Participant Terms and Conditions

Last Updated: 25 June 2024

These Licence Terms and Conditions (“Terms“) constitute a legally binding agreement (“Agreement“) between you and Targeted Motor Control Pty Ltd ABN 16 675 247 908 (“TMC“) governing your participation in online training package conducted by TMC (“Training”) and subsequent use of the training materials and Intellectual Property Rights in the Targeted Motor Control® Screening Tool.

In this Agreement, “you” and “Participant” are used interchangeably as the physiotherapist, early childhood educator or teacher, or other health care professional accepting these terms and participation in the Training.

1. Background

TMC is the authorised provider of online Training for the teaching of the Targeted Motor Control^® Screening Tool to physiotherapists, early childhood educators and teachers, and other health care professionals and is authorised to sell the online Training Resources to Participants.
TMC has the exclusive rights to copyright, trade marks, know-how and other Intellectual Property Rights in relation to the Targeted Motor Control^® Screening Tool and online Training Resources.
The Participant wishes to participate in an online Training teaching the Targeted Motor Control^® Screening Tool and TMC has agreed to provide the online Training to the Participant on the terms and conditions of this Agreement.
TMC has also agreed to grant to the Participant a right and licence in respect of the Intellectual Property Rights in the Licensed IP on the terms and conditions of this Agreement.

2. Training

Online Training
1. For individual Participants, subject to the payment of the Licence Fee applicable for individual Participants and receipt of that Licence Fee by TMC, TMC agrees to provide the Participant with the online Training as delivered online.
2. For Participants covered by a Group Licence, subject to the payment of the Licence Fee applicable for Participants covered by a Group Licence and receipt of that Licence Fee by TMC, TMC agrees to provide the Participants with the online Training as delivered online.
3. TMC must provide all Training Resources that are reasonably necessary to provide the online Training.
4. You must have adequate internet connectivity and web access to receive and participate in the Training which you acknowledge is online Training.
5. TMC must ensure that it will:
  1. deliver the online Training to a professional and competent standard;
  and otherwise provide the online Training in accordance with the provisions of this Agreement.

3. Grant of Licence by TMC

Initial Licence
1. Subject to your compliance with these Terms, and in consideration of the payment of the Licence Fees, on and from the Effective Date, TMC hereby grants to the Participant (or each Participant holding a Group Licence as applicable) a personal, non-transferable, non-exclusive right and licence to:
  1. use the Licensed IP only in connection with the Participants performance of services utilising the Targeted Motor Control® Screening Tool to screen and identify children ‘at-risk’ of developmental delay, in particular, motor delay;
  2. with no right to sub-licence the use of the Licensed IP to any person,
  during the Licence Term.
2. The initial licence granted in clause 3.1(a) entitles the Participant (or group of Participants holding a Group Licence as applicable) to utilise the TMC Platform to create ten Reports during the Licence Term without additional charge. Should the Participant require access to more than ten Reports during the Initial Term, the Participant must pay the Additional Report Fee to TMC.
Subsequent Licence
1. Subject to your compliance with these Terms, and in consideration of the payment of the Renewal Fee on or before the expiry of the Licence Term, TMC hereby grants to the Participant (or each Participant holding a Group Licence as applicable) a personal, non-transferable, non-exclusive right and licence to:
  1. use the Licensed IP only in connection with the Participants performance of services utilising the Targeted Motor Control® Screening Tool to screen and identify children ‘at-risk’ of developmental delay, in particular, motor delay;
  2. with no right to sub-licence the use of the Licensed IP to any person,
  during the Subsequent Term.
2. The subsequent licence granted in clause 3.2(a) entitles the Participant (or each Participant holding a Group Licence as applicable) to utilise the TMC Platform to create Reports during the Subsequent Term but must pay the Additional Report Fee to TMC for each Report.
Ownership
1. The parties acknowledge that TMC has the exclusive rights and licence to commercialise the Licensed IP throughout the world.
2. The Participant must not:
  1. directly or indirectly contest or impair the TMC’s rights in relation to the Licensed IP;
  2. represent that they have any ownership interest in the Licensed IP.
3. The parties agree that all right, title and interest in and to all Improvements based upon or to the Licensed IP created or caused to be created by the Participant after the Effective Date will vest immediately upon creation solely and exclusively in TMC.
4. The Participant must on demand by TMC, perform all such acts and execute all such agreements, assurances and other documents and instruments as TMC reasonably requires either to perfect the rights and powers afforded, created or intended to be afforded or created by this Agreement or to give full force and effect to, or facilitate the performance of, the transactions provided for in this Agreement.

