Healthengine Practice Customer Terms and Conditions

These Healthengine Practice Customer Terms and Conditions (“T&Cs”) apply to the supply of any and all Services by Healthengine Limited (ACN 138 767 021) (“Healthengine“) or its Affiliates whether those Services are provided through healthengine.com.au (healthengine.com.au) (“Website“) or otherwise.

Anyone submitting a Form and/or otherwise utilising or accessing the Services is deemed to agree to these T&Cs and the other terms of the Agreement. A “Practice Customer” includes a person or organisation named as a “Practice” and/or named as a “Practitioner” and/or otherwise identified as a practitioner user of the Services in a Form. A Form in combination with these T&Cs constitutes the “Practice Customer Agreement” (or the “Agreement“) between Healthengine and each applicable Practice Customer. This Agreement binds each Practice Customer referred to in a Form jointly and severally and each reference to a Practice Customer is a reference to each of the Practices referred to in a Form and each Practitioner named as a user of the Services in that Form.

If you are utilising or accessing the Services on behalf of your employer or another entity, you confirm you have full legal authority to bind your employer or applicable entity to these T&Cs and the Agreement.

1. Definitions

Account: means an online account made available to a Practice Customer by Healthengine to enable the Practice Customer to manage among other things its profile and Appointment Plugin and access other digital services provided by Healthengine.
Affiliate: means in the case of Healthengine, Healthengine and any entity that, from time to time, is directly or indirectly controlled by Healthengine or any entity carrying on business that is part of the Healthengine group of entities; in the case of the Practice Customer, any entity that, from time to time, is directly or indirectly controlling, controlled by, or under common control of the Practice Customer. “Control” means the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
Appointment Plugin: means the plugin provided by Healthengine for embedding on Practice Customer assets including, but not limited to, practice websites, Facebook profiles, and practice apps, through which the Practice Customer publishes their available appointments and receives bookings.
Asynchronous Consult: means a consultation that is not conducted concurrently with a Practitioner such as through an online form.

Claim: means, in relation to any person, a damage, loss, cost, fine, penalty, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
Content: means any information or material of any kind published or made available to Healthengine by the Practice Customer in connection with the Services or the Network (including material provided by a Practice Customer to Healthengine for publishing on the Network including, without limitation, text, graphics, data, images, business, company or trade names, domain names and trade marks, whether registered or unregistered).
Data Incident: means an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any personal information collected, held, used or disclosed in the course of or relating to this agreement.
Eligible Data Breach: means an eligible data breach as that term is defined in section 26WE of the Privacy Act 1988(Cth)
Fees: means the fees payable by a Practice Customer to Healthengine for the Services, and includes Subscription Fees and Transaction Fees and any other fees set out in the Form or agreed to by the parties.
Form: means the online registration pages or other Healthengine registration forms or agreement a Practice Customer completes in signing up for the Services, together with the information provided in them, and also includes any Healthengine form submitted by a Practice Customer requesting services from Healthengine.
Initial Term: has the meaning given in clause 10(a) of this Agreement.
Minimum Term: means the minimum term of a Service as specified in the Service Details of a Form.
Minimum Unit Volume: means the minimum unit volume of Practitioners as specified in the Service Details of a Form
Network: means the Website and Healthengine iOS and Android mobile applications and any future versions or replacements of same.
New Patient: means a patient who indicates that they are a new patient of the Practice Customer at the time of making the applicable appointment.
PMS: means a Practice Customer’s Practice Management Software.
Practice: means a healthcare practice, centre, clinic or office within which one or more Practitioners provide healthcare services (which could be a sole practitioner or an entity or other association).
Practitioner: means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a practice).
Renewal Term: has the meaning given in clause 10(b) of this Agreement.
Services: means the services provided by Healthengine for use by the Practice Customer specified in a Form, or otherwise requested by the Practice Customer from time to time where such request is accepted by Healthengine.
Subscription Fees: means fees relating to Services provided to the Practice Customer on a monthly fixed fee subscription basis.
Term: means the period from commencement of the Practice Customer Agreement until termination of the Practice Customer Agreement in accordance with clause 10.
Third Party Intermediary: means a person who provides services to the Practice Customer which are integrated with the PMS, the Services or the Appointment Plugin and are designed to facilitate the provision of Services through the Network.
Transaction Fees: means fees relating to Services provided to the Practice Customer calculated on the basis of the number and/or type of transaction.
User: means a Practitioner named in the Form as a permitted user of the Services.
Visitor: means a member of the public who uses the Network and includes a member of the public who books an appointment with the Practice Customer.

