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Clinic to Cloud Terms of Use

(Version 4.1 – 02 December 2021)

Use

Set out below are the Terms of Use, which are to be read in conjunction with the attached Order Form. If accepted, the Order Form and the Terms of Use will form the terms and conditions of an Agreement between you and Clinic to Cloud Pty Limited (ABN 60 601 566 849).

Terms of use

1. Definitions

In these Terms of Use the following words have the following meanings:

"Access Fees" means the fees and charges set out in the Order Form or as otherwise agreed with Us or notified to You in accordance with clause 13.8 from time to time.

"Agreement" means these Terms of Use and, if You are a Subscriber, any additional terms and conditions otherwise agreed with Us or notified to You in accordance with clause 13.8 from time to time, including without limitation the Order Form.

App” means any C2C smartphone application that You download from the Apple App Store or Google Play or any other platform from where any such application is available from time to time.

"Applications" means the internet site located at www.clinictocloud.com or any other sites or apps operated by Us and, where the context permits, includes the Apps and portals.

"Clinic to Cloud", “We”, “Our” or “Us” means Clinic to Cloud Pty Limited (ABN 60 601 566 849) and includes any Related Body Corporate of Clinic to Cloud, including (without limitation) Speech Solutions Australasia Pty Ltd and Clinic to Cloud Holdings Ltd.

Commencement Date” means the earlier of sixty (60) days from Order Form Sign Date, or the Go-Live Date – Logins Provided Date.

"Confidential Information" means information regarding this Agreement and includes all information regarding pricing and discounts.

Conversion” means the once-off conversion of your Data from its existing format (in existence at the date of this agreement) into a format that enables it to be used in the Services, and the once-off importation of that converted Data into the C2C platform.

Conversion Date” means the period of time identified for the Conversion to occur.

"C2C" or “Services” means the online, cloud based medical practice management services provided by Us that are designed to assist medical practitioners operate their medical practices (as may be changed or updated from time to time by Us) via the Website, App and any other platform operated by Us from time to time and “Service” has a corresponding meaning.

"Data" means any data inputted by You or with Your authority into C2C.
 
eWay” means Web Active Corporation Pty Limited and its Related Bodies Corporate.

Go Live Date - Logins Provided” means the date logins are provided to customer.

"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

"Invited User" means any person or entity, other than the Subscriber, that uses C2C with the authorisation of the Subscriber from time to time.

Minimum Term” means the minimum term, if any, You have agreed to Subscribe to the Service as identified in the Order Form.
 
Order Form” means the Order Form attached to these Terms of Use and/or set out in Your online user portal and maybe varied from time to time.

Related Body Corporate” has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth).

Renewal Term” has the meaning given to it in clause 3.1(b)

Stripe” means Stripe Financial Services Company and its Related Bodies Corporate.

"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
 
Subscription” means the agreement to allow access to C2C with the particular user roles and specific functions agreed with the Subscriber for the particular period of time agreed with the Subscriber pursuant to the terms of this Agreement. “Subscribe” has a corresponding meaning.

System Requirements” means any system requirements published by us on our website or otherwise notified to you prior to the Conversion occurring.

Upfront Fees” means the total one-off fees payable by you and are normally billed within 10 working days of Order Form sign date.

"You" means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.

2. Use of Services

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.

3.0 - Your Obligations

3.1 Term

  1. The Agreement will commence on the Commencement Date and, subject to clause 10, expire on the later of the end of the Minimum Term and any Renewal Terms.
  2. Subject to clause 10, if You have subscribed for a Minimum Term, Your Subscription will automatically renew at the end of the Minimum Term for subsequent successive “Renewal Terms” of the same length as the Minimum Term. For example, where the Minimum Term is 12 months, the Renewal Term will also be 12 months and otherwise subject to these existing terms and conditions (subject to any notification under clause 13.8).
  3. You will therefore continue to receive the Services and pay the Access Fees on the conclusion of Your Minimum Term until the end of all Renewal Terms or where Your Subscription is terminated by You or Us in accordance with clause 10.

