General
(1) Permission to use the services provided by MBSPro is conditional upon you agreeing to the terms set out herein. Our services are only offered to you on condition that you read and accept all the terms. By clicking an acceptance button, accessing or using the services, you will be deemed to have accepted the terms. If you do not wish to accept the terms, you must not use the services.
(2) In these terms, when we refer to us, we or our, we mean MBSPro. When we refer to you, your or customer, we are referring to the individual, business or company that will be using our services. The individual accepting these terms on behalf of the customer represents and warrants that they have full authority to bind the customer to these terms. We and you are collectively referred to in these terms as parties and each as a party. Any words in bold text will have the same meaning every time they are used in these terms.
(3) Our services are the provision of our software to you as a service, as well as any technical support, as described on our website www.mbspro.com.au. The software includes any technical specifications or configuration documentation (together the documentation), updates, modifications and releases. The intended purpose of our services is to assist medical practitioners in the delivery of health services, as further described on the website.
(4) The start date of these terms is the date we provide you with an account to access the services.
(5) If the services are provided to you for evaluation or on a free trial basis, the evaluation or free trial services will be subject to these terms, except that all warranties, technical support obligations, and other liabilities and obligations in relation to the evaluation and free trial services are disclaimed by us and excluded to the extent permitted by law. We can terminate the evaluation or free trial at any time by giving you written notice.
Services
(6) From the start date and during the term, we will allow you to use and access the services in accordance with these terms.
(7) We reserve the right to change or remove features of the services from time to time and may do so in our sole discretion. We will give you reasonable advance notice of any material changes to the services unless it is not reasonably practicable to do so. There may be an additional fee for some new services or features.
Licence
(8) In consideration for payment of the fees for the services, we grant you a non-exclusive, non-transferable (except as otherwise permitted under these terms), revocable, non-sublicensable licence to access and use the services during the term, in accordance with the documentation, these terms and our intended purpose for the services.
(9) The licence permits access and use of the services by the number of authorised users specified at the time of purchase, or if no number was specified, no more than one authorised user.
Licence restrictions and prohibited use
(10) You must not and you must not permit any person to:
a. reverse engineer the software or services;
b. make any modifications to the software or services;
c. commercialise the software or services, including by selling, lending or renting them;
d. create any product or service based on the software or services;
e. transfer the software or services to anyone else, including by sub-licensing or assigning them;
f. reveal your account password to other users or allow use of your account to those who are not authorised users;
g. try to get around any technical protection measures in the software and services;
h. continue to use or access the software or services after your rights to use them have expired or been terminated;
i. make any unauthorized copies of any copyrighted material owned or licenced by us;
j. do any other thing that would be inconsistent with or breach our intellectual property rights in the software and services;
k. use the software or services to do anything illegal;
l. use the software or services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
m. interfere with anyone else’s use of the software or services;
n. introduce malicious programs into our system; or
o. use the software or services to carry out security breaches or disruptions of a network (including accessing data of which you are not the intended recipient).
(11) You acknowledge and agree that these terms incorporate by reference the terms of any acceptable use policy as set out on the website or provided to you from time to time.
Support and service levels
(12) During the term, we will provide technical support in accordance with any service levels set out on the website, during the support hours set out on the website, or if not specified, during AEST business hours.
Intellectual property rights
(13) Intellectual property rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patentable or patented material, computer software, circuit layouts, databases, source codes, goods, images, inventions, processes, copyright, design rights, know-how, trade marks and trade secrets), whether registered or unregistered, and whether created before, during the operation of this agreement, or after its expiry or termination.
(14) You acknowledge and agree we own or hold all intellectual property rights in the software, services and documentation.
(15) A party’s ownership of, or any right, title or interest in, any intellectual property rights in an item which exists prior to the start date (pre-existing material) will not be altered, transferred or assigned by virtue of these terms.
(16) You grant us a non-exclusive, royalty free, non-transferable and revocable licence to use any feedback you provide as reasonably required for us to improve the services.
(17) We have the discretion (but not obligation) to terminate your access to and use of the services if we determine that you have infringed our intellectual property rights or those of third parties.