2. Healthengine key obligations

Healthengine must:

provide the Services in accordance with this Agreement;
provide the Services in a competent and diligent manner; and
collect, store and disclose all personal information received by Healthengine from the Practice Customer in accordance with the Healthengine Privacy Policy.

3. Practice Customer key obligations

The Practice Customer must:

pay the Fees;
use the Services solely in accordance with this Agreement for the purpose of promoting its Practice, managing appointments and referrals, and receiving Asynchronous Consult requests;
hold throughout the Term all licences with all relevant regulatory boards and/or other bodies, councils or authorities necessary to enable the Practice Customer to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practice Customer operates;
maintain throughout the Term any and all qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to members of the public;
ensure that the Content is accurate and up to date and remains accurate and up to date and it will indemnify Healthengine for any Claim resulting from outdated or inaccurate Content;
comply with any reasonable request of Healthengine regarding the Practice Customer’s use or access to the Network, including but not limited to any reasonable request to remove Content from the Network or cease using or accessing the Network in a manner that does not constitute acceptable use of the Network;
comply with any fair use policies applicable to the Services, as notified by Healthengine from time to time;
notify Healthengine of any change to any of the Practice Customer’s qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to Visitors or of any breaches of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence by the Practice Customer which may impact its ability to provide healthcare services to Visitors;
when using the Services or the Appointment Plugin to manage appointments and referrals:
- actively and consistently ensure its Content that is published on the Appointment Plugin is accurate and up to date by maintaining the Appointment Plugin on a regular basis and, in any event, as often as is reasonable so as to minimise the possibility of a Visitor booking an appointment through the Network that does not exist in the Practice Customer’s practice schedule;
- promptly contact directly each Visitor upon receiving a booking or query (whether through the Network or Appointment Plugin), and as otherwise necessary for the Practice Customer to provide services to the Visitor; and
- not use the Appointment Plugin to arrange appointments with non-Users;
if the Practice Customer uses the online Asynchronous Consult service:
- respond to requests from Visitors for Asynchronous Consult in accordance with the timeframes configured by Healthengine or the Practice Customer, as applicable (for clarification, it is solely a matter for the Practice Customer to determine whether to provide a Visitor with the health service requested via an Asynchronous Consult, require an appointment before determining whether to provide such health service requested via an Asynchronous Consult, or decline to provide the health service requested via an Asynchronous Consult; and
- ensure that it confirms the identity of any Visitor before providing the Visitor with any health service via an Asynchronous Consult. Healthengine will pass on the identity information provided by a Visitor, but the Practice Customer is solely responsible for verifying that information (together with any other relevant information) and confirming the identity of the Visitor to whom a health service is provided via an Asynchronous Consult;
encourage patient and client use of the Network and the Services;
ensure that only the Users are permitted to access the Services. Other Practitioners, even if they work in the same Practice as a Practice Customer, are not entitled to access the Services until they are named as a User in a Form;
notify Healthengine of any complaints relating to the Services received by the Practice Customer;
maintain all insurance policies which a reasonably prudent healthcare provider in the Practice Customer’s position would maintain, including but not limited to “Professional Indemnity” (including medical negligence if required) and “Public Liability” insurance in relation to the services offered by the Practice Customer;
maintain as confidential and keep secure all information regarding a Visitor and any other data received from Healthengine, and not disclose or use any information regarding a Visitor or any other data received from Healthengine other than for the purposes of this Agreement or the provision of the relevant healthcare services (except, in the case of information regarding a Visitor, with the consent of that Visitor);
maintain as confidential and keep secure any passwords or other security credentials relating to the Services;
comply with all applicable privacy and information laws and regulations so far as they relate to the Practice Customer’s collection, use, disclosure and storage of Visitors’ and other patients’ personal and health information and will indemnify Healthengine against Claims that result from the Practice Customer’s non-compliance with this provision;
notify Healthengine immediately of any unauthorised access of, or data breach relating to, the Services;
comply with all applicable laws in relation to its use of the Services;
ensure that all health information and health records of Visitors and other patients are stored on Practice Customer systems and retained in accordance with applicable laws. Healthengine is not responsible for retaining health information and health records collected via the Network for any prescribed period;
use the Appointment Plugin in accordance with Healthengine’s guidelines or instructions;
not use the Services to:
- post, publish or transmit any Content which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful, or racially or ethnically objectionable or where Healthengine otherwise reasonably determines in its discretion to be offensive;
- send, allow to be sent or assist in the sending of a communication which violates any applicable privacy or information laws or regulations;
- encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
- harm children in any way;
- impersonate a person or entity or falsely state their affiliation with a person or entity;
- upload, post, transmit or otherwise make available any Content that infringes the rights of another party including but not limited to trademark, copyright and other intellectual property rights; or
- transmit or otherwise make available any material that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
not use the Services to advertise or perform any commercial or other form of solicitation that is not authorised by Healthengine, including by making the Appointment Plugin available on any websites, mobile apps or otherwise unless they are proprietary (specific) to the Practice Customer or have otherwise been approved by Healthengine in writing; and

