Terms and Conditions
Empower Pain Management Program Pty Ltd (“Empower PMP”)
ACN 632 830 445
Terms and Conditions of Sale
1.1 Unless the context clearly indicates otherwise, in these Conditions:
“Agent” means an employee, agent, consultant or contractor of Empower PMP.
“Business Day” means a day other than a Saturday, Sunday or an official public holiday in Sydney.
“Claim” against any person means any claim, action, demand, proceeding, judgement, damage, loss, cost, expense or liability however incurred or brought or recovered against that person and however arising (whether or not presently ascertained, immediate, future or contingent).
“Conditions” means these conditions of sale and any other conditions which the parties agree in writing form part of the Contract.
“Contract” means the contract between the Patient and Empower PMP which applies to the delivery of the Program by Empower PMP to the Patient.
“Event of Insolvency” means that the Patient (being an individual) becomes a bankrupt.
“Interest Rate” means the rate which is 500 basis points above the Reserve Bank official cash rate.
“Notice” means any notice or written communication pursuant to the Contract.
“Patient” means the person participating in the Program.
“Program” means a pain management program conducted by Empower PMP.
“Purchase Price” means the price specified by Empower PMP for the Program delivered to the Patient.
“Empower PMP” means Empower Pain Management Program Pty Ltd ACN 632 830 445. “Taxes” means any tax, duty, levy, tariff or other charge imposed by any government, semi government, statutory or regulatory authority.
Reference to a gender includes all genders.
The singular includes the plural and vice versa.
Reference to person includes an individual, company, incorporated association and any other legal entity.
Reference to legislation includes legislation which amends, supersedes, repeals or replaces legislation.
2. Agreement to these Conditions
2.1 The Patient acknowledges and accepts that the sale of Programs by Empower PMP is subject to these Conditions, unless otherwise agreed to in writing by Empower PMP.
2.2 These Conditions apply to the Contract between Empower PMP and the Patient despite any provisions in any other document, unless otherwise agreed to in writing by Empower PMP.
3. Sale of Programs
3.1 Empower PMP agrees to sell, and the Patient agrees to purchase, the Program as set out in the Contract.
4. Payment of Purchase Price
4.1 The Patient must pay the Purchase Price for the Program to Empower PMP.
4.2 Empower PMP may require the payment of the Purchase Price to be made in instalments, including a deposit on order.
4.3 The Patient must pay all instalments on the due date therefore and Empower PMP may refuse entry to the Program to any Patient who has not paid all the required instalments of the Purchase Price.
4.4 If between the date of order and delivery there is an increase beyond Empower PMP’s reasonable control in the cost to Empower PMP of supplying any Program, the appropriate increase shall be payable by the Patient.
4.5 The Purchase Price has been calculated to exclude all Taxes. If a change to the law results in the Taxes payable for Programs altering the Purchase Price, then the Purchase Price is to be adjusted by the amount of alteration in the applicable Taxes.
4.6 If the Patient defaults in any payment due to Empower PMP, refuses to participate in all or any part of a Program except as permitted by the Contract or suffers an Event of Insolvency, Empower PMP may at such time as it considers appropriate, do any one or more of the following, without prejudice to any other rights it has and without notice to the Patient:
(a) stop delivery of a Program to the Patient whether commenced or not;
(b) require payment in advance for the whole of the Purchase Price outstanding;
(c) charge interest at the Interest Rate, which the Patient must pay, on the balance of the Purchase Price that remains unpaid, calculated from the day on which the payment was due until the amount and the accrued interest have been paid;
(d) terminate this Contract and any other agreement or arrangement with the Patient;
(e) claim any loss or damages it sustains, including contractors fees, location fees, administration costs and consequential loss; or
(f) recover any other costs and expenses it incurs on a full indemnity basis.
5. Delivery of Program
5.1 Unless the Contract specifies otherwise, Programs are to be conducted at locations chosen by Empower PMP and the Patient must attend all such locations as necessary to participate in the Program.
5.2 Empower PMP is not liable to the Patient for any failure to deliver any Program or part thereof on any date or time agreed with the Patient or as set out in the Contract.
5.3 Empower PMP agrees to at all times comply with all privacy legislation applicable in NSW and to keep private and confidential any personal details given to Empower PMP by the Patient in relation to or during the course of a Program.
5.4 The Patient must comply with all privacy legislation and must keep confidential any personal details to the same standard as Empower PMP is required to do in relation to any other of Empowers patients who attend a Program.
5.5 The Patient must keep confidential and not disclose the proprietary information or advice given to the Patient during the Patient’s participation in a Program. Regardless of this clause the Patient may disclose anything necessary to obtain medical treatment including pain treatment.
6.1 Empower PMP warrants:
(a) that the Program delivered to the Patient will comply with any description of the Program contained in the Contract or any marketing material produced by Empower PMP;
(b) that Empower PMP is authorised to deliver the Program and holds all necessary licences in respect of such delivery; and
(c) has, or will procure for delivery of the Program such persons who have, sufficient knowledge to deliver the Program to a proper professional standard.
6.2 Empower does not warrant, represent, promise or agree that the Patient’s participation in a Program or the carrying out by the Patient of any act or omission discussed or recommended in the Program will reduce, alleviate, remove or cure any pain suffered at any time by the Patient.
