Background

  1. TGL is a not for profit independent organisation which creates, produces and publishes therapeutic information under the name Therapeutic Guidelines (as herein defined).
  2. eTG complete is an integrated online product which incorporates more than 3,000 topics from Therapeutic Guidelines.
  3. TGL has agreed to licence and make eTG complete available to you on the terms set out in this agreement.

The Parties Agree

1. Definitions

In this agreement unless expressed or implied to the contrary:

Authorised Users means persons who are authorised under this agreement to access the Product in accordance with the terms of this agreement and for whom:

  1. passwords, serial numbers, tokens or other identifiers have been issued by TGL; or
  2. an IP address or referring URL is recognised for authentication.

Business Day means Monday to Friday excluding public holidays in Victoria.

eTG complete means the integrated online product marketed under that name incorporating more than 3,000 topics from Therapeutic Guidelines, as created, produced and published by TGL or otherwise at its direction.

Licence Fee means the fee payable by you for the Product for the Term as accepted by you when you order the Product or otherwise notified by TGL to you in writing from time to time.

Product means eTG complete and includes:

  1. all content, information and software (if any) supplied as part of the product;
  2. any online media, platform or other application by or on which the product is supplied;
  3. any physical media in which the product is supplied;
  4. any Updates; and
  5. any supporting explanatory material data or ancillary documents supplied with the product or made available to you,

whether supplied or made available online, on any other storage media through the TGL Website or otherwise.

Site means the site or sites (if any) described, defined or delineated, including by way of a plan, as accepted by you when you order the Product or as specified by TGL in writing from time to time.

Supplemental Terms means any additional terms agreed between the parties or specified by TGL in writing from time to time.

Term means a period of one year from the date of your acceptance of this agreement and each additional term of one year in which a Licence Fee is paid by you, or such other period as specified by TGL in writing from time to time.

TGL Website means the website having the URL www.tg.org.au or any other website operated by TGL.

Therapeutic Guidelines means the guidelines prepared and published by TGL and includes all Updates.

Updates means updates or modifications of or deletions from the content or layout of the Product supplied or made available from time to time by TGL.

2. License

2.1 TGL grants you a non-exclusive, non-transferrable licence to access and use the Product strictly in accordance with this agreement.

2.2 You may only use the Product on the terms and conditions of this agreement and any Supplemental Terms.

2.3 The licence granted under this agreement is in respect of the number of Authorised Users as specified by you when you order the Product as modified from time to time under this agreement.

2.4 You must ensure that the Product is only accessed in accordance with the Site Details, if any, specified by you when you order the Product.

2.5 This agreement expires at the end of the Term or upon earlier termination of this agreement.

3. Authorised Users

3.1 You must ensure that any person having access to the Product under this agreement:

3.1.1 is currently an Authorised User; and
3.1.2 uses the Product in accordance with the licence terms and conditions set out in this agreement.

3.2 You must ensure that no other person (including any person who was previously an Authorised User) can access or use the Product.

3.3 You must not impose any additional contractual terms or seek any payment or pecuniary benefit from an Authorised User, except that you may seek a pro rata contribution to the Licence Fee from Authorised Users having regard to the basis upon which the Licence Fee is calculated.

3.4 Notwithstanding your obligation at clause 3.2, TGL may from time to time take any reasonable steps TGL deems appropriate to ensure that only Authorised Users access and use the Product.

3.5 Without limiting clause 5.3, where the Licence Fee is calculated on a particular basis, such as by reference to the number of Authorised Users specified by you when you order the Product, you must notify TGL of details of any:

3.5.1 proposed additional authorised users;
3.5.2 any further persons who access or use the Product; or
3.5.3 any other thing, matter or event occurring or likely to occur,

that causes or would cause the Licence Fee to be recalculated to a higher amount (for example, the maximum number of Authorised Users specified by you is exceeded), within 30 days of any event described or contemplated in this clause 3.5 occurring. Failure to comply with this clause 3.5 will constitute a material breach of this agreement.

3.6 Any password, serial number, token, IP address or other identification (Identification) issued to:

3.6.1 an Authorised User; or
3.6.2 a person in anticipation of a person becoming an Authorised User,

is personal and confidential to that Authorised User or person. TGL may cancel any such Identification if TGL reasonably suspects that the Identification is being misused or used by a person other than an Authorised User or person approved under this agreement.

4. Updates

4.1 During the Term and provided you are not in breach of this agreement, TGL will make Updates available to you as soon as possible after they are made generally available.

4.2 By continuing to access or use the Product, you are deemed to agree to accept such Updates.

4.3 TGL will give notice of each Update on the TGL website for a period of 28 days commencing no later than 7 days after the Update is made available.