4. The Services

For the purpose of providing the Services and subject to the Practice Customer’s compliance with the terms and conditions of this Agreement, Healthengine grants to the Practice Customer a non-exclusive, non-transferrable and revocable right to access and use the Healthengine Network during the Term.
Healthengine may make such changes to the Services, the Network, the Appointment Plugin, its internal processes and the interface of the Services with the Practice Customer from time to time as Healthengine considers appropriate in its sole discretion. Where Healthengine makes such changes which it reasonably believes may be detrimental to the Practice Customer, it will provide the Practice Customer with at least 30 days prior notice of the change, and if the Practice Customer does not wish to continue to use the Services, then it may terminate this Agreement in accordance with clause 10.
Healthengine may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services. Healthengine may also engage or obtain assistance from an Affiliate including a related body corporate (or from persons engaged by the Affiliate or related body corporate) to assist in the provision of the Services. In the event that a subcontractor or an Affiliate is engaged to provide the Services or any part of the Services, Healthengine agrees that it remains responsible for the provision of the Services in accordance with this Agreement.
The Services do not include any support required to integrate the Services with the Practice Customer’s PMS, other than as agreed in the Service Details of a Form.
The Practice Customer is solely responsible for its provision of healthcare and managing its relationship with its patients (including a Visitor) including the collection of fees from those patients. Healthengine is not a party to any dealings, arrangements, agreements or similar between the Practice Customer and the Visitor and the Practice Customer must not purport to bind Healthengine in any way.
Where the Services include Practice website Development and Build:
- The Practice Customer must give existing domain access (if applicable) to enable Healthengine to build the website under the desired domain name. If needing to purchase a new domain name, the Practice agrees to pay any applicable fees and costs.
- The Practice Customer agrees to pay any ongoing Healthengine hosting fees.
- If wanting to transfer the website to a host other than Healthengine, the Practice Customer must provide Healthengine a minimum of 30 days prior written notice, which will serve as notice of termination of the hosting services and any related obligations on Healthengine.
- Reasonable levels of technical support are included in the applicable fees. However, if Healthengine in its sole discretion determines that technical support requested exceeds reasonable levels, Healthengine may elect to charge for additional technical support at the rate of $150/hour + GST. The Practice Customer will be informed before any such fees are incurred.
A fair use policy applies to Healthengine’s Recalls, Reminders, Communicate and other Services as notified by Healthengine from time to time, in its absolute discretion.
From time to time, Healthengine may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services“). All Beta Services are subject to the terms of this Agreement unless otherwise advised by Healthengine. The Practice Customer may accept or decline Beta Services. If accepted by the Practice Customer, Beta Services:
- are provided only for evaluation purposes;
- may not be relied on by the Practice Customer for production use;
- may not be supported; and
- may be subject to additional terms.
Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. Healthengine may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. All Beta Services are provided “as is” and “as available” without any warranty of any kind. Beta Services may be terminated at any time.

