Except where expressly stated, we make no representations about the currency, accuracy, suitability or reliability of any content information, material and/or functionality (including, without limitation, any data, information, material, text, images (moving and still), sound, graphics, software, hyperlinks, logos and trademarks, services and any other material contained in, provided as a result of, or in connection with your access to and/or use of, the Website) (“Content”).
All Content made available through the Website in any way (including, without limitation, on the Website, as an email, or any other transmission):
- is, to the full extent permitted by law, provided “as is” and without warranties of any kind (including, without limitation, express or implied warranties, including implied warranties of merchantability and fitness for any particular purpose); and
- is provided as general information only and should not be relied upon in place of professional or expert advice.
Without limiting what we have said above, to the extent permitted by law we, do not warrant that the function of, or access to, the Website will be uninterrupted or error free, that any defects will be corrected or that any website or server which stores and transmits any Content will be free of viruses or any other harmful components. We accept no responsibility for or liability in respect of such interruption, errors, defects, viruses or harmful components.
You, as the user of or visitor to the Website, will assume the entire cost of any verification, repair, maintenance, or correction of any relevant eContent which is required.
To the full extent permitted by law, in so far as our liability may not be excluded, such liability is limited, at our discretion, to the resupply of any service again or payment of the cost of having the service performed again, or the replacement or repair of goods or payment of the cost of having the goods replaced or repaired, or the payment of a maximum aggregated amount (aggregated across all claims) of $5.00.
You further agree to the following:
- You grant us a perpetual, royalty-free, non-exclusive, unrestricted world-wide licence to use, copy, sub-licence, re-distribute, adapt, transmit, publish and/or broadcast, publicly perform and display in any media whether now known or in the future created, any Content posted to or on or submitted by you to the Website, and you warrant and represent that you own or have the necessary or required licenses, rights, consents and permissions to grant such licence.
- You warrant that you have all the necessary or required licences, rights (including without limitation copyright, privacy, moral and intellectual property rights), consents and permissions to submit or post content on to or on the Website and that all Content is true and accurate at the time of submission/posting, is not illegal, threatening, discriminatory, harassing, abusive, offensive, defamatory, racially or sexually vilifying, obscene, pornographic or indecent or in contempt of any court or parliament and does not contain any computer virus.
- You are legally responsible for all eContent that you submit to the Website.
- We reserve the right to refuse access to any person, and to edit, block or delete Content submitted or posted to or on the Website by any person for any reason without notice, and we may terminate or restrict your access or use of part or all of the Website.
- You consent (and warrant that you have all rights necessary to grant such consent) to us doing all things to and with the Content you submit to the Website, including: (i) modifying and altering the Information; (ii) not attributing you or any person as the author of the Content, or attributing any other person as the author of the Content; and (iii) modifying, altering or using the material in any way in our discretion, even if this is done in a way that would constitute derogatory treatment of the Information or would affect the reputation of the author of the Information.
We have provided links within this Website and have also provided links within emails for the user’s convenience and reference. To the extent permitted by law, we do not endorse nor are we responsible or liable for any information, material, products and/or services associated with these links, and you use them at your own risk.
To the extent permitted by law, we do not accept any responsibility or liability for material contained in any website linked to this Website.
All eContent is protected by Australian and international law, including without limitation laws with respect to copyright, trade marks and other forms of intellectual property.
We own, or have licences under or authorisations with respect to, all intellectual property rights in and in relation to the Website and in and in relation to the Content.
When you access and/or use the Website, you agree as follows:
- You may not modify it without our prior written permission.
- Any copyright notice or mark appearing on any Content must be included on any copy you make.
- You may save a local copy of or print Content from the Website for your own personal information and to inform others about it, but you may not charge any fee for any use, and all commercial use or exploitation of the Website or any Content is expressly prohibited.
- You must keep all Content intact and in the same form as presented on the Website.
- You must not reproduce, republish or otherwise make available any Content on the internet or through any means, including by other publicly accessible media (including without limitation newspaper, journals, television or radio) without our prior written consent.
- Activities you must not engage in include, without limitation:
- Accessing or using of the Website by any means that is contrary to our interests (including without limitation to facilitate a means of encouraging users of the Website to use another website offering services similar to those on the Website); and
- Making any commercial use of material on this Website, unless such use is authorised in writing by us;
- Making a copy, modification, adaptation or reselling or redistributing any material on this Website;
- Making any form of representation, including linking or framing, that could mislead or deceive a person into believing that the material is from a source other than the Website;
If you are a registered subscriber of the Website, you may receive or establish an account which may include login details such as username and password (“Account”). You are solely responsible for maintaining the confidentiality and security of your Account. You must not reveal your Account information to anyone and you must not use anyone else’s Account.