3.2 Payment obligations

  1.  In consideration for the provision by Us of the Service, You must pay the Upfront Fees and the Access Fees plus any applicable GST at the times and in the manner set out in the Order Form.
  2.  You must pay the Upfront Fees on or before the Commencement Date.
  3.  All Access Fees are payable monthly in advance, and must be paid on and from the Commencement Date until the expiry of the Minimum Term and, subject to clause 10, any Renewal Terms.
  4.  All Access Fees quoted are exclusive of GST.
  5.  We will issue You with a Tax Invoice in respect of the Access Fees in accordance with the GST Act. Subject to receipt of an invoice in accordance with this clause, you must pay to Us the Access Fees plus any GST (payable in addition to the Access Fees) within 7 days of receipt of the Tax Invoice.
  6. On the commencement of any Renewal Term, You agree the access fees may be raised at Our discretion provided You have been given notice at least 60 days prior to the expiry of the Minimum Term or applicable Renewal Term and you do not object in writing to such raise before the expiry of that notice period. Any increase in the access fees will apply from the start date of the next occurring Renewal Term.
  7. In the event that You fail to pay the Upfront Fees or any Access Fees by any due date for payment, You acknowledge and agree that:
i. Interest will be charged on all overdue amounts at the rate of 18% per annum, compounding and calculated daily;
ii. We may suspend and refuse to provide You with access to the Services in our sole and absolute discretion (without the need to act reasonably) until all payments are made (together with any interest that has accrued);
iii. We may terminate this agreement, subject to clause 10; and
iv. We may refer any overdue payments to an external third party for enforcement.

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

We accept payment of the Upfront Fees and Access Fees (and any other money payable by You under this Agreement) via third party gateway providers. As at the date of this agreement we use both eWay and Stripe. In entering into this Agreement and using the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation of eWay and Stripe from time to time. The Payment Gateway used may be subject to change from time to time provided that reasonable written notice is provided to you, in which case you must comply with all of the requirements of this clause so that they apply in relation to any Payment Gateway we use from time to time. You must immediately notify us if any details you have given us to enable us to use the Payment Gateway have changed.

3.5 General Obligations

You agree that, subject to any applicable laws:

  1.  the Subscriber and its Invited Users must only use C2C for the Subscriber’s lawful internal business
    purposes, in accordance with this Agreement, the terms in Your Order Form or any condition posted on the Applications;
  2.  You must ensure that all hardware upon which the Services are installed comply with the System Requirements for the duration of Your Subscription;
  3. You must upgrade all software supplied as part of the Services within a reasonable time of any upgrades becoming available;
  4.  the Subscriber will be responsible for determining who is an Invited User and what level of access to the relevant Service that Invited User will have;
  5. You must not provide false information when registering or changing Your registration details or when registering or providing registration details;
  6.  You will be given or must select individual login credentials for the Applications that are not easily guessable and that are likely to remain secure (including a mixture of upper case and lower-case letters, numbers and symbols);
  7.  logon credentials are confidential to each User. You must not share Your logon credentials and must keep logon credentials confidential;
  8.  You must immediately notify Us of any unauthorised use of logon credentials or any other breach of security. Where a breach of security occurs, We may reset the relevant logon credentials and You must take all other actions that We reasonably deem necessary to maintain or enhance the security of Our systems and networks and Your access to the Services;
  9.  the Subscriber is responsible for Your use and all Invited Users’ use of the Service including compliance with the law and the terms of this Agreement;
  10. the Subscriber must control each Invited User’s level of access to the relevant Services at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have a different level of access, as the case may be;
  11.  You must not make the Services available to any person other than the Subscriber and Invited Users;
  12. if there is any dispute between the Subscriber and the Subscriber’s Invited Users regarding access to any Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that the Invited User shall have, if any;
  13. You must not attempt to undermine the security or integrity of Our computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
  14. You must not use, or misuse, the Services in any way which may impair the functionality of the Services or Applications, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Applications;
  15.  You must not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
  16. You must not transmit, or input into the Applications or otherwise create when using the Services, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use);
  17. You must not use the Applications or any communication tool available on the Applications for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, content that may be offensive to any other users of the Services or the Applications;
  18.  when You make any communication on the Applications, You represent that You are permitted to make such communication and You recognise that We are under no obligation to ensure that the communications on the Applications are legitimate or that they are related only to the use of the Services, however, we reserve the right to remove any communication at any time in Our sole discretion;
  19.  You must not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Applications except as is strictly necessary to use either of them for normal operation and only with our express written consent;
  20. You must not commercialise the Services; and
  21. You agree to accept sole responsibility for the legality of Your actions under the laws which apply to You. You agree that We and Our directors, officers, employees, agents, contractors, successors, assignees and suppliers have no responsibility for the legality of Your actions.