5. The License Fee

5.1 You must pay the Licence Fee in the amount and at the time or times agreed by you when you order the Product.

5.2 If payment of the Licence Fee is made by cheque, payment will not be deemed to have been made until the cheque has been cleared and the proceeds made available to TGL.

5.3 If:

5.3.1 the Licence Fee is calculated on a particular basis (such as by reference to a maximum number of Authorised Users specified by you when you order the Product); and
5.3.2 you notify TGL of any event described or contemplated in clause 3.5; or
5.3.3 TGL otherwise becomes aware of any event described or contemplated in clause 3.5 (for example, that the number of Authorised Users using or accessing the Product has been or is being exceeded),

you will be required to pay TGL on demand for any additional Licence Fee (including any arrears) calculated, as reasonably determined by TGL, by reference to a corresponding increase in the number or other variable on which the Licence Fee had previously been calculated.

5.4 The Licence Fee is non-refundable in all circumstances, except where you terminate this agreement in accordance with clause 13.1 within 15 days of the date of your acceptance of this agreement.

6. GST

6.1 GST Act

In this clause words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as their definition in that Act.

6.2 Exclusive of GST

Except as otherwise provided by this clause 6, all consideration payable under this agreement in relation to any supply is exclusive of GST.

6.3 Recipient must pay

If GST is payable in respect of any supply made by a supplier under this agreement, subject to clause 6.4 the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this agreement.

6.4 Tax invoice

The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST payable under clause 6.3.

7. Intellectual property rights

7.1 All intellectual property rights in the Product (in whatever form) are owned by TGL.

7.2 You, any Authorised User or any other person accessing or using the Product will not acquire any ownership in any intellectual property rights in or related to:

7.2.1 the Product;
7.2.2 any part of the Product; or
7.2.3 any copies of the Product or part of the Product,

by exercising any of your or their rights under this agreement.

7.3 During the Term or at any time after the Term, you must not:

7.3.1 do or permit any act which infringes copyright or any other intellectual property rights of TGL in or related to the Product;
7.3.2 reproduce, translate, adapt, vary or modify part or all of the Product by any means whatever, except as expressly permitted by this agreement;
7.3.3 make available online on any website, electronically transmit or otherwise disseminate any part of the Product except as expressly provided in this agreement;
7.3.4 by any act or omission, impair or prejudice the copyright in the Product or violate any moral right or deal with the Product so that any third party might obtain any lien or other right of whatever nature incompatible with the rights of TGL;
7.3.5 convert the Product into any electronic format other than the one in which it was supplied;
7.3.6 merge the Product with any other database;
7.3.7 attempt to modify, adapt, translate, reverse engineer or otherwise interfere with or derive source code from the Product;
7.3.8 sell, supply or make available the Product or part thereof to any other person except as expressly provided in this agreement;
7.3.9 access the Product or any part thereof via mechanical, programmatic, robotic, scripted or other automated services;
7.3.10 obscure or remove any trademark, brand name or copyright notice or symbol of intellectual property ownership on the Product or otherwise displayed in relation to the Product;
7.3.11 create derivative works based on the Product; or
7.3.12 use the Product to create any product with the same or similar primary function.

7.4 You must not print any part of the Product except:

7.4.1 those portions identified by TGL as print friendly PDF documents; and
7.4.2 an extract which does not constitute a reproduction of a substantial part for the purposes of the Copyright Act 1968 (Cth) and is not printed for or on behalf of a person unrelated to you.

7.5 You must promptly notify TGL as soon as you become aware of any infringement or potential infringement of any of the intellectual property rights of TGL in the Product.

8. Acknowledgment

You acknowledge that:

8.1 you have exercised your independent judgment in acquiring the Product and have not relied on any representation made by TGL which has not been stated expressly in this agreement or upon any descriptions or illustrations or specifications contained in any document, including catalogues or publicity material produced by TGL;

8.2 you have carefully read, understood and will act in accordance with any warning set out in this agreement or in the information or content of the Product;

8.3 the Product is written for and directed primarily at health professionals familiar with medical matters including comprehensive drug information contra-indications and precautions; and

8.4 the Product is provided for reference purposes only and is not intended, and should not be used as, a substitute for professional advice or judgment.

9. Warranty

9.1 TGL will replace any defective Product at no charge, subject to notification of the defect by you, within 90 days of your acceptance of this agreement.

