CLEAR ALIGNER EXCELLENCE

Clear Aligner Excellence - Subscription Agreement


The date of this Agreement is the date set out in item 1 of Schedule 1.

PARTIES

THE DENTIST as described in Item 2 of Schedule 1

(Dentist) 

AND 

CLEAR ALIGNER EXCELLENCE PTY LTD ATF Clear Aligner Excellence Unit Trust (ABN 65 823 067 032) of 18 North Drive, 236-262 East Boundary Road, Bentleigh East, VIC 3165 (CAE) 

 

Introduction

  • A. CAE sources dental and orthodontic appliances that are moulded to fit over teeth and is used to correct their alignment. CAE sources the best prices of such appliances from aligner companies and provides these prices to dental practitioners (Aligner Prices).
  • B. CAE sources and may connect Patients to suitably qualified practitioners who provide Dental Services.
  • C. The Dentist is qualified and registered to provide Dental Services to Patients. 
  • D. The Dentist wishes to subscribe to receive the Services, including the Aligner Prices and CAE agrees to provide the Services on the terms and conditions set out in this Agreement.  

The Parties agree

  1. Definitions

    In this Agreement (including the recitals in the Introduction) the following terms have these meanings unless a contrary intention appears:

    Applicable Laws includes any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law, any condition or any authorisation, and any decision, standard, directive, guidance, guideline or requirements of any Government Agency in any relevant jurisdiction.

    Associate Dentist means an associate dentist engaged by the Dentist as a sub-agent to assist in providing the Dental Services.

    Associate Dentist Fee means the fee payable by the Dentist in consideration for the provision of the Services to the Associate Dentist as set out in Item 5 of Schedule 1.

    Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia.

    Commencement Date means the date of this Agreement.

    Confidential Information means any and all technical and non-technical information that is confidential to a Party, not in the public domain and includes, without limitation, all data, details, plans, designs, concepts and specifications, inventions, computer software and course documents, figures, financials, costings, developments, results, technical advice, trade secrets, samples, specifications, statements, forms, processes, formulae, know-how, ideas, drawings, sketches, models, concepts, technology, business information, procurement, purchasing or manufacturing processes or requirements, Intellectual Property Rights, contracts, forecasts, sales and merchandising information, marketing plans, documents, agreements, techniques, commercial knowledge and other proprietary information in whatever form and however stored and regardless of whether the information is designated conspicuously or otherwise as confidential.

    Corporations Act means the Corporations Act 2001 (Cth).

    Dental Services means the dental services including orthodontic aligner solutions provided by the Dentist to Patients.

    GST means Goods and Services Tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time).

    Government Agency means any federal, state, territory, municipality or other political subdivision, administrative or judicial body, court, ministry, department, commission, authority, instrumentality, tribunal or agency or other governmental, quasi-governmental or regulatory authority or any self-regulatory organisation.

    Insolvency Event means the happening of one of the following events:

    1. (a) an application for winding up of a party or the appointment of a provisional liquidator to a party is made and not dismissed, stayed, enjoined or withdrawn within 21 days or any order is made or resolution passed for the winding up or dissolution of a party;
    2. (b) the appointment of an administrator, receiver or manager, or an inspector or investigator or any other corporate controller appointed under the Corporations Act other than as a result of a reorganisation;
    3. (c) a Party enters into a scheme of arrangement; 
    4. (d) execution is levied against the assets of a Party; or
    5. (e) a Party is unable to pay its debts as they fall due or states that it is unable to pay its debts as they fall due.

    Intellectual Property Rights means statutory and other proprietary rights in respect of trade marks, designs, patents, circuit layouts, copyrights, confidential information, know-how, moral rights and all other rights with respect to intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967, and includes the intellectual property of OrthoEd Pty Ltd (ACN 105 172 905) and Yohaku Pty Ltd ATF Sageman Trust trading as Savvy Dentist.

    Joining Fee means the fee payable by the Dentist to CAE in consideration for joining as a subscriber of the Services as set out in Item 5 of Schedule 1.

    Loss means all third party claim, action, dispute, proceeding, loss, damage, cost, expense or liability (including any legal costs on a full indemnity basis) and consequential and indirect loss and Losses has a corresponding meaning.

    Party means a party to this Agreement.

    Patient means an individual who receives the Dental Services from the Dentist. 