6.3 The Patient acknowledges, agrees, represents and warrants that:
(a) it is solely responsible for assessing the suitability or fitness of the Program for their needs regardless of any advice, experience, special skill, expertise or assistance from Empower PMP in buying the Program;
(b) it has not relied on any statement, representation, advice, information, experience, special skill, expertise, assistance or service provided by Empower PMP or anyone on its behalf in respect of the Program, other than those expressly contained in the Contract;
(c) it is not under any legal impediment of any kind that stops it being bound by these Conditions; and
(d) to the maximum extent permitted by law, it releases and indemnifies Empower PMP and its Agents from all Claims which may be brought against them and for any Claims by any third party arising out of or in connection with the delivery of or the participation in the Program or the Contract (or both) or arising out of any breach by the Patient of any warranty given under this clause.
6.4 Empower PMP will not consider any Claim unless:
(a) all information reasonably required by Empower PMP is provided by the Patient;
(b) the Patient is the original purchaser of the Program;
(c) the relevant Program has been paid for in full by the Patient;
(d) the Patient has complied with these Conditions; and
(f) the Patient notifies Empower PMP at the earliest possible date when they believe they have a Claim.
6.5 If through no cause of their own a Patient is unable to participate in a scheduled Program Empower PMP will give no refund of the Purchase Price but will permit the Patient to participate in the Program at a later time.
7. Limitation of Empower PMP liability
7.1 Subject to applicable legislation, Empower PMP’s liability in respect of any Claim arising from any Contract or its performance or any failure to perform the Contract including for breach of any condition, warranty or guarantee contained in the Contract is limited to:
(a) in respect of Programs, to any one or more of the following as Empower PMP may decide:
(i) replacement of the Programs or the supply of equivalent Programs; or
(ii) payment of the cost of conducting or acquiring equivalent Programs; or (b) in respect of services associated with the Program, to any of the following as Empower
PMP may decide:
(i) supplying the services again, or
(ii) payment of the cost of having the services supplied again.
7.2 Except as expressly provided in the Contract and to the maximum extent permitted by law, Empower PMP is under no liability to the Patient at law or in equity or pursuant to any legislation or otherwise for any Claims arising out of or in connection with the delivery of or participation in a Program or the Contract (or both), including any act or omission of Empower PMP or its Agents. Under no circumstances shall Empower PMP be liable for punitive damages or consequential loss.
7.3 The Patient acknowledges that participation in the Program may require the Patient to attend events held at various locations both public and private. The Patient agrees that Empower PMP is not liable in any way whatsoever for any personal injury or death or any loss or damage to property of the Patient or any third party which occurs in those locations or in transit to or from those locations and for the avoidance of doubt the Patient hereby releases Empower PMP from any such liability regardless of whether such injury, death, loss or damage was caused by or contributed to by the negligence, recklessness or intentional act of Empower PMP or its servants or agents.
8.1 Unless otherwise agreed in writing, the Contract is not a sale by sample even if any parts of the Program were shown to or discussed with the Patient before the date of the Contract.
9.1 If Empower PMP fails to deliver the Program to the Patient within six months of the date on which the Patient agrees in writing to participate in the Program and be bound by the terms of this Contract, the Patient cannot terminate the Contract unless the Patient delivers a written notice to Empower PMP requiring delivery of the Program and Empower PMP fails to deliver the Program within 2 months of the date of that notice.
10. Failure to perform
Empower PMP is not in breach and is not liable for any default or delay in performing its obligations under this Contract arising from circumstances beyond its reasonable control for the period of time during which and to the extent that Empower PMP is so affected. Empower PMP may terminate the Contract as a result of those circumstances without any liability whatever on its part from such termination.
11.1 All Notices must be:
(a) in writing;
(b) addressed to the recipient at the address a party may from time to time notify to the other in writing;
(c) delivered to the recipient by hand, pre-paid post or email.
11.2 Without limiting other means of providing service of a Notice, a Notice will be deemed duly received;
(a) if delivered by hand, when left at the address of the recipient;
(b) if sent by pre-paid post, three days after the date of posting;
(c) if sent by email, on the date that the email is received, provided that if a Notice is served or deemed served on a day which is not a Business Day, or after 5.00pm on any Business Day, that Notice is deemed received by the recipient at 9.00am on the next Business Day.
12.1 The Contract and these Conditions are governed by the laws of the State of New South Wales, Australia and the parties submit unconditionally to the non-exclusive jurisdiction of the courts of that State.
12.2 The Contract and these Conditions constitute the entire agreement between Empower PMP and the Patient in connection with sale and purchase of a Program. All representations, communications and prior agreements in relation to the Contract are merged into and are superseded by these Conditions.
12.3 These Conditions may only be amended or varied by agreement in writing signed by the Patient and Empower PMP.
12.4 The waiver by a party of any provision or breach by the other party of the Contract is not a waiver of any other provision or a breach of any other provision, or of any other subsequent breach of the same or any other provision, of the Contract. A waiver is only effective if it is in writing signed by the party granting it.
12.5 Should any of these Conditions become unenforceable in any jurisdiction either wholly or partly, that Condition shall be deleted to the extent necessary in that jurisdiction without affecting the validity or enforceability of any other provision or that provision in any other jurisdiction.