You are entirely responsible for all activities that occur on or through your Account, and you agree to immediately notify us of any unauthorised use of your Account or any other breach of security. We shall not be responsible for any losses arising out of the unauthorised use of your Account.
You must not access or attempt to access an Account that you are not authorised to access. You agree not to modify any software used or provided in or in connection with the Content or the Website (“Software”) in any manner or form, or to use modified versions of the Software, for any purposes including obtaining unauthorised access to the Website.
You should be aware that there are inherent risks associated with the transmission of information via the internet, and we cannot guarantee the safe and secure transmission of information to or from us unless we explicitly say so in writing for a particular interaction.
We take no responsibility and will not be liable for the privacy and security of the above information after the user has “hyperlinked” to another website.
These standard terms and conditions are applicable to all contracts for services entered into by BHVI that fall within the CEO’s delegation from time to time.
B. WARRANTIES AND INDEMNITY
(a) The Consultant represents and warrants to BHVI that:
(i) nothing authored, conceived, created, developed, improved, produced or
otherwise brought into existence by the Consultant in carrying out the
Services (“Work Products”) will infringe the rights (including
intellectual property rights) of others;
(ii) any use of such Work Products or other material that the Consultant may
provide, make available to BHVI, or use during the provision of the
Services will not infringe the rights (including without limitation, the
copyright or other intellectual property rights) of others;
(iii) the Consultant has not entered into any licence, agreement, arrangement
or understanding with any person which conflicts with any of the rights
granted to BHVI under the terms of this Agreement; and
(iv) all of the information that the Consultant has provided to BHVI in relation
to the subject matter of this Agreement is true, correct and not
(b) The Consultant releases and indemnifies and will keep released and indemnified
BHVI, its directors, officers, employees, contractors and agents from and against
any loss (including legal costs and expenses on a full indemnity basis) or liability
incurred by any of them arising from any claim, demands, suit, action or
proceeding by any person against any of those indemnified where such loss or
liability arose out of, in connection with, or in respect of any:
(i) breach of the terms of this Agreement by the Consultant;
(ii) unlawful, negligent or otherwise wrongful act or omission by the
(iii) warranties given by the Consultant proving to have been false, misleading
or inaccurate when made.
(c) The Consultant acknowledges and accepts that the indemnities provided under
Section B (b) are continuing obligations, separate and independent of the
Consultant’s other obligations and will survive the expiration or, where relevant,
earlier termination, of this Agreement.
C. INTELLECTUAL PROPERTY RIGHTS
(a) For the purposes of this clause C, “Intellectual Property Rights” means all
present and future rights throughout the world in and in relation to copyright,
inventions, patents, trade marks, designs, circuit layouts, trade secrets, know-
how, confidential information and other results of intellectual activity in the
industrial, commercial, scientific, literary or artistic fields, whether or not
registrable or registered.
(b) The Consultant will promptly disclose to BHVI:
(i) all ideas, inventions, concepts, improvements, know-how, developments,
procedures, processes, projects, methods, programs and innovations in
whatever form which may be made or conceived by the Consultant, alone
or with others, arising wholly or in part from the use of BHVI’s meetings,
materials, facilities or ideas or any information regarding the business of
BHVI which may be received by the Consultant in the course of carrying
out the Services (“Inventions”); and
(ii) all works including but not limited to all documents, drafts, records,
reports, notes, protocols, procedures, research, data, databases, results,
graphs, tables, drawings, sketches, designs, models, samples, devices,
plans, and any other materials created by the Consultant, or resulting
wholly or in part from the use of BHVI’s meetings, materials, facilities or
ideas in the course of carrying out the Services (“Materials”).
(c) The Consultant agrees that BHVI owns all rights (including all Intellectual
Property Rights) in and in relation to all work produced, created or made by the
Consultant in the course of carrying out the Services (including without limitation
all Inventions and Materials) (“Deliverables”) and the Consultant acknowledges
that all Inventions and Materials vest in BHVI on their creation, conception or
coming into existence.
(d) The Consultant agrees to assign and hereby assigns and transfers to BHVI or to
another party as directed by BHVI all of the Consultant’s worldwide right, title
and interest (including all Intellectual Property Rights) in and to all Deliverables
produced by the Consultant in the course of carrying out the Services, including
(i) all Inventions, effective from the instant of conception; and
(ii) all Materials, effective from the instant of creation.