    Professional Registration means the professional registration that the Dentist must have and maintain in accordance with Applicable Laws as set out in Item 6 of Schedule 1.

    Services means the services provided by CAE set out in Item 4 of Schedule 1.

    Subscription Fee means the fee payable by the Dentist to CAE in consideration for the provision of the Services as set out in Item 5 of Schedule 1.

    Term means the term of this Agreement as set out in Item 3 of Schedule 1.

  1. Interpretation
    1. (a) In this Agreement, unless the context otherwise requires:
      1. (i) a word denoting the singular includes the plural and vice versa;
      2. (ii) any reference to dollars or $ means Australian dollars;
      3. (iii) a word denoting an individual or person includes a corporation, firm, authority, government body and vice versa;
      4. (iv) a word denoting one gender includes all genders;
      5. (v) a reference to a clause is to a clause of this Agreement;
      6. (vi) a reference to an agreement or document is to that agreement or document and, where applicable, any of its provisions as varied, novated, supplemented or replaced from time to time;
      7. (vii) a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
      8. (viii) a reference to a thing is a reference to the whole or any part of it, and a reference to a group of things is a reference to any one or more of them; and
      9. (ix) headings are for convenience of reference only and do not affect interpretation.
    2. (b) All headings in this Agreement have been inserted for the purpose of ease of reference only. They do not affect the meaning or interpretation of it.
    3. (c) Any schedule attached to this Agreement forms part of it.
  1. Services
    1. (a) CAE shall provide the Services on the terms and conditions set out in this Agreement.
    2. (b) The Dentist must assist CAE to provide the Services by complying with the reasonable requests of CAE to provide information required by CAE to provide the Services, including but not limited to:
      1. (i) name and contact details;
      2. (ii) Professional Registration details; and
      3. (iii) practice name, address and contact details.
    3. (c) The Dentist acknowledges and agrees that as part of the Services, CAE may provide the Dentist’s contact details to preferred dental aligner companies so that the Dentist may be contacted directly regarding the Aligner Prices. The disclosure of the Dentist’s contact details to preferred dental aligner companies will be in accordance with the Privacy Policy of CAE. The collection, use and disclosure of the contact details by the aligner companies will be to the least degree set out in the CAE Privacy Policy and otherwise in accordance with the Privacy Act 1988 (Cth) and the professional obligations of the aligner companies in relation to privacy.
  1. Subscription
    1. (a) As and from the Commencement Date and for the Term the Dentist agrees to subscribe to receive the Services. 
    2. (b) The Parties acknowledge and agree that the Dentist’s subscription is not exclusive and CAE may accept other persons or entities as subscribers of the Services.
    3. (c) The Parties are independent contracting parties, and nothing in this Agreement shall make any Party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other.
    4. (d) The Dentist acknowledges and agrees that the Dentist’s subscription is subject to the Dentist’s ongoing compliance with the terms and conditions set out in this Agreement and the requirements of any Applicable Laws, including the requirement to provide the Dental Services to a professional standard using best industry practices. CAE reserves the right to cancel the Dentist’s subscription and terminate this Agreement in accordance with clause 11(b) in the event that CAE becomes aware of a non-vexatious negative review or complaint regarding the Dentist and/or the Dentist’s dental practice.
  1. Associate Dentists
    1. (a) The Parties acknowledge and agree that the Dentist may engage an Associate Dentist as a sub agent to assist in providing the Dental Services and that the Associate Dentist will receive the Services as part of the Dentist’s subscription to the Services set out in this Agreement.
    2. (b) In consideration for the provision of the services to the Associate Dentist, the Dentist agrees that it will pay the Associate Dentist Fee.
    3. (c) The Dentist will procure that the Associate Dentist agrees to the Associate Dentist Terms and Conditions.
    4. (d) The Dentist warrants that the Associate Dentist:
      1. (i) has and will maintain his/her Professional Registration with the relevant registration authority and will provide copies of such Professional Registration documentation to CAE on demand; and
      2. (ii) will provide the Dental Services with due skill, care and diligence; and
      3. (iii) will perform the Dental Services to a professional standard using best industry practices and otherwise in accordance with the requirements of Applicable Laws.
    5. (e) The Dentist acknowledges and agrees that he/she is responsible for the provision of the Dental Services by the Associate Dentist.
    6. (f) The Dentist indemnifies CAE and any related entity, employee, contractor or agent of CAE (CAE and its Associates) and holds CAE and its Associates harmless from and against any Losses which may be asserted against, suffered or incurred by CAE and its Associates as a result of the provision of the Dental Services by the Associate Dentist.
  1. Dentist Professional Registration