3.6 Conversion of Data

You agree that, subject to any applicable laws:

  1. We will use reasonable endeavours to complete the Conversion within the period specified as the Conversion Date. We are not liable if, having used reasonable endeavours, we are unable to do so.
  2. If you cancel or postpone any scheduled date for Conversion to occur and give us less than 3 days’ notice of that cancellation or postponement, you agree to pay to us our reasonable costs incurred in connection with any rescheduling or cancellation. Furthermore, you agree to pay to us reasonable costs incurred for additional effort applied if data cannot be accessed at a pre-agreed time of extraction, or from failure by you to provide data at a pre-agreed time of delivery.
  3.  You warrant that all hardware upon which the Services will be installed comply with the System Requirements.
  4. You must notify Us of any Conversion or Data transition issues within 14 days of the end of the Conversion Date. If you notify Us after that time, You will be charged an additional fee for any work we are required to do in order as a result.
  5. You warrant that:
(i) All Data the subject of any Conversion is error free, and free from any viruses and all contained on the platform and in the format you have represented to us;
(ii) You will use your best endeavours to enable us to perform the Conversion on the Conversion Date.

4.0 - Confidentiality

4.1 Confidentiality

a. Unless the relevant party has the prior written consent of the other party or unless required to do so by law:

(i) each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement; and
(ii) neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.

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.

5.0 - Intellectual Property

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:

  1. modify or copy the layout or appearance of the Applications or the Service or any computer software or code contained in the Applications or the Service; and/or
  2. decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Applications or the Service.

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.

5.7
If You enable third-party applications for use in conjunction with the Services, You acknowledge that We may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services subject to any applicable laws and our privacy policy . We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

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.

6.0 Warranties and Acknowledgements

6.1 You warrant that:

  1. You have read and understood this Agreement and agree to comply with this Agreement at all times;
  2.  You will install antivirus software and use your best endeavours to safeguard the content of the Services and all Data on all hardware upon which the Services will be used, including by Invited Users;
  3.  You have not been induced to enter into agreeing to this Agreement or using the Service by reason of any promise, representation, warranty or guarantee or undertaking whatsoever other than as is expressly stated in this Agreement;
  4. You have been given the opportunity to take legal advice on the terms of this Agreement;
  5.  You have the capacity, power and authority to agree to this Agreement and if You have agreed to this Agreement on behalf of another person, You have the necessary power and authority to agree to this Agreement on their behalf and have taken all necessary action in order to agree to this Agreement; and
  6. You have obtained all third-party approvals necessary for You to agree to this Agreement.

6.2 You acknowledge that:

  1.  You are authorised to use the Services and the Applications and to access the information and Data that You input into the Applications, including any information or Data input into the Applications by any person You have authorised to use the Service;
  2.  You are authorised to access the processed information and Data that is made available to You through Your use of the Applications and the Services (whether that information and Data is Your own or that of anyone else);
  3. We do not provide medical services, medical advice or medical opinions of any kind and do not refer people to or recommend medical practices;
  4.  We are not responsible for the accuracy or content of the Data; and
  5.  We do not provide services to, and are not a party to, any agreement with, and have no responsibility for, any patient who receives medical services from You, Your Invited Users, or any medical practitioners or assistants engaged by or affiliated with You.