(e) The Consultant hereby irrevocably consents to any acts or omissions of BHVI, its
directors, officers, staff, employees, agents, contractors, licensees, and
permitted assigns which would, but for such consent, constitute an infringement
of any of the Consultant’s Moral Rights in the Materials, to facilitate BHVI to
freely use, reproduce, communicate, modify and exploit all Materials, including:
(i) materially altering, amending, deleting or modifying any Materials;
(ii) relocating or destroying any Materials;
(iii) omitting to attribute authorship of any Materials to the Consultant, or
attributing authorship other than to the Consultant; or
(iv) dealing with the Materials in any manner whatsoever.
For the purposes of this Agreement, “Moral Rights” means the rights of
integrity, rights of attribution of authorship and rights not to have authorship
falsely attributed as defined under Part (IX) of the Copyright Act 1968 (Cth) and
other analogous rights which may now or in the future exist in respect of any
work (as that term is defined in the Copyright Act 1968) produced by the
Consultant in the course of carrying out the Services.
(f) The Consultant agrees to do all things necessary (including by signing any
(i) perfect BHVI’s exclusive title to all Deliverables (or parts thereof)
produced by the Consultant during the Consultant’s engagement by BHVI
(including without limitation, all Inventions and Materials therein);
(ii) obtain available protection, including through the patent system, for any
Inventions and Materials; and
(iii) give full effect to the assignments under this Agreement,
and for those purposes the Consultant irrevocably appoints each of BHVI and the
CEO of BHVI to be the Consultant’s attorney in the Consultant’s name, and on
the Consultant’s behalf to execute all such instruments and do all such things
and generally to use the Consultant’s name for the purpose of assuring to BHVI
the full benefit of provisions of this clause.
(g) At all times, the Consultant agrees to:
(i) advise BHVI as soon as practicable of any infringement or suspected
infringement of BHVI’s Intellectual Property Rights of which the Consultant
becomes aware and the Consultant further agrees to comply with any
instructions given by BHVI in respect of such infringement or suspected
(ii) at BHVI’s expense, assist BHVI’s legal advisers, attorneys and in-house
counsel in legal and intellectual property matters relating to the Services
and further agrees that any communications with such persons will be
confidential and privileged to the same extent that they would be if the
Consultant were an employee of BHVI.
(a) Access to Confidential Information
The Consultant acknowledges and agrees that whilst performing the Services, the Consultant will, or may have access to confidential, privileged, legal work product or trade secret information (“Confidential Information”) of BHVI and organisations associated with BHVI (defined below as “Affiliated Organisations”), the unauthorised disclosure of which could cause serious and irreparable financial and business damage to the owner of the information.
(b) Disclosure of Information
The Consultant agrees and covenants with BHVI as follows:
(i) The Consultant will not, during the Consultant’s engagement by BHVI or any time
subsequent to the Consultant’s engagement, directly or indirectly:
a. disclose to BHVI or any of its Affiliated Organisations or induce BHVI or any of its
Affiliated Organisations to use any proprietary information or trade secrets of
b. disclose Confidential Information to any person (disclosures mandated by law
excepted) unless expressly permitted to do so by, and subject to the requirements
c. store, reproduce or use the Confidential Information for any purpose other than
any purpose expressly authorised or permitted by BHVI; or
d. submit any material or any other thing that relates to BHVI or any of its Affiliated
Organisations, or the Consultant’s work with BHVI, for publication or for any form
of dissemination to persons not employed by BHVI (in any form of media) unless:
i. it is in the course of the Consultant’s engagement by BHVI and it is for the
benefit of BHVI or an Affiliated Organisation;
ii. the Consultant has first submitted the material or other thing in the form in
which it is to be published or otherwise disseminated to the CEO of BHVI; and
iii. the Consultant has obtained the written approval of the CEO of BHVI to the
publication or other dissemination prior to submitting the material or other
thing for publication or other dissemination.
(ii) The Consultant will, during the Consultant’s engagement by BHVI and up to three (3)
a. protect: use all reasonable care, including by following BHVI’s reasonable
instructions, to protect and maintain the security and confidentiality of the
Confidential Information against any loss, damage or unauthorised access,
disclosure or use.
b. inform: notify BHVI in writing as soon as possible after learning of any real or
potential loss, damage or unauthorised access, disclosure or use, including any
disclosure mandated by law, in relation to the Confidential Information;
c. discontinue and return: upon termination of the Consultant’s engagement by
BHVI, or immediately after being requested by BHVI to do so, discontinue all
storage, use and/or disclosure of the Confidential Information and, in accordance
with BHVI’s written instructions, return to BHVI all copies of the Confidential
Information in the Consultant’s custody or control, and, if requested by BHVI,
certify by statutory declaration that this has been done.