9.2 In the event any statute implies terms or a consumer guarantee into this agreement which cannot be lawfully excluded, such terms will apply to this agreement, save that the liability of TGL for breach of any such guarantee will be limited, at the option of TGL, to any one or more of the following:

9.2.1 the replacement of the Product; or
9.2.2 the payment of the cost of replacing the Product.

9.3 TGL will use commercially reasonable efforts to make the Product available on a continuous basis during the Term. However, the Product is provided on an “as available” basis. Without limiting clause 10, TGL will not be liable to you or any other person whatsoever if the Product is unavailable for any period, but TGL will use commercially reasonable efforts to act as soon as practicable to restore the outage or server access.

10. Limitation of liability

10.1 To the maximum extent permitted by law, TGL will not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from:

10.1.1 errors in or omissions from the Product;
10.1.2 the unavailability or interruption to the supply or availability of the Product; or
10.1.3 any use or misuse of the Product by you, any Authorised User or any other person.

10.2 To the maximum extent permitted by law, TGL will not be liable under this agreement for any indirect or consequential loss or damage (including for loss of profits, wasted expenditure, business interruption, anticipated savings, loss of goodwill, loss of data or for any other indirect, consequential or special loss or damage whether or not the loss or damage was foreseeable or contemplated or ought to have been foreseeable or contemplated, by TGL or if TGL was advised of the possibility of such loss or damage), including arising under an indemnity, arising out of a breach of this agreement or arising out of the supply of a defective Product.

10.3 Any liability of TGL is reduced to the extent that you, any Authorised User or other person caused or contributed to that loss or damage.

10.4 Notwithstanding anything contained in this agreement, the liability of TGL to you in connection with this agreement or the Product (whether for breach of contract, under an indemnity, in tort or otherwise) will not exceed three times the Licence Fee payable by you to TGL for the Term except in respect of liability of TGL arising under clause 11 or as a direct result of TGL’s fraud or wilful misconduct.

11. Indemnity

11.1 Subject to clause 10, each party (Indemnifying Party) indemnifies and holds harmless the other (Indemnified Party) from and against any loss incurred or suffered by the Indemnified Party which arises directly from any claim against the Indemnified Party as a result of:

11.1.1 the fraud or wilful misconduct of the Indemnifying Party;
11.1.2 the injury to, or death of, any person caused by the negligent act or omission of the Indemnifying Party;
11.1.3 damage to tangible property caused by the negligent act or omission of the Indemnifying Party; or
11.1.4 a claim by a third party that the use by the Indemnified Party of material supplied by the Indemnifying Party under this agreement infringes that third party’s intellectual property rights (IP Claim), provided that such use by the Indemnified Party was in accordance with this agreement,

except to the extent the loss was caused or contributed to by the Indemnified Party.

11.2 It is a condition of your right to be indemnified under clause 11.1.4 that:

11.2.1 you provide immediate notice and comprehensive details of the IP Claim to TGL;
11.2.2 you permit TGL to, at TGL’s election, assume sole control of the defence and settlement of the proceedings related to the IP Claim;
11.2.3 you provide all assistance requested by TGL (at TGL’s cost) in connection with the IP Claim; and
11.2.4 in the event that TGL becomes aware of an IP Claim, or suspects that an IP Claim may arise, TGL is permitted (without limiting its other rights under this agreement), to modify the Product so that it is no longer infringing.

11.3 You will indemnify and keep indemnified TGL against any loss, cost, expense or damage TGL suffers, including legal costs on a full indemnity basis, loss of profits or other consequential loss, as a result of or in connection with:

11.3.1 a breach of this agreement by you;
11.3.2 any actual or threatened claim against TGL by an Authorised User or other persons within your control, to the extent such a claim relates in any way to the Product; or
11.3.3 any act or omission of any Authorised User which would constitute a breach of this agreement if it had been an act or omission by you.

12. Privacy

12.1 Each party must comply with the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles.
12.2 Without limiting TGL’s privacy policy, a copy of which can be found at https://www.tg.org.au/privacy-policy/, TGL will use personal information collected about you or Authorised Users for the purposes:

12.2.1 set out in TGL’s privacy policy;
12.2.2 of providing access to and use of the Product by you and Authorised Users, and providing customer support, billing and other activities; and
12.2.3 of conducting marketing, analysis or carrying out other user experience activities, whereby TGL may contact you via email, newsletter or other similar communication methods.

13. Termination

13.1 Either party may terminate this agreement at any time and for any reason by giving at least thirty (30) days’ notice in writing to the other party.

13.2 Notwithstanding anything contained in this agreement, TGL may terminate this agreement and the licence at any time by notice in writing to you if:

13.2.1 you breach any material provision of this agreement and fail to remedy that breach within thirty (30) days of written notice requesting you to do so; or
13.2.2 you become subject to any form of insolvency, administration or bankruptcy.

