These HealthEngine Practitioner Terms and Conditions (“T&Cs”) apply to the supply of services by HealthEngine Pty Ltd, ACN 138767021 (“HealthEngine”) to Practitioners through the HealthEngine Chat app (“App”). A Practitioner utilising or accessing the App is deemed to agree to these T&Cs.
1 Definitions
Account
means an online account made available to a Practitioner by HealthEngine to enable the Practitioner to manage, among other things, its profile.
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.
Consultation Fee
means the fee payable by the Patient to the Practitioner, as set by the Practitioner and notified to HealthEngine, for the provision of the Practitioner’s advice or consultation via the App.
Content
means any information or material of any kind published or made available to HealthEngine by the Practitioner in connection with the App (including communications with patients sent via the App).
Fees
means the fees payable by a Practitioner to HealthEngine for the provision of the App, as specified on the App registration page.
Patient
means a patient who uses the App to communicate with a Practitioner.
Practitioner
means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a practice).
Practitioner Content
means any details, content, images, data or information relating to a Practitioner and submitted by the Practitioner to HealthEngine, including the Practitioner’s name and service details.
Term
means the period from commencement of these T&Cs until termination of these T&Cs in accordance with clause 10.
2 HealthEngine Key Obligations
HealthEngine must:
(a) provide the App in accordance with these T&Cs;
(b) provide the App in a competent and diligent manner; and
(c) collect, store and disclose all personal information received by HealthEngine from the provision of the App in accordance with the HealthEngine Privacy Policy.
3 Practitioner Key Obligations
The Practitioner must:
(a) pay the Fees;
(b) use the App in accordance with these T&Cs for the sole purpose of communicating with, and providing consultations to, Patients;
(c) hold throughout the Term all licences with all relevant regulatory boards and/or other bodies, councils or authorities necessary to enable the Practitioner to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practitioner operates;
(d) 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;
(e) 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;
(f) notify HealthEngine of any change to any of the Practitioner’s qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to Patients or of any breaches of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence by the Practitioner which may impact its ability to provide healthcare services to Patients;
(g) actively work with HealthEngine to promote HealthEngine and the App to its existing patients and clients so that those patients and clients may become Patients;
(h) promptly contact directly each Patient when a Patient uses the App to communicate with the Practitioner;
(i) notify HealthEngine of any complaints relating to the App received by the Practitioner;
(j) maintain all insurance policies which a reasonably prudent healthcare provider in the Practitioner’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 Practitioner;
(k) maintain as confidential and keep secure all information regarding a Patient and any other data received from HealthEngine, and not disclose or use any information regarding a Patient or any other data received from HealthEngine other than for the purposes of these T&Cs or the provision of the relevant healthcare services (except, in the case of information regarding a Patient, with the consent of that Patient);
(l) maintain as confidential and keep secure any passwords or other security credentials relating to the App;
(m) comply with all applicable privacy and information laws and regulations so far as they relate to the Practitioner’s collection of Patients’ personal and health information and will indemnify HealthEngine against Claims that result from the Practitioner’s non-compliance with this provision;
(n) notify HealthEngine immediately of any authorised access of, or data breach relating to, the App;
(o) comply with all applicable laws in relation to its use of the App;
(p) use the App in accordance with HealthEngine’s guidelines or instructions;
(q) not use the App to:
(i) 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 or otherwise objectionable;
(ii) encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
(iii) harm children in any way;
(iv) impersonate a person or entity or falsely state their affiliation with a person or entity;
(v) 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
(vi) transmit or otherwise make available any material that contains software viruses or any other code, files designed to interrupt, destroy or limit the functionality of any software or hardware or telecommunications equipment; and
(r) not use the App to advertise or perform any commercial or other form of solicitation that is not authorised by HealthEngine, unless they are proprietary (specific) to the Practitioner or have otherwise been approved by HealthEngine in writing.
4 Use of the App
The use of the App by the Practitioner is subject to the following terms and conditions:
(i) HealthEngine grants to the Practitioner a limited, non-transferable, revocable right to access and use the App solely for the Practitioner’s own business purposes as a practitioner providing health services;
(ii) except as permitted under these T&Cs and applicable laws, no part of the App may be otherwise reproduced, adapted or transmitted in any form by any process without the specific written consent of HealthEngine;
(iii) copyright in all content contained on the App, including but not limited to text, drawings, photographs and page layout, subsists under, and is protected by, the Copyright Act 1968 (Cth) and international copyright laws and, unless stated otherwise, is owned by HealthEngine or used by HealthEngine under licence; and
(iv) HealthEngine (or its licensors) retain all right, title, and interest in and to the App, and nothing the Practitioner does on or in relation to the App will transfer any intellectual property rights to the Practitioner or (except for the licence referred to in paragraph (i) above) permit the Practitioner to exercise any intellectual property rights unless this is expressly stated.