5. Third Party Intermediaries

Some Services offered via the Healthengine Network may be provided to the Practice Customer through Third Party Intermediaries (“Integrated Software”).
The Practice Customer acknowledges and agrees that its use of any Integrated Software will be subject to the Third Party Intermediary’s applicable terms and conditions.
All agreements with respect to the Practice Customer’s use of Integrated Software will be between the Practice Customer and the Third Party Intermediary, and Healthengine shall not be responsible for the acts or omissions of any Third Party Intermediary in providing services to the Practice Customer, or for any non-compliance by a Third Party Intermediary with the terms of the Practice Customer’s agreement with that Third Party Intermediary.
Healthengine is not the developer or owner of the Integrated Software and does not warrant the suitability, performance or use of the Integrated Software or any related services. As between Healthengine and the Practice Customer, Healthengine is not liable for any loss or damage claimed or suffered by the Practice Customer in connection with its access or use of any Integrated Software or related services.

6. Payments

Payment processing services for Practice Customers offered by Healthengine are provided by Stripe Payments Australia Pty Ltd (“Stripe”) or Tyro Payments Limited (“Tyro”) for the purpose of facilitating payments between Visitors or patients and the Practice Customer for approved Services via the Network and are subject to either the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”) Agreement”) or the Tyro EFTPOS and eCommerce Terms and Conditions (“Tyro Services Agreement”), as
applicable. You agree to be bound by the Stripe Services Agreement or Tyro Services Agreement (as applicable), as the same may be modified by Stripe or Tyro from time to time.
As a condition of Healthengine enabling payment processing services, the Practice Customer agrees to provide Healthengine with accurate and complete information about it and its business, and the Practice Customer authorises Healthengine to share with Stripe or Tyro (as applicable) that information and transaction information related to the Practice Customer’s use of the payment processing services provided by Stripe or Tyro (as applicable). For more information regarding Stripe’s use of data, please review Stripe’s Privacy Policy. For more information regarding payment processing services provided by Tyro, please review Tyro’s terms of use, privacy statement and consent, and privacy policy.
When using the payment processing services, the Practice Customer is responsible for:
- determining the estimated consultation fee for the appointment that was booked through the Network (“Consultation Fee)”; and
- ensuring that the Visitor or patient is notified of any changes to the estimated Consultation Fee and the reasons for the change.
The Practice Customer is liable for any refunds, disputes and any fines that arise from the Practice Customer’s use of the payment processing services. The Practice Customer agrees that Healthengine may recover any amounts it incurs in respect of any refunds, disputes and any associated fines and for which the Practice Customer is liable, from the Practice Customer. The Practice Customer will pay Healthengine the full amount of these amounts upon demand.
Healthengine reserves the right to change the Third Party Intermediary providing payment processing services through the Network.