4. Participant Obligations

Restrictions
You must not:
1. use the Licensed IP for any purpose other than as specified in clause 3.1(a);
2. share, disseminate, or publish any step-by-step instructional material on how to perform the Targeted Motor Control® Screening Tool by way of images and/or words, or other means directly or indirectly such that the reader/viewer would not need to participate in or attend online Training in order to perform the Targeted Motor Control® Screening Tool;
3. engage in any misleading or deceptive conduct or conduct likely to be misleading or deceptive in using the Licensed IP or Reports;
4. use the Targeted Motor Control® Screening Tool and Reports and any changes, modifications, Improvements to the Targeted Motor Control® Screening Tool or Reports under any other name;
5. copy, adapt, reproduce, share or publish any of the Training Resources or Reports without the prior written approval of TMC;
6. teach the Training or use the Training Resources to teach the Targeted Motor Control® Screening Tool to third parties;
7. publish video recordings of your patients undergoing Targeted Motor Control® Screening Tool;
8. do anything which could detract from the reputation and goodwill in the marketplace of itself, TMC, the Licensed IP, or any Products, methods or processes resulting from the Licensed IP, including Reports.
Participant Responsibilities
The Participant must:
1. only use the Licensed IP for the performance of services utilising the Targeted Motor Control® Screening Tool to screen and identify children ‘at-risk’ of developmental delay, in particular, motor delay;
2. only refer to the Targeted Motor Control® Screening Tool by that name and not any other name;
3. ensure that in relation to the use of the Licensed IP or otherwise in relation to this Agreement, the Participant complies with all applicable Laws and standards;
4. comply with the provisions of the Privacy Act 1988 (Cth) and ensure each patient consents to the use of Personal Information as required under this agreement, including the permitted use and disclosure under clause 6.4(f);
5. act towards TMC conscientiously and in good faith;
6. ensure that the use of the Licensed IP and Targeted Motor Control® Screening Tool is performed:
  1. with all due care and skill and in a good and workmanlike manner;
  2. in a manner which meets all legal requirements and specifications of any quality or other professional standards and all product liability laws applicable where the particular Product is to be used; and
  3. in accordance with highly professional and ethical standards of behaviour; and
7. accept all responsibility for using and interpreting the results of the Targeted Motor Control® Screening Tool and Reports and acknowledges and agrees that all such use of results of the Targeted Motor Control® Screening Tool and Reports in the assessment and treatment of patients is at the Participants sole risk.

5. Publication

Social media, website and forums
TMC encourages and consents to the publication on your social media, website and physiotherapy forums of testimonials regarding the Targeted Motor Control® Screening Tool, but must not include any video recordings or instructions on how to perform the Targeted Motor Control® Screening Tool or Reports. You are responsible for compliance with the provisions of the Privacy Act 1988 (Cth) and for ensuring that any photographs published are of high quality.
Advertising by TMC
1. The Participant hereby grants TMC the perpetual right to advertise and display the Participant’s practice name on the TMC Platform and social media accounts as a licensed practitioner of the Targeted Motor Control® Screening Tool.
2. The Participant agrees to the following conditions regarding the use of their practice name by TMC for advertising and publicity purposes:
  1. TMC may use the Participant’s practice name, logo, and any related trademarks or service marks in marketing materials, including but not limited to online advertisements, social media posts, email campaigns, and promotional content on the TMC Platform.
  2. The Participant will be identified as a licensed practitioner of the Targeted Motor Control® Screening Tool, and TMC may provide links to the Participant’s practice website or social media pages where applicable.
  3. The Participant retains the right to review and request modifications to any specific use of their practice name, logo, or trademarks prior to publication. Such requests must be made within a reasonable time frame upon notification by TMC.
  4. TMC agrees to remove or modify any use of the Participant’s practice name, logo, or trademarks upon reasonable request by the Participant.
3. The Participant acknowledges that this publicity and advertising provision is an integral part of the benefits provided under this agreement and consents to the use of their practice name, logo, and any related trademarks or service marks in marketing materials in accordance with the terms outlined herein.
The restrictions in clause 6 below regarding non-disclosure of the Confidential Information do not apply to the publication of the photographs and video recordings described in clause 5.1.