Customer data
(18) You grant to us permission to record, transmit, temporarily store, access, process, and use the information, data or content (including patient health information) you provide to us or allow us to access via the services (customer data), but only for the limited purpose of supplying the services, including to enable you to access and use the services.
(19) We may use de-identified customer data for other purposes, such as:
a. to test, enhance and otherwise modify the services whether requested by you or not;
b. to develop other services; and
c. as reasonably required for the performance of our obligations under these terms.
(20) You represent and warrant that:
a. the customer data is your sole and exclusive property, or you have secured all authorisations and rights to use the customer data as applicable, including by obtaining the express consent of your patients for their personal and medical information to be shared with us and used for the intended purpose, in accordance with all applicable privacy laws;
b. the customer data does not breach any relevant laws, regulations or codes; and
c. the customer data does not infringe the intellectual property rights of any third party.
(21) You acknowledge and agree that:
a. you have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all customer data. The services rely on customer data as supplied by you. Except as required under applicable law, we do not assume any duty or obligation to correct or modify customer data;
b. any collation, conversion and analysis of customer data performed as part of the services may be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of customer data. We are not liable for any such errors, omissions, delays or losses. You acknowledge and agree you are responsible for adopting reasonable measures to limit the impact of such loss or error; and
c. we are not responsible for any corruption or loss of any customer data if such corruption or loss is due to an act or omission by you or your personnel (employees, contractors, officers and agents).
Privacy
(22) You and we both agree to comply with our respective obligations under applicable privacy laws in relation to personal information collected, used or disclosed in connection with the services and these terms.
(23) Details on how we comply with privacy laws is available in our Privacy Notice on the website. We reserve the right to amend our Privacy Notice as required from time to time.
(24) These terms supplement and incorporate the Privacy Notice.
(25) You warrant that you have obtained each of your patient’s informed consent for us to collect, process and temporarily store the personal information contained in the customer data for the intended purpose.
(26) You agree to ensure that any collection, processing, use, disclosure and transfer by you of personal information in connection with the performance of your obligations under these terms complies with all applicable privacy laws.
(27) You must take all necessary steps to ensure that the personal information held or accessed by you in connection with these terms is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure (data breach). You must promptly give us written notice of any actual or suspected data breach and provide information, assistance and other cooperation as we reasonably request in respect of the data breach. We will take all reasonable steps to notify you in writing if we become aware of any actual, threatened or suspected data breach.
(28) You must co-operate with any reasonable requests or directions we make relating to the security, use, disclosure, and transfer of personal information, our legal obligations relating to the personal information, complaints relating to the personal information and the rights of individuals to access and correct the personal information or opt out of receiving any communications from or on your behalf.
Confidentiality
(29) Confidential information means in relation to a party, information that is by its nature confidential, is designated as confidential, or that the other party know or ought reasonably to know is confidential, including any information relating to the financial affairs, assets or liability of a party, their personnel, plans, strategies, customers, suppliers, products, services and intellectual property rights.
(30) Subject to clause 31, each party must (and must ensure that its personnel) keep confidential and not use or permit any unauthorised use of all confidential information.
(31) Clause 30 does not apply where:
a. the information is in, or comes into, the public domain (other than by a breach of clause 30 by the relevant party);
b. the relevant party has the prior written consent of the party that disclosed the confidential information;
c. the disclosure is required by law;
d. the disclosure is required in order to comply with these terms, provided that the party disclosing the confidential information ensures the recipient complies with the terms of clause 30; and
e. the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these terms and provided that the party disclosing the confidential information ensures the adviser complies with the terms of clause 30.
(32) Each party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of clause 30. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of clause 30.
Customer responsibilities
(33) You agree to:
a. provide all reasonable assistance and cooperation to enable us to supply the services in an efficient and timely manner; and
b. use reasonable endeavours to ensure the integrity of the customer data.
(34) You acknowledge and agree that:
a. you are responsible for all users using the services including your personnel and any authorised users;
b. your use of the services will be at your own risk, except as otherwise expressly provided by these terms; and
c. you are responsible for maintaining the security of your account and passwords and we will not be liable for any loss or damage from your failure to comply with this security obligation;
Payment and GST
(35) You must pay us the fees for the services as specified on the website or as otherwise agreed by the parties. Fees are in AUD and are payable in advance.