    During the Term, the Dentist must ensure that:

    1. (a) the Dentist maintains his/her Professional Registration with the relevant registration authority and provide copies of such Professional Registration documentation to CAE on demand;
    2. (b) CAE is immediately notified in writing of any restrictions applying to the Dentist's Professional Registration;
    3. (c) the Dentist undertakes appropriate continuing education and professional development in accordance with Applicable Laws, and maintains a high standard of record keeping and otherwise acts in an ethical and professional manner; and
    4. (d) the Dentist provides CAE with all such information and documents as CAE may reasonably require at any time in respect of any matter which is relevant to this Agreement or the matters covered herein.
  1. Fees
    1. (a) In consideration for the provision of the Services, the Dentist agrees to pay to CAE the Joining Fee and the Subscription Fee specified in Item 5 of Schedule 1. 
    2. (b) The Joining Fee is payable by the Dentist to CAE on the Commencement Date. 
    3. (c) The Associate Dentist Fee (if any) is payable by the Dentist to CAE for each Associate Dentist engaged by the Dentist.
    4. (d) The Subscription Fee and the Associate Dentist Fee is payable by the Dentist to CAE monthly in advance on the first day of each calendar month. The Dentist agrees to pay the Subscription Fee pro rata for the period from the Commencement Date to the beginning of the next calendar month.
    5. (e) The Joining Fee, Subscription Fee and Associate Dentist Fee (if any) will be paid by automatic debit from the credit card of the Dentist, as nominated by the Dentist at the time of signing this Agreement.
    6. (f) The Dentist acknowledges and agrees that additional fees may be incurred by CAE in the course of providing the Services and that the Dentist must reimburse CAE for such additional fees (for example, laboratory fees). CAE acknowledges and agrees that any such additional fees will not be incurred prior to the written approval of the Dentist.
  1. Insurance
    1. (a) The parties must at their own cost for the duration of this Agreement (and a reasonable and prudent run off period after its expiration) maintain professional indemnity insurance to the value of $10million for each occurrence and public liability insurance to the value of $20million or other value as agreed by the parties in writing.
    2. (b) Upon request, either party must produce to the other party a certificate of insurance evidencing, to the reasonable satisfaction of the other party, that the cover required under clause 7(a) is in force.
    3. (c) The parties warrant that they will not act in any way that will have the effect of voiding the insurances set out in this clause 7.
  1. Warranties and Indemnities 
    1. (a)The Dentist warrants to CAE that;
      1. (i) it is duly authorised to enter into this Agreement;
      2. (ii) it is not the subject of an Insolvency Event;
      3. (iii) it has and will maintain its Professional Registration during the Term;
      4. (iv) there is no impediment for the Dentist to offer and provide the Dental Services to Patients;
      5. (v) it will provide the Dental Services with due skill, care and diligence;
      6. (vi) it will perform the Dental Services to a professional standard using best industry practices and otherwise in accordance with the requirements of Applicable Laws; 
      7. (vii) it will ensure that the Associate Dentist and any other individual or entity that assists the Dentist in providing the Dental Services shall comply with the terms and conditions set out in this Agreement;
      8. (viii) it has procedures and processes to manage and maintain quality control of the Dental Services in accordance with best industry practices;
      9. (ix) it holds and will maintain the professional indemnity insurance referred to in clause 7(a);
      10. (x) it is able to meet its obligations under this Agreement; and
      11. (xi) it shall comply with all Applicable Laws in relation to the provision of the Dental Services to Patients.
    2. (b) CAE warrants to the Dentist that;
      1. (i) it will provide the Services with due skill, care and diligence;
      2. (ii) it will perform the Services to a professional standard using best industry practices and otherwise in accordance with the requirements of Applicable Laws; 
      3. (iii) it validly exists and it is duly authorised to enter into this Agreement;
      4. (iv) it holds and will maintain the professional indemnity insurance referred to in clause 7(a); and
      5. (v) it is not the subject of an Insolvency Event.
    3. (c) The Dentist indemnifies CAE and any related entity, employee, contractor or agent of CAE (CAE and its Associates) and holds CAE and its Associates harmless from and against any Losses which may be asserted against, suffered or incurred by CAE and its Associates as a result of:
      1. (i) a breach by the Dentist of any term of this Agreement;
      2. (ii) the provision by the Dentist of the Dental Services;
