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(Version 4.0 – 11 March 2021)
2.1 Subject to the terms of this Agreement and your compliance with them, Clinic to Cloud grants You from the Commencement Date the right to access and use the Service via the Applications and available apps with the particular user roles and specific services available to You according to Your Subscription type as specified in the Order Form.
2.2 This right is non-exclusive, non-transferable, and limited by and subject to the terms of this Agreement.
3.2 Payment obligations
3.3 Preferential pricing or discounts
We may run temporary promotions and offer discounts on the provision of our Services. Such promotions and discounts will be subject to additional terms and conditions (as specified with the offer) which may amend this Agreement. In the event that You do not comply with the terms of any promotion or discount offered, You will not be entitled to the promotion or discount and must immediately repay any amount in respect of such promotion or discount that has been credited to You in advance. All times and dates specified in promotions are deemed to be the local time in Sydney, Australia, unless otherwise stated.
3.4 Payment Gateway
3.5 General Obligations
You agree that, subject to any applicable laws:
3.6 Conversion of Data
You agree that, subject to any applicable laws:
a. Unless the relevant party has the prior written consent of the other party or unless required to do so by law:
b. The obligations of confidentiality contained in this clause do not apply to any information which:
(i) is or becomes public knowledge other than by a breach of this Agreement;
(ii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(iii) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(iv) is independently developed without access to the Confidential Information.
c. The obligations imposed under this clause will survive the termination of this Agreement.
5.1 The Applications and all content forming part of the Applications, including without limitation all photographs, images, designs, information, interfaces, text, graphics, brand names, logos and trademarks, are protected by copyright, trade mark and other intellectual property laws. You acknowledge and agree that We own, control or have licensed all legal right, title and interest in and related to the Applications, including all Intellectual Property Rights associated with the Services.
5.2 You must not:
5.3 Except where permitted under the Copyright Act 1968 (Cth) or other applicable laws, and except for the temporary copy held in Your computer's cache, any of the Applications’ content (including any substantial part of them) must not otherwise be used, stored, copied reproduced, published, altered, adapted, distributed, printed, displayed, transmitted or commercialised in any form or by any means in whole or part without our prior written consent.
5.4 If You correspond or otherwise communicate with Us regarding Clinic to Cloud’s product or services, platform or Intellectual Property, You acknowledge that all Intellectual Property or Works conceived, created or developed by Clinic to Cloud during the course of providing Services to You vests in and is owned by Clinic to Cloud. To the extent that You have any right, title or interest in any such Intellectual Property, you hereby irrevocably assign any right, title or interest in any such Intellectual Property to Clinic to Cloud to the exclusion of You and any other person claiming through you”.
5.5 Title to, and all Intellectual Property Rights in, the Data remain Your property. Your access to the Application is contingent on full payment of the Upfront Fees and Access Fee as and when it is due; However, we will provide you with a link in order to download your Data and will otherwise grant you access to all health-related Data as required by law. You grant Clinic to Cloud a license to copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of the Services to You. At any time, You may download a full copy of Your Patient Data for Your use and maintenance outside of the Service for up to 1 year from the last date you paid for the subscription with Us. If you decide to leave Clinic to Cloud or otherwise once this Agreement is terminated, it is your responsibility to take and store your Data. Your Data may be deleted only after 1 year from the last date you paid for the service, or otherwise where we are permitted by law to do so. We agree that we will provide your data in a compliant SQL database backup file or such other format as the parties agree.
5.6 We adhere to best practice global policies and procedures to protect practices, doctors’ and patient’s data loss, including periodic daily system data back-up regimes with all data being stored by Microsoft data centers in Melbourne and Sydney. Whilst we make every best attempt to protect data, we do not make any guarantees that there will be no loss of Data. You are responsible for maintaining any copies of Data inputted into the Service. We expressly exclude liability for any loss of Data except to the extent that such losses are contributed to by our act, omission or negligence.
5.8 You must not do anything in using the Services which in any way infringes on any third party (or Our) Intellectual Property Rights. You agree to indemnify Us and hold Us harmless against all loss, damage, costs and liability in connection with any breach of this clause.