6. Confidentiality

Ownership of Confidential Information
The Confidential Information is the property of the Discloser.
Use of Confidential Information
A Recipient must use the Confidential Information solely for the purpose for which it was disclosed, and for no other purpose whatsoever, without the prior written consent of the Discloser, which the Discloser shall be at liberty to give or to decline to give in its unfettered and uncontrolled discretion.
No Announcement or Other Disclosure of Transaction
Except as permitted by clause 6.4, each party must keep secret and confidential, and must not, disclose, communicate, or otherwise make known to any person any part of the Confidential Information, and must procure that each Affliliate and Associate and each of their respective Representatives, keeps confidential, the Confidential Information and the existence of and the terms of this Agreement and all negotiations between the parties in relation to the subject matter of this Agreement.
Permitted Disclosure
Nothing in this Agreement prevents a person from disclosing matters referred to in clause 6.2:
1. if disclosure is required to be made by law or the rules of a recognised stock or securities exchange and the party whose obligation it is to keep matters confidential or procure that those matters are kept confidential:
  1. has not through any voluntary act or omission (other than the execution of this Agreement) caused the disclosure obligation to arise; and
  2. has before disclosure is made notified each other party of the requirement to disclose and, where the relevant law or rules permit and where practicable to do so, given each other party a reasonable opportunity to comment on the requirement for and proposed contents of the proposed disclosure;
2. if disclosure is made by way of a written announcement the terms of which have been agreed in writing by the parties prior to the making of the announcement;
3. if disclosure is reasonably required to enable a party to perform its obligations under this Agreement;
4. to any professional adviser of a party who has been retained to advise in relation to the transactions contemplated by this Agreement or to the auditor of a party;
5. to any financier who has made a bona fide proposal to provide finance to a party in relation to the transactions contemplated by this Agreement;
6. in the case of TMC, for future research using the copyright and data in the information entered by the Participant into the TMC Platform but only when such information is de-identified and does not contain Personal Information of a patient;.
7. with the prior written approval of each party other than the party whose obligation it is to keep those matters confidential or procure that those matters are kept confidential; or
8. where the matter has come into the public domain otherwise than as a result of a breach by any party of this Agreement.
Damages inadequate
The Recipient acknowledges that:
1. damages may be an inadequate remedy to the Discloser in the event of any breach of clause 6.2 or 6.3 occurring, and that only injunctive relief or some other equitable remedy might be adequate to properly protect the interests of the Discloser; and
2. the Discloser would not have entered into this Agreement but for the acknowledgment made by the Recipient in paragraph 6.5(a).

7. Term and Termination, Suspension and other Measures

Term of Agreement
This Agreement shall be effective on the Effective Date and expires 20 years later, unless terminated in accordance with its terms.
Termination by TMC
Without limiting our rights specified below, TMC may terminate this Agreement at any time by giving you thirty (30) days’ notice via email to your registered email address:
1. if the Participant breaches any of its material obligations under this Agreement (or a number of breaches that collectively constitute a material breach);
2. an Event of Default occurs,
and if remediable in the reasonable opinion of TMC, the Participant fails to remedy the breach within five Business Days of written notice by the TMC requiring the breach to be remedied.
Event of Default
For the purposes of this Agreement, each of the following shall be an Event of Default:
1. if in relation to the Participant an Insolvency Event shall occur:
2. if the Participant shall assign, sub-contract, or transfer any of its rights or obligations pursuant to this Agreement, without the prior written consent of the TMC.
Effects of Termination
Upon termination of this Agreement:
1. the licence granted to the Participant under this Agreement will cease;
2. the Participant must:
  1. pay all outstanding sums payable by the Participant to the TMC, which immediately become due and payable; and
  2. return promptly to the TMC all documents and materials in its possession relating to the Licensed IP and Training Resources;
3. the Participant must comply with any reasonable directions given by TMC;
4. each party must:
  1. use its best efforts to mitigate its loss; and
  2. continue to keep confidential the other party’s Confidential Information; and
5. each party’s rights to use and disclose the other party’s Confidential Information cease other than in relation to information that party is required to retain or disclose.