7. Intellectual Property

All intellectual property rights in the Services, and in all Healthengine know how, software, materials and methodologies used in providing or incorporated into the Services, the Appointment Plugin or the Network (collectively the “IPR”) remain vested in Healthengine, and the Practice Customer has no rights in relation to that IPR.
The Practice Customer must use the Services solely for the purposes set out in this Agreement and not make any commercial use of the Services, including by reselling the Services to any party.
The Practice Customer must not to copy, alter, modify, reproduce, reverse-engineer, derive or develop the Services, any software used by Healthengine to provide the Services or any IPR or any part of them or attempt to do any of those things.
The Practice Customer must not use any Healthengine logo or trade mark (other than as specifically authorised under this Agreement and in materials specifically approved by Healthengine) without the prior written consent of Healthengine.
The Practice Customer grants Healthengine a licence to use, reproduce, publish, modify, translate, adapt and otherwise exploit the Content for the purpose of providing the Services. Practice Customers agree that Healthengine may place any Content on any third party websites or infrastructure or supply to third parties any Content in order to offer the Services through a different website or through a partner organisation.

8. Fees and Invoices

The Fees payable for the Services are set out in the Form (or are as agreed separately in writing with Healthengine), as may be amended from time to time in accordance with clause 14(h).
Unless otherwise agreed in writing with Healthengine, all Subscription Fees are payable monthly in advance from commencement of the Agreement. Healthengine will provide the Practice Customer with an invoice for the Subscription Fees on a monthly basis.
Where Subscription Fees are payable with reference to the number of Practitioners using the Services, and Healthengine identifies that the number of Practitioners changes (whether it be an increase or decrease), Healthengine will update the Subscription Fees to reflect that change. However, should the number of Practitioners fall below the Minimum Unit Volume in any month during the Term, the Practice Customer must pay Healthengine the applicable Subscription Fee for the Minimum Unit Volume in respect of that month. If requested by Healthengine, the Practice Customer must promptly confirm any changes to the number of Practitioners using the Services to assist with invoicing. If a change to the Subscription Fee is made in accordance with this clause 8(c):
- the change will only apply to the following billing cycle; and
- there will be no pro-rata charge or refund for the month in which the update occurs.
Except as described in paragraph (d) and unless otherwise agreed in writing with Healthengine, Transaction Fees are payable monthly in arrears from commencement of the Agreement. Healthengine will provide the Practice Customer with an invoice for Transaction Fees on a monthly basis.
For some Transaction Fees, such as those for the online payment of health services, Healthengine will collect the fee configured by the Practice Customer and remit such fee, less the amount of the associated Transaction Fee, to the Practice Customer. If a Visitor fails to pay the fee configured by the Practice Customer, Healthengine will not be responsible or liable for recovering that fee on behalf of the Practice Customer.
If a trial period has been agreed in the Form, the payment and related terms applicable to any trial period will be as specified in the Form or otherwise as agreed in writing with Healthengine.
The Practice Customer must pay all Fees required to be paid under the Agreement in accordance with the requirements, and on or before the due date, or as otherwise agreed in writing with Healthengine.
Unless otherwise agreed in writing with Healthengine, Fees must be paid online by credit card or, if the Practice Customer has provided the required direct debit authority signed by the Practice Customer, by direct debit.
If requested by Healthengine, the Practice Customer must provide valid credit card details to Healthengine for payment of any Fees. Subject to any other payment arrangements expressly agreed in writing with Healthengine, the Practice Customer authorises deduction from the card with any Fees when due and payable. If the Practice Customer is paying by direct debit and its financial institution fails to honour payment, the Practice Customer must pay the amount owing directly to Healthengine and an additional administration fee may apply.
Except in relation to disputes, in no circumstances shall the Practice Customer make any deduction or withhold payment.
If any payment is not made by the due date Healthengine may:
- suspend the Services and the Practice Customer’s use of the Appointment Plugin or its Account;
- charge interest at the rate of 5% per annum above the cash rate target published by the RBA from time to time, or the maximum rate permitted by law, whichever is lower, calculated daily on all amounts not paid to Healthengine from the due date until the date of payment in full;
- recover from the Practice Customer any reasonable costs which Healthengine incurs in recovering any outstanding amounts from the Practice Customer including but not limited to debt collection, commission, solicitor’s fees and any out of pocket expenses; and/or;
- cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered to the Practice Customer by Healthengine.
Healthengine will not suspend the Services while the Practice Customer is disputing the applicable Fees reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, Healthengine may charge a re-activation fee to reinstate the Services.
All Fees stated are exclusive of GST and other applicable taxes, which must be paid by the Practice Customer.
Certain optional Services such as SMS notification and reminder services may require the Practice Customer to pay additional fees and/or purchase SMS credits in advance. The terms of any such additional services, and the payments for them, will be provided in the Form or agreed separately in writing with Healthengine.
For the avoidance of doubt, Fees are payable by the Practice Customer for New Patients who book an appointment during the Term (including any notice period), but whose appointment is scheduled subsequent to the date of termination of the Agreement. Healthengine will provide the Practice Customer with an invoice with respect to these fees following the date of the New Patient’s relevant appointment.
In respect of fees and costs relating to a Search Marketing campaign, the Practice Customer acknowledges that:
- not all of the monthly budget is allocated directly to media services to Healthengine Search Partners (e.g. Google AdWords);
- after deduction of Healthengine service fees, the target percentage spent on media services is 70% of the total campaign monthly budget; and
- that this is an estimate only and actual media services spend will vary from campaign to campaign.
Healthengine may increase the Fees for each Service at the commencement of any Renewal Term, but no more than annually, by providing the Practice Customer with at least 30 days prior written notice. The Practice Customer may terminate the affected Service by notifying Healthengine within 30 days of the date of the written notice. Termination of such Service is effective on the date when the increase or adjustment takes effect.