(36) If payment has not been made in accordance with these payment terms, we may immediately cease providing the services and charge you interest at a rate equal to the Reserve Bank of Australia’s then current cash rate plus 8%, calculated daily and compounding monthly on any such amounts unpaid after the due date.
(37) If you require the use of a purchase order, you acknowledge and agree that to the extent of any inconsistency between these terms and any terms and conditions attached to your purchase order, these terms will prevail.
(38) If GST is payable on any supply made under these terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time the consideration is to be provided under these terms and must be paid in addition to the consideration expressed elsewhere in these terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
(39) If an adjustment event arises in respect of any supply made under these terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
(40) If the recipient is required under these terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
(41) The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Warranty and disclaimer
(42) We warrant that during the term, the services will perform substantially in accordance with the documentation. Your sole and exclusive remedy for breach of the foregoing warranty is, at our option, the replacement or reperformance of the services, or a credit for the period in which the services did not materially comply. This warranty is conditional upon you providing us prompt written notice of the services’ non-conformance and using the services in accordance with these terms and the documentation.
(43) Except as provided in clause 42 and to the extent permitted by law, we disclaim all warranties, terms and conditions of any kind, whether express or implied by law or fact or on any other basis. We do not warrant that the services will be error-free, completely secure, failsafe, free from viruses, or will operate without interruption or that, except as set out in these terms, the services will be performed in the manner intended by you or the services will meet your requirements or be fit for purpose.
(44) The services do not constitute medical advice and are not intended to, nor should they be used to diagnose or make recommendations to a patient. The services are not classified as medical devices under applicable laws relating to the regulation and administration of therapeutic goods.
(45) We do not warrant or guarantee the accuracy of transcribed materials, which may be affected by factors external to the services, such as poor recording conditions. You are responsible for reviewing and checking the output of the services and making corrections where required to ensure the output is correct.
(46) We do not warrant the accuracy of suggested MBS item numbers. These are provided as suggestions only and it is your responsibility to review and assess suggested MBS item numbers in the context of the patient consultation.
Indemnity and liability
(47) You are liable for the acts and omissions of all your personnel and authorised users as if they were done by you.
(48) Despite anything to the contrary (but subject to clause 49), to the maximum extent permitted by law:
a. our maximum aggregate liability arising from or in connection with these terms and the services will be limited to, and must not exceed, in any contract year, the total amount of fees you have paid to us in the prior contract year; and
b. we will not be liable to you for (i) any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; (ii) lack of access to or use of or inability to access or use the services; (iii) any conduct or content of any third party in relation to the services; nor (iv) unauthorised access, use or alteration of your transmissions or content,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. A contract year is a 12-month period commencing on the start date and each subsequent anniversary of the start date.
(49) Clause 48 will not apply to our liability to you for:
a. fraud or criminal conduct;
b. death or personal injury; or
c. any liability that cannot be limited by applicable law.
(50) Despite anything to the contrary, to the maximum extent permitted by the law, we will have no liability, and you release and discharge us from all liability, arising from or in connection with any:
a. failure or delay in providing the services;
b. breach of these terms; or
c. misuse of the services,
where caused or contributed to by any:
d. event or circumstance outside our reasonable control;
e. a fault or defect in
any item of your computing environment; or
f. act or omission of you or your personnel.
(51) We use third-party service providers to host the services. We will not be liable for any interruption to the services, unavailability or outage, or any interruption, unavailability or outage of your systems, caused by any such third-party service provider.
(52) For Australian consumers only: For customers that are consumers under the Australian Consumer Law (ACL), the following provisions apply:
a. The benefits of the warranties and remedies in these terms are in addition to any other rights and remedies in relation to the services that you may be entitled to under the ACL.
b. Our goods and services come with guarantees that cannot be excluded under the ACL. For major failures with the services, you are entitled: (i) to cancel your service contract with us; and (ii) to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services.
(53) You agree to indemnify, and hold us harmless, against all liabilities and claims arising out of or in connection with:
a. any and all unauthorised use of the services;
b. injury to or death of any person caused by any act or omission by or on behalf of you or your personnel; and
c. damage to any real or tangible property caused by any act or omission by or on behalf of you or your personnel.