8. Liability

Release
Except where to do so would contravene any Law or make any part of this clause 8 void or unenforceable, the Participant releases TMC and each of its Personnel from and against:
1. all Liability that the Participant may sustain or incur as a result, whether directly or indirectly, arising from the use of the Licensed IP, Targeted Motor Control® Screening Tool, or any Products or processes derived from the Licensed IP or Targeted Motor Control® Screening Tool; and
2. any indirect or Consequential Loss or damage arising under this Agreement or relating to the use of the Licensed IP or Targeted Motor Control® Screening Tool.
Indemnity
The Participant indemnifies TMC, and each of its Personnel from and against all Liability that TMC, or its Personnel may sustain or incur as a result, whether directly or indirectly, of:
1. any breach of this Agreement by the Participant including, but not limited to, a breach in respect of which TMC exercises an express right to terminate this Agreement;
2. any Claim arising out of or in any way related to any injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to this Agreement and caused by an act or omission of the Participant or its Personnel;
3. any Claim by a third party arising out of or in any way related to any wilful, negligent or unlawful act or omission of the Participant or any of its Personnel; or
4. the use of the Licensed IP or Targeted Motor Control® Screening Tool (other than use by the TMC), or any Products or processes derived from the Licensed IP or Targeted Motor Control® Screening Tool.
No Liability by TMC
Neither TMC nor any other party involved in creating, producing, or delivering the Training, licensing the Licensed IP or providing the Targeted Motor Control® Screening Tool or Reports will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or products, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms whether based on warranty, contract, tort (including negligence), product liability or any other legal theory.

9. Dispute Resolution

Condition Precedent
Subject to clause 9.3, as a condition precedent to the commencement of any litigation, if a dispute arises between parties to this Agreement, the parties agree to refer the dispute to mediation administered by the Australian Commercial Disputes Centre (ACDC).
Mediation
The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) in force at the date of this Agreement. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved, including the parties’ respective responsibilities for the payment of the mediator’s costs and other costs of the mediation.
Injunction
At any time, nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court.

10. Applicable Law and Jurisdiction

This Agreement is made and governed by the law of Queensland, Australia.

Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and waives any objection to the venue of any legal process on the basis that the process has been brought in any inconvenient forum.

11. General Provisions

Entire Understanding
Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between TMC and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between TMC and you.
Relationship
No joint venture, partnership, employment, or agency relationship exists between you and TMC as a result of this Agreement.
No Third Party Remedies
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties to this Agreement.
Severability
If any provision of these Terms is held to be invalid or unenforceable, the remainder of this Agreement subsists and remains enforceable.
Exercise of Remedies
TMC’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
Assignment
You must not assign, transfer or delegate this Agreement and your rights and obligations hereunder without TMC’s prior written consent. TMC may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
Notice
Unless specified otherwise, any notices or other communications to Participants permitted or required under this Agreement, will be in writing and given by TMC via email or messaging service (including SMS).