5.9 Where a third party Intellectual Property Rights claim is made against You, You must promptly notify Us and comply with Our reasonable directions. You must not settle such a claim or make any admissions or consent to any judgment being entered without Our express prior written consent.
6.1 You warrant that:
6.2 You acknowledge that:
6.3 We warrant that:
6.5 You remain solely responsible for complying with all applicable laws. It is Your responsibility to check that storage of and access to Your Data via the Service and the Applications will comply with laws applicable to You (including any laws requiring You to store, use, disclose and retain records).
7.1 The Service and the Applications include integration services, which enable Users and Invited Users to access tools and services offered by third parties, including without limitation services offered by MIMS, Argus, Tyro, Xero and that facilitate claims lodgement with bodies such as Medicare, the Department of Veteran Affairs and private health insurers (collectively Third Party Service Providers). In addition, the Applications may contain links to other web sites controlled by third parties (Third Party Applications).
7.2 You agree that We are not responsible for any act or omission of, or the content or privacy practices of Third Party Service Providers or of Third Party Applications.
7.3 Integration services involving Third Party Service Providers and links to Third Party Applications are provided solely for Your convenience and do not constitute, expressly or impliedly, an endorsement by Us of the third party or the products or services provided by the Third-Party Service Provider or the Third Party Applications. You acknowledge that we have no control over those products or services.
7.4 You access the sites and/or use the products and services offered by Third Party Service Providers or Third Party Applications solely at Your own risk and should make Your own enquiries before relying on any content contained in such Third Party Applications or offered by such Third Party Service Providers.
7.5 You indemnify Us and agree to hold us harmless against all loss and damage (including legal costs on a solicitor client basis), and release Us from all claims that You or any other person may make against Us in respect of the matters referred to in this clause except to the extent that any losses or damage are contributed to by Our negligence.
8.1 You warrant and represent that You are acquiring the right to access and use the Services for business purposes and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non- business consumers in any jurisdiction do not apply to the supply of the Services, the Applications or this Agreement.
8.2 Except where expressly required by law, we give no warranty regarding the Services including, without limitation, in relation to whether the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of acceptable quality and fitness for purpose,
8.3 Notwithstanding the above and notwithstanding any other provision in this Agreement, We do not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law, the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.
8.4 Where any condition, warranty or right is implied by law, or there is a statutory consumer guarantee that cannot be excluded, We limit our liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee, either as provided under section 64A of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or otherwise to the extent permitted by law.
In particular, to the extent possible, We limit our liability in respect of any claim to, at our option:
8.5 Without limiting and subject to the foregoing, to the maximum extent permitted by law, We exclude and you unconditionally and irrevocably release us from all liability and responsibility to You (or any other person including without limitation Your Invited Users) in contract, tort (including negligence), or otherwise, for any loss (including without limitation loss of an indirect or consequential nature, loss of information, loss of Data, loss of profits, loss of savings, loss or damage caused by any computer virus including a virus passed from the Service or the Applications to Your computer or any third party computer, or loss of online connection to the Applications, or interruption to access to the Applications, the Service or the Data) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Applications except to the extent that such losses or damage are contributed to by Our negligence.
8.6 Any reliance You place on, or any act done based on or in response to, the content of the Service or the Applications will be at Your own risk. You indemnify and release Us against any claim for loss or damage of any kind suffered by You or any other person as a result of Your use of the Service, the Applications or its contents except to the extent that such losses or damage are contributed to by Our negligence.
9.1 You will at all times indemnify Us, and keep Us indemnified against any loss (including legal costs and expenses) or liability incurred or suffered by Us arising from any claim, demand, suit, action or proceeding by any person (including You) against Us where such loss or liability arose out of, in connection with or in respect of Your conduct, Your use of the Services, the use of the Services by any Invited User, the use of the Services by any person in connection with the operation of Your business or medical practice, and/or Your breach of this Agreement including without limitation the warranties provided by You. You expressly agree that the indemnity given by this clause also extends to Our Related Bodies Corporate.