9. Third Party Websites and Advertising

The Network may contain information and advertising from third parties and links to third party websites (“Third Party Content“). Healthengine does not endorse or assume any responsibility for Third Party Content, including its accuracy, and will not be liable for any reliance the Practice Customer places on Third Party Content. Healthengine may engage third parties to provide Third Party Content at its sole discretion.

10. Term, Renewal & Termination

1. This Agreement commences on the date that the Form is signed on behalf of both parties. Each service will commence on:
  - the Start Date as specified in the Service Details of a Form; or
  - if no Start Date is specified, the date of execution of a Form by the Practice Customer,
  and will continue for the Minimum Term (“Initial Term“).
2. Upon expiry of the Initial Term, the Service will automatically renew for the same period as the Minimum Term, as applicable (each a “Renewal Term”), unless either party gives written notice of termination to the other party at least 30 days in advance of any Renewal Term
3. If a trial period is applicable, then either party may terminate this Agreement immediately upon notice during the trial period.
4. If there is no trial period, or a trial period has concluded without either party terminating this Agreement, then either party may terminate this Agreement by providing at least 30 days’ notice to the other party, save for:
  - a Featured Listing if included in the Services, which must run for a minimum period of 3 months from the date of activation of the Featured Listing; and/or
  - any Service which is specified in the Service Details of a Form as having a Minimum Term of 6 months or longer, which must run for the Minimum Term from the date of activation of the applicable Service.
  For the avoidance of doubt, Fees will be payable by the Practice Customer up to the date of termination, which includes any notice period.
5. Notices of termination under paragraphs (b) and (c) above can only be accepted in writing from the practice owner or person whose credit card and authority was use
6. If Healthengine terminates the Practice Customer Agreement pursuant to clause 10(b), then it will provide a refund of any pre-paid Fees for which Services will not be provided by Healthengine.
7. Either party may immediately upon notice in writing to the other party terminate this Agreement in the event that:
  - - the other party materially breaches this Agreement and does not remedy that breach (if capable of remedy) within 30 days after receipt of a notice of that breach from the first party requesting that breach be remedied;
    - the other party materially breaches this Agreement and the breach is not capable of being remedied;
    - a party ceases to be able to pay its debts as they become due, or becomes or is in jeopardy of becoming subject to any form of insolvency or bankruptcy administration; or
    - the Practice Customer loses its relevant regulatory or other licence or authority to deliver the relevant healthcare services.
8. If Healthengine terminates this Agreement under clauses 10(g), Healthengine will not be obliged to provide the Practice Customer with any refund or credit of Fees paid.
11. Warranties, Liability & Indemnities
1. 1. 1. The Practice Customer acknowledges and agrees that Healthengine is not a healthcare provider and is not liable in any respect for the care of a Visitor. As between the Practice Customer and Healthengine, the Practice Customer is solely responsible for the care of its Visitors.
    2. The Practice Customer indemnifies Healthengine against any and all Claims arising from or related to any treatment provided (or which was failed to be provided) by the Practice Customer to a Visitor or patient, or arising from or related to the Practice Customer’s wrongful use of the Services, or arising from or related to a breach of applicable privacy laws.
    3. Healthengine acknowledges that certain laws imply terms, conditions or warranties into contracts for the supply of goods or services that cannot be excluded. Nothing in this Agreement is intended to exclude or unlawfully restrict the application of such laws.