      3. (iii) inaccurate or misleading Information provided by the Dentist to CAE and/or Patients; 
      4. (iv) any misrepresentations by the Dentist related to the Dental Services;
      5. (v) a breach by the Dentist of any Applicable Laws. 
  1. Dispute Resolution
    1. (a) If there is any dispute between the Parties concerning this Agreement then the Parties must attempt to resolve any such dispute by the dispute resolution procedure set out herein before resorting to alternative avenues, including litigation provided that nothing herein shall preclude a Party from seeking urgent interlocutory relief from a court.
    2. (b) The dispute resolution procedure is as follows:
      1. (i) if a Party believes that a dispute has arisen, it must serve a dispute notice on the other Party;
      2. (ii) the dispute notice must state that a dispute has arisen and identify in sufficient detail what the dispute is;
      3. (iii) the dispute notice must be provided to the other Party’s chief executive officer (or his/her nominee) following receipt of which the respective chief executive officers (or nominees) of the Parties shall meet to seek to resolve the dispute;
      4. (iv) if the dispute is not resolved by the Parties within 14 days of service of the dispute notice, the Parties may jointly request the appointment of a mediator and failing agreement, either Party may apply to the President of the Law Institute of Victoria to appoint a mediator;
      5. (v) once the mediator has accepted the appointment, the Parties must comply with the mediator’s instructions;
      6. (vi) if the dispute is not resolved within thirty (30) days of the appointment of the mediator, or any other period agreed by the Parties in writing, the mediation ceases and the dispute may be actioned as each Party independently determines; and
      7. (vii) the mediator may fix the charges for the mediation which must be paid equally by the Parties.
    3. (c) If the dispute is settled, all Parties must sign the terms of agreement and those terms are binding on the Parties.
    4. (d) The mediation is confidential and statements made by the mediator or the Parties as well as discussions between the participants to the mediation before, after or during the mediation cannot be used in any legal proceedings.
    5. (e) The Parties agree that the mediator will act as an aid to assisting them to resolve the dispute and not as a determiner or decider of any matter.
  1. Confidential Information
    1. (a) Each Party must keep the terms of this Agreement confidential and may only make disclosures in relation to this Agreement to its professional advisers under similar obligations of confidentiality or if compelled by law.
    2. (b) Any Confidential Information obtained by either Party in connection with the other Party must be kept confidential.
    3. (c) Except as required by law or the rules of any stock exchange, all press releases and other public announcements relating in any way to this Agreement must be in terms agreed by the Parties.
  1. Termination
    1. (a) Either Party may terminate this Agreement by providing the other Party sixty (60) days’ notice in writing of its intention to terminate this Agreement. 
    2. (b) Either Party may terminate this Agreement with immediate effect by giving notice in writing to the other Party, if the other Party:
      1. (i) is in material breach such that the breach cannot be remedied
      2. (ii) is in breach of this Agreement and fails to remedy the breach within fourteen (14) days of receiving written notice of the breach; or
      3. (iii) if an Insolvency Event happens to the other Party.
    3. (c) Expiration or termination of this Agreement does not affect:
      1. (i) any rights of the Parties which may have accrued before the date of termination; 
      2. (ii) the obligations of the Dentist or warranties made by the Dentist in respect of the Dental Services; or  
      3. (iii) the rights and obligations of the Parties which survive termination or expiry of this Agreement.
    4. (d) Upon termination or expiry of this Agreement for any reason: 
      1. (i) each Party must return to the other Party all Confidential Information and any Intellectual Property of the other Party, or if not capable of return, destroy it and certify its destruction to the other Party; and
      2. (ii) the Dentist must return to CAE any marketing materials or CAE’s Intellectual Property which the Dentist has retained.
  1. GST
    1. (a) If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply.  The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
    2. (b) If a Party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement. 
    3. (c) This clause is subject to any other specific agreement regarding the payment of GST on supplies.
  1. No Service Guarantee

    The Dentist acknowledges and agrees that nothing in this Agreement guarantees, and CAE makes no warranties, that Dental Services offered by the Dentist will be engaged by Patients or the volume of such engagement.

