as more fully particularised in the Service Details.
Deposit means the amount specified as such in the Service Details (if applicable).
Fee means the fees for the Services, as specified in the Service Details, including any applicable Deposit.
Force Majeure Event means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement.
GST means the goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Infringement Claim is any actual, threatened or potential claim, demand, proceeding, suit, objection or other challenge:
affecting either parties' ownership of, or rights in, that party's Background IP; or
claiming that the supply or other use of the Material or Background IP, infringes or may infringe the Intellectual Property rights of a third party.
Insolvency Event means bankruptcy, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party, or any substantial part of its assets or any event that has a substantially similar effect to the above events.
Intellectual Property (Rights) means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to trade marks, copyright, patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to Confidential Information, trade secrets, know-how, inventions, discoveries, geographical indications of origin, semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, modules, libraries and databases and further includes the right to apply for the registration or grant of any such intellectual property.
Material means all material in whatever form, including documents, specifications, reports, products, equipment, Training Equipment, information, data, graphic layouts, images and software, prepared and provided by us in connection with the Services, and which may be more particularly described in the Service Details.
Medcast Platform means the online education and training portal provided by us and made available to you via medcast.com.au.
Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws.
Privacy Laws means all domestic and international laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party.
Services means the services to be provided by us to you, as more particularly described in the Service Details and including, where applicable, provision of the Medcast Platform.
Service Details means the details of the Services to be provided by us to you under this Agreement and the Fees payable. Service Details maybe be set out in an order form executed or otherwise accepted by you, on our website, Medcast Platform or in other communications to you from us (including by email).
Subscription means the monthly or annually recurring subscription payment model for our Services.
Term means the period from the Commencement Date and the date that this Agreement is terminated or expires in accordance with its terms.
Terms and Conditions means these terms and conditions, as amended by us from time to time.
Training Equipment means all property and equipment provided by us in connection with the Services, including any tools, props, manikins, simulators, defibrillators, computers, hardware, projectors, projector screens, and which may be more particularly described in the Service Details.
Website means our website located at https://medcast.com.au and all subdomains thereof, as amended by us from time to time.
you, your means the party acquiring the Services from us as identified in the Service Details.
In this Agreement:
no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
all monetary amounts are expressed in AUD; and
the parties must perform their obligations on the dates and times fixed by reference to Sydney, New South Wales