    4. Subject to paragraph (c) above, Healthengine excludes to the fullest extent permitted by law all rights, remedies, guarantees, conditions and warranties of or in favour of any Practice Customer or third party implied or imposed in respect of goods and services related to the Practice Customer’s use of the Services and in particular:
      - Healthengine does not warrant that provision of the Services or any third party services facilitated through the Healthengine Network will be free of delays, uninterrupted, error free or free of viruses or bugs;
      - Healthengine will have no responsibility or liability for any loss or damage that a Practice Customer incurs as a result of any failure to backup data stored on its own systems, including data of appointments made and Visitor records;
      - Healthengine will have no responsibility for any loss caused by the Practice Customer’s negligence; the Practice Customer’s breach of the Agreement; or their failure to follow reasonable instructions; and
      - Healthengine does not guarantee the security of any information sent via the internet and is not responsible for any loss, corruption or interception of data which occurs outside of Healthengine’s digital systems (such as those which occur while being sent over the internet).
    5. If any term, condition, warranty or guarantee is implied or imposed into this Agreement and cannot be excluded, then to the extent permitted by law the liability of Healthengine for a breach of the implied term, condition, warranty or guarantee will be limited as determined by Healthengine in its sole discretion to:
      - in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
      - in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
    6. To the fullest extent permitted by law, Healthengine:
      1. excludes any and all liability for any consequential or indirect loss, or any loss of profits, loss of opportunity, loss of goodwill or business reputation; and
      2. limits its aggregate liability for all Claims arising under or in connection with this Agreement or the Services in each successive 12 month period from the date of commencement of this Agreement, to the Fees paid under this Agreement during that 12 month period,
      whether for breach of contract, in tort (including without limitation negligence), under statute or on any other basis.
12. Privacy Policy and Network use
1. 1. 1. The Practice Customer agrees that Healthengine has made them aware of Healthengine’s practices and policies related to the collection, use and storage of personal data, further detail of which can be found in Healthengine’s Privacy Policy set out at https://Healthengine.com.au/privacy.php. The Practice Customer consents to the use, in accordance with Healthengine’s Privacy Policy, of any personal information provided to Healthengine.
    2. The use of the Network by the Practice Customer is subject to the terms and conditions that apply to the use of and access to the Network, and the Practice Customer agrees to comply with and be bound by those terms and conditions.
    3. The Practice Customer warrants that:
      - where the Practice Customer is using the Services to collect (or initiate the collection of) personal or health information from a patient or Visitor, the Practice Customer has made and will make all necessary disclosures and obtained express or implied consent from that person in relation to the collection and disclosure of that information; and
      - where the Practice Customer provides Healthengine with information about a patient, including Visitors, the Practice Customer has obtained all necessary consents required from that individual to the collection, use and disclosure of their personal information, including health information, to Healthengine for the purposes of Healthengine providing the Services.
    4. If either party becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, that party must:
      - immediately take reasonable steps to contain the Data Incident and prevent any further serious harm to affected individuals;
      - immediately notify the other party in writing stating the:
        
        nature and details of the Data Incident;
        