Term and termination
(54) The term of these terms takes effect from the start date and continues for the term for which you have subscribed to the services, unless terminated earlier in accordance with these terms.
(55) If we reasonably believe you have breached these terms, we may immediately suspend the services or terminate these terms.
(56) You may terminate these terms at any time by contacting us or via account management functionality on our website. We will not refund any fees you have paid.
(57) Following termination of these terms:
a. we will immediately stop performing the services and return to you, delete or destroy all your confidential information and customer data;
b. you will immediately cease using the services, return to us, delete or destroy all our confidential information and pay the fees for all services completed and unpaid; and
c. rights and obligations that are intended to or by nature survive termination will continue to have effect.
(58) After termination of these terms, we have no obligation to retain data for the services or any customer data, which may be permanently deleted as part of our record and information management and in accordance with applicable laws. If any customer data is stored by the services, you are solely responsible for retrieving that customer data.
Dispute resolution
(59) If there is a dispute arising from or in connection with these terms or the services, the party claiming there is a dispute must give a written dispute notice to the other party setting out the details of the dispute and proposing a resolution.
(60) Within 10 business days after receipt of the dispute notice, the other party must (if applicable, by its senior executives or senior managers who have authority to reach a resolution on its behalf) meet at least once to attempt to resolve the dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.
(61) If the parties are unable to resolve the dispute with 15 business days after receipt of the dispute notice, any party may (by written notice to the other) submit the dispute to mediation administered by the Australian Disputes Centre (ADC), with such mediation to be conducted in good faith, in New South Wales and in accordance with the ADC Guidelines for Commercial Mediation.
(62) The costs of mediation are to be split between the parties, provided that each party will bear its own costs in relation to the mediation.
(63) If the dispute has not been settled within 20 business days after the appointment of a mediator, or such other period as agreed in writing between the parties, the dispute may be referred by any party (by written notice to the other party) to litigation.
(64) A party may not commence court proceedings relating to any dispute without first complying with clause 59 to clause 61 unless they are seeking urgent interlocutory relief.
(65) Notwithstanding the existence of a dispute, the parties must continue to perform their obligations under these terms.
Miscellaneous
(66) These terms contain the entire understanding between us and you and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of their subject matter.
(67) These terms may only be amended by written document executed by us and you.
(68) Nothing in these terms is intended to create a partnership, joint venture or agency relationship between the us and you. Nothing in these terms allows either us or you to bind each other in any way.
(69) Notices:
a. A notice or other communication given under these terms must be in writing, in English and signed by the sender and addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the parties.
b. The customer’s notice details are set out in the customer’s account. Our notice details are set out on the website. A party may change its notice details by written notice to the other party, which, for the customer, is by updating your account, and for us, is by updating our details on the website.
c. A notice or communication is taken as having been given:
i. when left at a party’s current address for notices;
ii. if mailed, on the third business day after posting (if delivered to an address within the same country) or on the tenth business day after posting (if delivered to an address within another country); or
iii. if sent by email, if sent before 5pm on a business day in the place of receipt then on the business day when it is sent, otherwise on the following business day.
(70) If performance of these terms or any obligation under them is prevented, restricted or interfered with by reasons of any event or circumstance outside the reasonable control of a party and the affected party gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the event is removed.
(71) Any failure or delay by a party in exercising a power or right (either wholly or partially) in relation to these terms does not operate as a waiver or prevent that party from exercising that power or right or any other power or right. A waiver must be in writing.
(72) You must not assign, transfer or otherwise deal with all or any of your rights or obligations under these terms without our prior written consent, which must not be unreasonably withheld. Any purported dealing in breach of this clause is of no force or effect.
(73) The rights arising out of these terms do not exclude any other rights of either us or you. Each indemnity in these terms is a continuing obligation that is separate and independent from other obligations under these terms. We are not obliged to take any action, or incur any expense, before enforcing any indemnity under these terms.
(74) If a provision of these terms is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from these terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these terms.
(75) These terms are governed by the laws of New South Wales, Australia. We and you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.
.png)