  1. Notices
    1. 15.1 Service of notices

      A notice, demand, consent, approval, invoice or communication under this agreement (Notice) must be:

      1. (a) in writing, in English and signed by a person duly authorised by the sender; and
      2. (b) hand delivered or sent by prepaid post or email to the recipient's address for notices specified in Schedule 1, as varied by any Notice given by the recipient to the sender.
    2. 15.2 Effective on receipt

      A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

      1. (a) if hand delivered, on delivery;
      2. (b) if sent by prepaid post, four (4) Business Days after the date of posting (or ten (10) Business Days after the date of posting if posted to or from a place outside Australia); and
      3. (c) if sent by email, when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee,

      but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

  1. General
    1. 16.1 Variation and Assignment
      1. (a) This Agreement can only be varied, supplemented, replaced or novated by another document signed by the Parties. 
      2. (b) The Dentist cannot assign, charge, encumber or otherwise deal with any of its rights or obligations under this Agreement, or attempt or purport to do so, without the prior written consent of CAE, which consent may be withheld in CAE’s absolute discretion.  CAE can assign or novate this Agreement at its sole discretion.
    2. 16.2 Governing law
      1. (a) This Agreement is governed by the law in force in Victoria, Australia.
      2. (b) Each Party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia and any court that may hear appeals from any of those courts, for any proceedings in connection with this Agreement, and waives any right it might have to claim that those courts are an inconvenient forum.
    3. 16.3 Legal Advice

      Each Party has had the opportunity to obtain, and have obtained, independent legal advice before entering into this Agreement.

    4. 16.4 Giving effect to this Agreement

      Each Party must do everything (including execute any document) and must ensure that its employees and agents do everything (including execute any document) that the other Party may reasonably require to give full effect to this Agreement. 

    5. 16.5 Entire Agreement
      1. (a) This Agreement contains the entire agreement between the Parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. 
      2. (b) Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.
      3. (c) Any provision of this Agreement which is enforceable or partly enforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.
    6. 16.6 Waiver

      A right or a provision under this Agreement may only be waived, varied or replaced by writing signed by or on behalf of the Parties to be bound by it and no act, omission or delay by any Party will constitute a waiver of a right.

    7. 16.7 Counterparts

      This Agreement may be executed in any number of counterparts (including by electronic means) and all of those counterparts taken together constitute one and the same instrument.

 

EXECUTED as an AGREEMENT

Executed by CLEAR ALIGNER EXCELLENCE
PTY LTD ATF Clear Aligner Excellence Unit
Trust (ABN 65 823 067 032) in accordance with
Section 127 of the Corporations Act 2001:

 )
)
)

Director

Director/Secretary
Dr. Jesse Green

Name

 Dr. Geoffrey Hall

Name

 

Schedule 1

 

  1. Item 1 Date of Agreement

{{order_date}}
  1. Item 2 Dentist

Name: {{billing_first_name}} {{billing_last_name}}  

Address: {{billing_address_1}}, {{billing_address_2}}, {{billing_city}}, {{billing_state}}, {{billing_country}}, {{billing_postcode}}   

Email: {{billing_email}}  

ABN/ACN:   

Practice phone number:   

Mobile phone number: {{billing_phone}}  
  1. Item 3 Term

The period commencing on the Commencement Date and continuing until termination of this Agreement in accordance with clause 11.
  1. Item 4 Services

CAE will provide the following services:

  • obtain discounts from various aligner companies for the Dentist;
  • sales training to the Dentist to assist in converting potential Patient leads to Patients engaging the Dentist to provide the Dental Services; and
  • education to Dentists in relation to clear aligner products and services and practice management via monthly webinars.

As part of the provision of the Services, CAE may also:

  • provide general marketing services to source Patients seeking the Dental Services; 
  • refer Patients to the Dentist for the provision of the Dental Services; and/or
  • other services as agreed by CAE and the Dentist in writing from time to time. 
  1. Item 5 Fees

Joining Fee: Not applicable

Subscription Fee:

Associate Dentist Fee: $300 per month per associate dentist
  1. Item 6 Professional Registrations

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Document name: Clear Aligner Excellence - Subscription Agreement
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