5 The App
(a) HealthEngine may make such changes to the App, its internal processes and the interface of the App with the Practitioner 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 Practitioner, it will provide the Practitioner with notice of the change, and if the Practitioner does not wish to continue to use the App, then it may terminate these T&Cs in accordance with clause 10(b).
(b) HealthEngine may engage subcontractors or individuals on a consultancy basis to assist in the provision of the App.
(c) The Practitioner is solely responsible for its provision of healthcare and managing its relationship with its patients (including a Patient). HealthEngine is not a party to any dealings, arrangements, agreements or similar between the Practitioner and the Patient and the Practitioner must not purport to bind HealthEngine in any way.
6 Intellectual Property
(a) All intellectual property rights in the App, and in all HealthEngine know how, software, materials and methodologies used in providing or incorporated into the App (collectively the “IPR”) remain vested in HealthEngine, and the Practitioner has no rights in relation to that IPR.
(b) The Practitioner must use the App solely for the purposes set out in these T&Cs and not make any commercial use of the App, including by reselling the App to any party.
(c) The Practitioner must not to copy, alter, modify, reproduce, reverse-engineer, derive or develop the App, any software used by HealthEngine to provide the App or any IPR or any part of them or attempt to do any of those things.
(d) The Practitioner must not use any HealthEngine logo or trade mark (other than as specifically authorised under these T&Cs and in materials specifically approved by HealthEngine) without the prior written consent of HealthEngine.
(e) The Practitioner grants HealthEngine a licence to use, reproduce, publish, modify, translate, adapt and otherwise exploit the Content for the purpose of providing the App.
7 Fees and Invoices
(a) The Fees payable for the App are set out on the App registration page (or are as agreed separately in writing with HealthEngine), as may be amended from time to time in accordance with clause 14(h).
(b) The Practitioner agrees that HealthEngine will collect Consultation Fees from Patients on the Practitioner’s behalf and remit Consultation Fees, less the amount of the Fees for each consultation, to the Practitioner. If a Patient fails to pay any Consultation Fee, HealthEngine will not be responsible or liable for recovering that Consultation Fee on behalf of the Practitioner.
(c) Unless otherwise agreed in writing with HealthEngine, the Practitioner will pay the Fees by allowing HealthEngine to deduct the relevant amount from the Consultation Fees to be remitted to the Practitioner.
(d) The Practitioner must pay all Fees required to be paid under these T&Cs in accordance with the requirements, and on or before the due date, or as otherwise agreed in writing with HealthEngine.
(e) If requested by HealthEngine, the Practitioner 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 Practitioner authorises deduction from the card with any Fees when due and payable.
(f) In no circumstances shall the Practitioner make any deduction or withhold payment for any reason whatsoever.
(g) If any payment is not made by the due date HealthEngine may:
(i) suspend the App and the Practitioner’s use of its Account; and/or
(ii) cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered to the Practitioner by HealthEngine.
(h) All Fees stated are exclusive of GST and other applicable taxes, which must be paid by the Practitioner.
8 Publicity and Third Party Use and Disclosure
The Practitioner agrees that HealthEngine may use any Content for HealthEngine’s promotion and marketing purposes and grants HealthEngine an irrevocable licence to use such Content in this way, providing that HealthEngine does not knowingly use any Content for promotion or marketing purposes in a way which would detract from the good name and reputation of the Practitioner or breach any applicable law in relation to privacy. The Practitioner must obtain any necessary consents or approvals for such use of the Content. Such licence shall continue despite any termination of these T&Cs.
The Practitioner agrees that HealthEngine may place any Content on any third party infrastructure or supply to third parties any Content in order to offer the App through a different infrastructure or through a partner organisation.
9 Third Party Websites and Advertising
The App may contain information and advertising from third parties and links to third party websites (“3rd Party Content“). HealthEngine is not responsible for 3rd Party Content, including its accuracy, and will not be liable for any reliance the Practitioner places on 3rd Party Content. HealthEngine may engage third parties to provide 3rd Party Content at its sole discretion.
10 Term, Renewal & Termination
(a) These T&Cs commence on the date that the Practitioner accepts these T&Cs by ticking the “I accept” box on the App registration page.
(b) You may cancel your registration and discontinue using the App at any time electronically by following the prompts on the App.
(c) HealthEngine may immediately terminate these T&Cs, and suspend your use of the App, in the event that a Practitioner:
(i) materially breaches these T&Cs;
(ii) 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;
(iii) loses its relevant regulatory or other licence or authority to deliver the relevant healthcare services; or
(iv) behaves in a way which would clearly detract from the good name and reputation of HealthEngine,
and HealthEngine will not be obliged to provide the Practitioner with any refund or credit of or in relation to Fees paid.
If we terminate these T&Cs, you must cease accessing and using the App.