12. Definitions

Agreement	means those annual fees advertised and charged by TMC from time to time for the use of the Licenced IP for the Subsequent Term.
Annual Fee	means this agreement including any schedules, attachments and annexures to it.
Business Day	means a day other than a Saturday, Sunday, or public or bank holiday as gazetted in Brisbane.
Claim	includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
Confidential Information	means: all information of or used by a party relating to its business, transactions, operations and affairs that is by its nature confidential, is designated by the Discloser as confidential, or the Recipient knows or ought to know is confidential; Training Resources; all other information treated by a party as confidential; all notes, data, reports and other records (whether or not in tangible form) based on, incorporating or derived from information referred to in paragraphs (a) or (b); and all copies (whether or not in tangible form) of the information, notes, reports and records referred to in paragraphs (a), (b) or (c), but does not include information which: is not public knowledge (otherwise than as a result of a breach of a confidentiality obligation of a party); or forms part of the Recipient’s general skill and knowledge.
Consequential Loss	means: in the case of loss or damage resulting from a breach of contract, by virtue of any breach of any fiduciary obligation, by virtue of any actionable wrongful act, or under any other principle of equity, by virtue of any breach of any statutory duty, or under any other legal doctrine, principle or theory, all: loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; increased overhead costs; and all other loss which is indirect, remote or unforeseeable loss or loss resulting from some supervening event or special circumstance, whether or not in the reasonable contemplation of the parties at the time of execution of this Agreement as being a probable result of the relevant breach; and in the case of loss or damage arising from any tort (which expression, for the purposes of this definition, includes any breach of a contractual duty of care and also negligence) – all loss of the kind described in paragraph (a) of this definition, all other loss which is indirect, remote or unforeseeable loss and all pure economic loss of any kind not flowing directly from the commission of the tort, but specifically excludes: loss arising from any criminal acts or fraud by the party liable or by any person for whose acts or omissions it is vicariously liable; and loss arising from liability which, by law, the parties cannot contract out of.
Corporations Act	means the Corporations Act 2001 (Cth).
Training Videos	means videos made available for viewing by Participants during the online training accessed from the TMC Platform.
Discloser	means a party to this Agreement which discloses information from or about that party.
Dispute	means a dispute of difference of opinion between one or more parties regarding this Agreement or their rights and obligations under this Agreement.
Effective Date	means the date the fees for the Licence have been received by TMC in full.
Group Licence	means the licence specified in clause 3 as applicable for Individuals subscribing and paying the Licence Fee for a Group as advertised by TMC on the TMC Platform.
Improvement	means the Intellectual Property Rights in the any improvement, enhancement, modification, extension or addition to the Licensed IP (whether made before or after the date of this Agreement) and includes the copyright and data in the information entered by the Participant into the TMC Platform.
Intellectual Property Rights	means all present and future rights conferred by statute, common law or equity in any jurisdiction in or in relation to copyright, designs, patents, circuit layouts, plant variety rights, inventions, know-how, business names, logos, designs, drawings, trade or service marks, Moral Rights, trade secrets and applications for any of the foregoing and any right to have information (including Confidential Information) kept confidential, and other results of intellectual activity in the industrial, commercial, scientific or literary or artistic fields.
Law	means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction and includes the common law and equity as applicable from time to time, and any applicable industry codes of conduct.
Liability	means all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses (whether personal or property, and whether special, direct, indirect or consequential, including consequential financial loss) of whatever description.
Licence Fee	means those fees advertised and charged by TMC for the online Training for individual Participants and for Participants covered by a Group Licence from time to time.
Licensed IP	means: the specific items described in Schedule 1 and Schedule 2; Training Resources; Reports; any and all Intellectual Property Rights in connection with the items set out in paragraphs (a) and (b) above.
Licence Term	means the period commencing on the date of the satisfactory completion of the Training and ending 12 months later.
Moral Rights	means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future under the Copyright Act 1968 (Cth) or under the law of a country other than Australia which is given effect in Australia.
Patent	means any patent or patent application which embodies any part of the Licensed IP, and all patents and patent applications which claim priority from, or are divided from, or are continuations or continuations-in-part, of any of the patents or patent applications.
Personnel	of a party means the officers, employees, contractors and agents of that party.
Product	means any product or service that results or is developed from, or incorporates any component of the Licensed IP, including the Targeted Motor Control® Screening Tool.
Recipient	means a party to this Agreement which receives information from or about the other party.
Renewal Fee	means those fees advertised and charged by TMC for renewal of the licence for the each Subsequent Term, from time to time.
Reports	means reports generated by the Participant entering information derived from the Targeted Motor Control® Screening Tool into the TMC Platform.
Training Resources	means all training documents, materials, screening tool, Videos and information provided to the Participant by TMC accessed from the TMC Platform.
TMC	means Targeted Motor Control Pty Ltd ABN 16 675 247 908.
Agreement	means the website with URL address https://www.targetedmotorcontrol.com.au, and any other websites and sub-domains through which TMC makes the products, services and functions available, our mobile, tablet and other smart device applications, and application program interfaces and all associated products.
Targeted Motor Control® Screening Tool	means the targeted motor control screening tool used to identify children ‘at-risk’ of developmental delay, in particular, motor delay as described in Schedule 2.
Subsequent Term	means the period commencing on the date of payment of the Renewal Fee and ending 12 months later.

Schedule 1

Trade Marks and/or trade mark applications

The following trade marks and/or trade mark applications and all antecedent and derivative trade marks and trade mark applications, all corresponding trade marks and trade mark applications in any jurisdiction in the world and any right to apply for such trade marks and trade mark applications, together with any know-how in respect of such trade marks and trade mark applications:
Copyright works

Training resources, including copyright works in training documents, materials, screening tools and videos, including the Targeted Motor Control® Screening Tool, used to screen and identify children ‘at-risk’ of developmental delay, in particular, motor delay.

Schedule 2

The journal article titled “The Targeted Motor Control Screening Tool is Valid for Four-Year-Old Children” published 14 May 2024 located here.