14. Assignment

Except with the prior written permission of TGL, you must not attempt to sub-licence or assign any of your rights under this agreement.

15. After termination or expiry of this agreement

15.1 On termination or expiry of this agreement, you must immediately cease using the Product or exercising any of the rights granted to you under this agreement and must ensure that all Authorised Users or other persons within your control cease using or accessing the Product.

15.2 The expiry or termination of this agreement will be without prejudice to any accrued rights or obligations of the parties.

15.3 Upon the expiry or termination of this agreement, any of your permitted sub-licensees may continue to use the Product until the earlier of:

15.3.1 the end of the term of the sub-licence; and
15.3.2 a period of one year from the date of termination of this agreement.

16. Interpretation

16.1 Governing law and jurisdiction

This agreement is governed by and is to be construed in accordance with the laws of Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts.

16.2 Joint and several

If a party consists of more than one person, this agreement binds them jointly and each of them severally.

16.3 Legislation

In this agreement, a reference to a statute includes regulations under it and consolidations, amendments, re-enactments or replacements of any of them.

16.4 This agreement, clauses and headings

In this agreement:

16.4.1 a reference to ‘this agreement’ is to this agreement as amended from time to time;
16.4.2 a reference to any document (such as a deed, agreement or other document) is to that document (or, if required by the context, to a part of it) as amended, novated, substituted or supplemented at any time;
16.4.3 a reference to a clause, schedule, appendix or annexure is a reference to a clause, schedule, appendix or annexure in or to this agreement all of which are deemed part of this agreement;
16.4.4 a reference to writing includes all modes of representing or reproducing words in a legible, permanent and visible form and includes writing in a digital form;
16.4.5 headings and sub-headings are inserted for ease of reference only and do not affect the interpretation of this agreement;
16.4.6 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
16.4.7 any body (Original Body) which no longer exists or has been reconstituted, renamed, replaced or whose powers or functions have been removed or transferred to another body or agency, is a reference to the body which most closely serves the purposes or objects of the Original Body; and
16.4.8 the word ‘includes’ in any form is not a word of limitation.

16.5 Severance

16.5.1 If a provision in this agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
16.5.2 If it is not possible to read down a provision as required in this clause 16.5, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this agreement.

16.6 Your acceptance

By accessing, downloading, making available or using the Product or any part of it you are deemed to agree to this agreement.

16.7 Currency

In this agreement or any Product order, a reference to ‘$’ or ‘dollars’ is a reference to Australian dollars.

16.8 Business Day

If a payment or other act is required by this agreement to be made or done on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day.

16.9 Number and gender

In this agreement, a reference to:

16.9.1 the singular includes the plural and vice versa; and
16.9.2 a gender includes the other genders.

16.10 Survival

Clauses 7 (Intellectual property rights), 12 (Privacy), and 15 (After termination or expiry of this agreement) survive the termination or expiry of this agreement.

16.11 Dispute resolution

16.11.1 The parties will use all reasonable endeavours to resolve disputes including utilisation of an agreed neutral third party.
16.11.2 The parties will not initiate legal proceedings in relation to a dispute arising under this agreement unless they have first tried and failed to resolve the dispute by mediation or arbitration.
16.11.3 Nothing in this clause 16.11 limits the right of either party to obtain or initiate proceedings seeking interlocutory relief.

16.12 No agency

16.12.1 The parties acknowledge and agree that TGL is an independent contractor and is not your agent.
16.12.2 This agreement is not intended to create a partnership, joint venture or relationship of employer and employee or principal and agent between the parties.

16.13 No waiver

Any action, including any act of grace, by a party entitled to the benefit of an obligation under this agreement, is only effective as a waiver if it is reduced in writing and provided to the other party, and then only to the extent of that written waiver.

16.14 Amendment to this agreement

TGL may from time to time amend this agreement at TGL’s sole discretion. TGL will use reasonable commercial endeavours to notify you of any amendments to this agreement. The agreement applicable to your access to, and use of, the Product is the current version published by TGL, either via the TGL Website or within the Product (including by way of Updates and new releases to the Product made available by TGL from time to time). By continuing to access or use the Product after any such amendments are made, you are deemed to have agreed to be bound by the amended agreement.

16.15 Further assurance

Each party must promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete the matters or actions contemplated by this agreement.

16.16 No disadvantage

No rule of construction applies to the disadvantage of the party preparing this agreement on the basis that it prepared or put forward this agreement or any part of it.