11 Warranties, Liability & Indemnities
(a) The Practitioner will ensure that they have obtained the necessary consent of each Patient to disclose the personal and health information of the Patient to HealthEngine.
(b) The Practitioner acknowledges and agrees that HealthEngine is not a healthcare provider and is not liable in any respect for the care of, or advice provided to, a Patient. As between the Practitioner and HealthEngine, the Practitioner is solely responsible for the care of its Patients. HealthEngine is not responsible for maintaining and storing any health or medical records on behalf of the Practitioner. If the Practitioner is providing advice or communicating with a Patient through the App, the Practitioner must create their own record of the communication and advice provided.
(c) The Practitioner indemnifies HealthEngine against any and all Claims arising from or related to any treatment or advice provided (or which was failed to be provided) by the Practitioner to a Patient or arising from or related to the Practitioner’s wrongful use of the App.
(d) 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 these T&Cs is intended to exclude or unlawfully restrict the application of such laws.
(e) Subject to paragraph (d) above, HealthEngine excludes to the fullest extent permitted by law all rights, remedies, guarantees, conditions and warranties of or in favour of any Practitioner or third party implied or imposed in respect of goods and services related to the Practitioner’s use of the App and in particular, HealthEngine:
(i) does not warrant that the provision of the App will be free of delays, uninterrupted, error free or free of viruses or bugs or other harmful components;
(ii) will have no responsibility or liability for any loss or damage that a Practitioner incurs as a result of any failure to backup data or Content, Patient records or the content of communications on the App;
(iii) will have no responsibility for any loss caused by the Practitioner’s negligence, the Practitioner’s breach of these T&Cs or failure to follow reasonable instructions; and
(iv) does not guarantee the security of any information sent to the App via the Internet and is not responsible for any loss, corruption or interception of data sent to or from the App which occurs outside of HealthEngine’s digital systems (such as those which occur while being sent over the internet).
(f) If any term, condition, warranty or guarantee is implied or imposed into these T&Cs 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:
(i) 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
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
(g) To the fullest extent permitted by law, HealthEngine:
(i) excludes any and all liability for any consequential or indirect loss, or any loss of opportunity, loss of goodwill or business reputation; and
(ii) limits its aggregate liability for all Claims arising under or in connection with these T&Cs or the App in each successive 12 month period from the date of commencement of these T&Cs, to the Fees paid under these T&Cs 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
The Practitioner 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. The Practitioner consents to the use, in accordance with HealthEngine’s Privacy Policy, of any personal information provided to HealthEngine.
13 Force Majeure
(a) A party to these T&Cs is not liable for any delay or failure to perform its obligations pursuant to these T&Cs if such delay is due to Force Majeure. In these T&Cs, “Force Majeure” means a circumstance beyond the reasonable control of the non-performing party.
(b) 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.
(c) Nothing in this Clause 13 applies to an obligation to pay money.
14 General
(a) If there is any inconsistency between any of the documents that comprise these T&Cs, the order of priority for the purposes of construction is as follows (where the provisions of these T&Cs prevail over the other documents to the extent of the inconsistency):
(i) these T&Cs; and
(ii) any other document referenced or comprised in these T&Cs.
(b) The Practitioner 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 these T&Cs.
(c) The parties agree that the terms and conditions of these T&Cs and matters relating to its performance are confidential and shall not be disclosed to third parties unless the parties to these T&Cs agree, except where such disclosure is required by law or is to the respective parties’ advisors, who shall in turn be required to keep the disclosed information confidential.
(d) Nothing in these T&Cs is to be construed as creating a partnership between HealthEngine and the Practitioner nor to constitute any party the agent of the other party.
(e) Notice may be given by email. The Practitioner agrees that HealthEngine may give notice by sending an email to the address provided by the Practitioner as part of the sign-up or account set-up process, or as later notified by the Practitioner. The Practitioner may send notices to HealthEngine at support@HealthEngine.com.au.
(f) Except as otherwise agreed in writing these T&Cs forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
(g) These T&Cs 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.
(h) HealthEngine may, at any time, amend these T&Cs, including, but not limited to, adding or amending any Fees or other charges for the App (Variation of Terms). HealthEngine will provide the Practitioner with notice of any Variation of Terms through a pop-up notice in the App. A Variation of Terms takes effect on the date set out in the notice given by HealthEngine. If the Practitioner does not wish to continue to receive the App after the Variation of Terms, then it may terminate these T&Cs and discontinue use of the App in accordance with clause 10. The Practitioner’s continued use of the App 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 arising prior to the effective date of any amendment to these T&Cs will be unaffected by the Variation of Terms.
(i) If any provision of these T&Cs for any reason is declared invalid, such declaration will not affect the validity of any remaining portion of these T&Cs, which remaining portion will remain in full force and effect as if these T&Cs had been executed with the invalid portion thereof eliminated.