9.2 You must take out and maintain for the term of this Agreement all appropriate insurances in connection with Your business that requires the Use of these Services, including without limitation workers compensation insurance, and professional indemnity insurance. You must provide to Us a copy of evidence of all insurances within 5 days of a request by Us for You to do so.
10.1 Subscription and this Agreement at the end of the Minimum Term or any Renewal Terms (as the case may be), by providing the other party not less than 30 days’ notice of termination prior to the expiration of the relevant Minimum Term or the Renewal Term.
10.2 If You cancel Your Subscription and/or terminate this Agreement prior to the conclusion of Your Minimum Term or the applicable Renewal Term (as the case may be), or if we terminate this Agreement in accordance with this clause, You will remain liable for all Access Fees that would be payable until the end of Your Minimum Term or Renewal Term, as the case may be, which shall become immediately due and payable to Use upon such termination, unless the cancellation or termination is as a result of Our material breach of this Agreement and in accordance with clause 10.5.
10.3 If You wish to close Your Account or cancel Your Subscription, you must notify Us in writing by email to the address specified in the Order Form or close Your Account using the Account closure tools provided in C2C.
10.4 We may terminate this Agreement and Your use of the Services and the Applications, suspend for any definite or indefinite period of time Your use of the Services and the Applications or suspend or terminate Your access to all or any of the Data by notice to You if:
10.5 You may terminate this Agreement if:
10.6 Termination of this Agreement is in all cases without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
11.1 The provisions of this clause 11 apply only to Your use of any App.
11.2 You agree that You have entered into an Agreement with Us, and not with Apple or Google or other application platform. We are solely responsible for any product warranties, if any, pertaining to the App, whether express or implied by law, to the extent they are not otherwise effectively disclaimed in this Agreement.
11.3 In the event of any failure of the App to conform to any applicable warranty and where the warranty relates to Your use of a version of the App downloaded through the Apple App Store You may notify Apple, and Apple will refund the purchase price for the App to You (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App , and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty, if any, will be Our sole responsibility.
11.4 The parties acknowledge that subject to clause 11.3, We, and not Apple or Google, are responsible for addressing any of Your claims relating to the App or Your possession and/or operation of the App, including, but not limited to: (i) product liability claims made in respect of the App; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
11.5 The parties both acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services with respect to the App.
11.6 You represent and warrant that: (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
11.7 The parties each acknowledge and agree that Apple and Google, and Apple’s and Google’s respective subsidiaries, are third party beneficiaries of this clause 11, and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce this clause 11against You as a third party beneficiary of this clause 11.
11.8 Apple and App Store are trademarks of Apple Inc., registered in the U.S. and other countries. Google is a trademark of Google Inc.
11.9 For the avoidance of doubt, the parties state that nothing in this clause 11 is intended to limit, exclude or modify any other provision of this Agreement.
Clauses 4, 5, 7, 8, 9 and 10 survive the expiry or termination of these Terms.
13.1 This Agreement, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Us relating to the Services and the other matters dealt with in this Agreement.
13.2 A failure or delay by a party to exercise a power or right under this Agreement does not constitute as a waiver of that power or right, and the exercise of a power or right by a party does not preclude that party from future exercise or the exercise of any power or right by or on behalf of that party.
13.3 If a provision of this Agreement is declared or determined by any court to be void, invalid or unenforceable at law, that provision is hereby severed from and deemed not to be part of this Agreement, and the remaining provisions will continue to apply with such deletions or modifications as necessary to make them valid, effective and enforceable. Removal of any provision of this Agreement will not affect the validity of what remains.
13.4 Nothing contained or implied in this Agreement creates a relationship partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
13.5 This Agreement is governed by, construed and enforced in accordance with the laws of New South Wales, Australia. Disputes arising from this Agreement are exclusively subject to the jurisdiction of the courts of New South Wales, Australia.
13.6 We may assign this Agreement without Your consent. You must not assign this Agreement without our express written consent.
13.9 Subject to any clause in this agreement stating otherwise, a person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.