        specific personal information affected; and
        
        actions taken by the relevant party at clause 12(d)(i);
      - identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 20 days of becoming aware of the Data Incident (“Data Breach Investigation”);
      - provide a copy of the report of the Data Breach Investigation in clause 12(d)(ii) to the other party on completion; and
      - engage in discussions with the other party regarding:
        
        the conduct and outcomes of the Data Breach Investigation; and
        
        in the case of an Eligible Data Breach, which party will make the relevant notifications under the Privacy Act 1988 (Cth); and
        
        where it is agreed by the parties that the other party will make the relevant notifications, approve the notifications before they are made (such approval to be given promptly and not to be unreasonably withheld).
13. Force Majeure
1. 1. 1. A party to this Agreement is not liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure. In this Agreement, “Force Majeure” means a circumstance beyond the reasonable control of the non-performing party.
    2. If any delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended for the period of the delay.
    3. Nothing in this Clause 13 applies to an obligation to pay money.
14. General
1. 1. If there is any inconsistency between any of the documents that comprise this Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Form prevail over the other documents to the extent of the inconsistency, and so on):
    - the Form;
    - these T&Cs; and
    - any other document referenced or comprised in the Agreement.
  2. The Practice Customer warrants and represents that it has not relied on any term, undertaking, inducement or representation made by, or on behalf of, Healthengine which has not been expressly stated in this Agreement.
  3. The parties agree that the terms and conditions of this Practice Customer Agreement and matters relating to its performance are confidential and shall not be disclosed to third parties unless the parties to this Practice Customer Agreement agree, except where such disclosure is required by law or is to the respective parties’ Affiliates or their advisors, who shall in turn be required to keep the disclosed information confidential.
  4. Nothing in these T&Cs is to be construed as creating a partnership between Healthengine and the Practitioner nor to constitute either party as the agent of the other.
  5. Notice may be given by email or posting an electronic message to the Account. The Practice Customer agrees that Healthengine may give notice by posting an electronic message to the Account or by sending an email to the address provided by the Practice Customer as part of the sign-up or account set-up process, or as later notified by the Practice Customer. The Practice Customer may send notices to Healthengine at support@Healthengine.com.au. Notice by email is regarded as given and received at the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
  6. Except as otherwise agreed in writing this Practice Customer Agreement forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
  7. The Practice Customer Agreement will be governed by and construed in accordance with the laws of the jurisdiction in which it operates (or, if that is more than one jurisdiction, the State of Western Australia) and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
  8. Healthengine may, at any time, amend the Practice Customer Agreement, including, but not limited to, adding or amending any fees and charges for the Services (Variation of Terms). Healthengine will provide the Practice Customer with at least 30 days’ notice of any Variation of Terms. A Variation of Terms takes effect on the date set out in the notice given by Healthengine. If the Practice Customer does not wish to continue to receive the Services after the Variation of Terms, then it may terminate this Agreement in accordance with clause 10(c). The Practice Customer’s continued use of the Services or the Network after the effective date of the Variation of Terms shall be deemed to constitute acceptance by the member of such amendments. Any rights or liabilities arises prior to the effective date of any amendment to this Agreement will be unaffected by the Variation of Terms.
  9. Neither party may assign or transfer (by operation of law or otherwise) any right or obligation under the Agreement without the other party’s prior written consent, which may not be unreasonably withheld or delayed. Any assignment in violation of this clause shall be null and void. However, Healthengine may, without the Practice Customer’s consent, assign the Agreement, any rights granted in the Agreement or any obligation, in whole or part, either
    - to an Affiliate;
    - in connection with Healthengine’s or an Affiliates’ sale of a division, product or service; or
    - in connection with a reorganisation, merger, acquisition or divestiture of Healthengine or any similar business transaction.
  10. If any provision of this Agreement for any reason is declared invalid, such declaration will not affect the validity of any remaining portion of the Agreement, which remaining portion will remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated.
  11. This Agreement may be executed in one or more counterparts. Confirmation of execution by electronic transmission or by an electronic signature shall be binding on a party executing the Agreement in this form.

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