(iii) For the purposes of this Agreement, “Confidential Information” will also include but not
be limited to:
a. the terms of this Agreement;
b. information about persons to whom the Consultant has or will be exposed to while
engaged by BHVI; and
c. information developed by the Consultant whilst performing the Services,
but does not include any information which is publicly known or are already known to
Consultant (in each case other than as a result of a breach of an obligation of
confidence owed with respect to the information).
(iv) For the purposes of this Agreement, “Affiliated Organisations” means the
organisations with which BHVI is ordinarily associated, including but without limitation:
a. Related entities of BHVI (as defined by the Corporations Act 2001 (Cth)); and
b. Vision CRC Limited (ABN 64 106 265 114); Vision CRC (USA) Inc. (C4272307),
Brien Holden Vision Institute Foundation (ABN 86 081 872 586); Brien Holden
Vision Pty Ltd (ABN 85 138 617 062); Brien Holden Vision Technology (Guangzhou)
Co., Ltd (BRN 440101400106682); and the Trustees of the Brien Holden Vision
Institute Foundation (Africa) Trust (Registration ID No. IT2201/2000/PMB).
E. TERMINATION AND VARIATION
(a) BHVI may terminate this Agreement:
(i) immediately upon notice in writing to the Consultant, if the Consultant is in
breach of this Agreement; or
(ii) on seven (7) days’ notice without cause and in the absolute discretion of BHVI.
(b) The Consultant may terminate this Agreement on two months’ notice to BHVI, without
cause and in the absolute discretion of the Consultant.
(c) The parties may otherwise terminate this Agreement by mutual written agreement at
(d) On termination or expiry of this Agreement for any reason, the Consultant will
immediately return to BHVI all documents, records, storage media, security cards, keys
and other items then in the Consultant’s possession or under the Consultant’s control
that belong or otherwise relate to BHVI or its business, including all copies of
proprietary information belonging to BHVI regardless of the medium on which it is
copied or stored, all data, drawings, photographs, graphs, tables, charts, documents,
correspondence, specifications, blueprints, notebooks, reports, sketches, formula,
computer programs, software, software documentation, sales data, business manuals,
price lists, customer lists, samples, and all other materials and copies, including product
and other embodiments relating in any way to the business of BHVI, made fully or in
part, or obtained by the Consultant during the Consultant’s engagement by BHVI,
whether or not such things form part of BHVI’s Confidential Information (as defined in
the Confidentiality Deed).
(e) All rights and obligations which have accrued up the date of termination or expiry, or
any other rights or obligations which under the terms of this Agreement are expressed
to, or which by their nature, survive termination or expiry, will not be affected by
termination or expiry.
(f) This Agreement may be varied by agreement in writing between the Parties.
F. LEGAL ADVICE
The Consultant acknowledges that in relation to this Agreement the Consultant has received independent legal advice or has had the opportunity of obtaining independent legal advice and has elected not to do so.
G. FURTHER ASSURANCES
The Consultant agrees to do all acts, including the execution of documentation, necessary or desirable, as requested by BHVI, to give effect to the arrangements contemplated by this Agreement.
If any condition of this Agreement or the application of such condition is invalid and unenforceable, the remainder of this Agreement will not be affected and each remaining condition of it will be valid and enforced to the fullest extent permitted by law.
This Agreement will be construed under the laws of New South Wales, Australia. BHVI and the Consultant irrevocably submit to the exclusive jurisdiction of any court having jurisdiction in New South Wales, Australia.
(a) Subject to any express provision to the contrary in this Agreement no failure to exercise
or delay in exercising a right or power by a party will operate as a waiver of that right
or power nor preclude the future exercise of that right or power by that party.
(b) A party will not assign its rights under this Agreement without the prior written consent
of the other.
(c) Nothing in this Agreement creates a relationship of employment between the consultant
and BHVI other than one of independent contractor providing services to BHVI.
(d) This Agreement comprises the entire agreement of the parties in relation to its subject
matter, superseding all previous representations and agreements.
(e) This Agreement may be executed in any number of counterparts and each of those
counterparts taken together will constitute one and the same instrument.
(f) References to a person include a company or any other entity, and its successors and
permitted assigns; references to documents/legislation include references to that
document/legislation as subsequently modified in writing; defined terms shall have the
same meaning regardless of the grammatical form in which the defined term is used in
this Agreement; the single includes the plural, and vice versa; use of the word
“including” does not limit the concept to the specific items listed.
Last reviewed: 15 November 2019