6.3 We warrant that:

  1.  We have the capacity, power and authority to agree to this Agreement and if We have agreed to this Agreement on behalf of another person, We have the necessary power and authority to agree to this Agreement on their behalf and have taken all necessary action in order to agree to this Agreement; and
  2.  We have obtained all third-party approvals necessary for Us to agree to this Agreement
  3. Our Services, intellectual property and the Applications do not infringe the intellectual property rights of any third party.
6.4 We do not warrant that the use of the Service will be uninterrupted or error free. The systems used for accessing the Service can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not responsible for, and You irrevocably release Us from any claim in connection with any loss or damage suffered as a result of any such interference or prevention of Your access to or use of the Services.

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).

7.0 Third Party Applications and Integration Services

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.

7.6 Secure Messaging is charged at 35c (ex GST) per message. SMS charged at 20c (ex GST) per message based on consumption.

8.0 Limitation of Liability

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:

  1. in the case of goods:
            (i) the replacement of the goods or the supply of equivalent goods;
            (ii) the repair of the goods;
            (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
            (iv) the payment of having the goods repaired, and

  2.  in the case of services:
            (i) the supply of the services again; or
            (ii) the payment of the cost of having the services supplied again.

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.

 

9.0 General Indemnity

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.

 

10.0 Subscription Cancellation and Termination

10.1 Either party may terminate Your 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:

  1.  You have committed a breach of this Agreement that is incapable of remedy; or
  2. You have committed a breach of this Agreement that is capable of remedy (including without limitation non- payment of any Access Fees) but have failed to remedy that breach within 14 days of receipt of notice requiring You to do so; or
  3.  Subject to any applicable legislation, You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction.

10.5 You may terminate this Agreement if:

  1.  We have committed a breach of this Agreement that is incapable of remedy; or
  2.  We have committed a breach that is capable of remedy but have failed to remedy that breach within 14 days of receipt of notice requiring Us to do so; or
  3.  Subject to any applicable legislation, We become insolvent or go into liquidation or have a receiver or manager appointed over any of Our assets or if We make any arrangement with Our creditors.

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:

  1.  remain liable for any accrued charges and amounts which become due for payment before or after termination; and
  2.  immediately cease to use the Services and the Website and must immediately take steps to remove all Services and Applications from all hardware on which they are installed, unless otherwise directed by Us in writing, in which case You must act in accordance with those directions.

11.0 App-Specific Provisions

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.

12.0 Survival

Clauses 4, 5, 7, 8, 9 and 10 survive the expiry or termination of these Terms.

13.0 General

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.

13.7
Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission provide no message is received notifying the sender that the email has failed to be delivered. Notices to Us must be sent to the addresses specified in the Terms of Use or to any other email address notified by email to You by Us. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.

13.8
If You are not subject to a Minimum Term or a Renewal Term, We may in our sole discretion amend these Terms of Use at any time. Any variations to these Terms of Use will take effect from posting on the Website. If You are subject to a Minimum Term or a Renewal Term, the terms and conditions which You accepted on the commencement of Your Minimum Term or Renewal Term are those that will govern Your relationship with Us with respect to the Minimum Term or Renewal Terms. You agree that we may amend those terms and conditions upon at least 60 days’ written notice, if they are to take effect at the end of any Minimum Term or Renewal Term that is current as at the date of such notice.

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.

14.0 Special Conditions

14.1 If there is any inconsistency between these Terms of Use and the terms listed in the Order Form under the heading “Contract Notes”, the terms of the Order Form will prevail, and these Terms of Use must be read subject to the terms contained in the Order Form under the heading “Contract Notes”.

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