APOONA HEALTH SOLUTIONS

PRODUCTS AND SERVICES

TERMS AND CONDITIONS

1.1               APOONA Health Solutions Pty Ltd (ABN 88 637 488 003) (APOONA, we, us, or our) is a provider of unique and customised oral health care products and services solutions utilising digital dentistry technologies based on scientific evidence and biological research. APOONA provides dental implant planning and assessment and treatment support services (Services) and manufactures surgical implant guides (Products) to referring dentists, dental specialists or maxillofacial surgeons, (Clinicians) and Dental Technicians, dental prosthetists or representatives of a Denture Clinic and Laboratories (Labs) through an online portal it operates called the APOONA Portal (Portal).

1.2               The Portal is an online platform on web browsers and mobile applications that includes functionalities that Clinicians and Labs can access to order and receive the Services and/or Products from us.

1.3               We do not provide medical, dentistry or healthcare clinical services and we do not endorse nor recommend any of the Clinicians practices or the Labs. The Services and Products are provided to the Clinicians or the Labs, and are for each Clinicians or Labs considered professional use in diagnostic and dental treatment only. We do not provide Services, Products, data nor recommendations directly to the public or a Patient.

1.4               You, as an individual dentist, dental specialist or maxillofacial surgeon(Clinician, you, your), are wishing to use the Portal, Services and/or Products for an assessment of the planned implementation of your patient’s dental implant treatment. In order to join the Portal and to order/acquire the Services and/or Products as a Clinician you must be a registered dental practitioner, dentist and/or oral maxillofacial surgeon, registered with the Dental Board of Australia (or equivalent in your country as approved by us) or medical association and register for a Portal Account.

1.5               You as an individual dental technician, dental prosthetist, dental laboratory or a denture clinic (Lab, you, your) are wishing to use the Portal, Services and/or Products for an assessment of the planned implementation of a Patient’s dental implant treatment. In order to join the Portal, you must register for a Portal Account.

1.6               Unless specifically linked to a Lab or Clinician all obligation stated as applying to ‘you’ apply to both Clinicians and Labs.

1.7               These Terms and Conditions set out the terms on which you may access and use the Portal and order/acquire the Services and/or Products provided by us. These Terms and Conditions and any linked information such as the Privacy Policy and Website Terms and Conditions referred to in these Terms and Conditions constitute the terms of a binding Agreement between you and us (Agreement) upon your registration for a Portal Account and/or acquiring any Services or Products.

1.8               By accessing and/or using any of the Portal, Services and/or Products you confirm that you have read and understand and agree to be bound by the Agreement. We may modify or replace these Terms and Conditions and any linked information from time to time and we will notify you of any updates we make via your email address specified in your Account.

1.9               If you do not wish to accept these terms of the Agreement or any variation that we make to the Agreement you must not and cannot use the Portal, Services and/or Products and must immediately cease all use of Portal, Services and/or Products. Your continued use of the Portal, Services and/or Products is your deemed acceptance of the Agreement, inclusive of any updates.

1.10            You agree to these Terms and Conditions and the Agreement for yourself and on behalf of any Practice or entity for whom you access and use the Portal, Services and/or Products and must include the ACN or ABN (or similar in your country) of the entity entering into the Agreement at the registration of the Account.  If you register on behalf of an organisation the word “you” and any variations of the word in these Terms and Conditions and Agreement will be deemed to be a reference to both you in your individual personal capacity and the organisation.

In this Agreement, unless the context otherwise requires, capitalised terms are as defined below:

3D	means of three dimensions;
3D scan	means the three-dimension digital intraoral scan of an individual or model scan;
Account	means an online account to the Portal made available to a Clinician or Lab by us to enable access to the Services and/or Products;
AGuide (Product)	means the 3D Surgical Guide with titanium inserts and made from biocompatible 3D printing resin for use in dental treatments (although patient hypersensitivity or allergy to such components may arise)  to support fully or partially guided implant surgery;
APOONA Portal (Portal)	means our online platform including sys.apoona.com providing access to dental implant planning and assessment and treatment support services operated by us;
AReport	means the outcome from the implant associated assessment in the form of a written report;
ASTL File	means computer file encoded using the STL file format containing the complete implant planning to enable the 3D printing of the Surgical Guide;
CBCT scan	means cone beam computed tomography scan;
Clinician	means an individual that is a provider of dental healthcare services including implant placement and is a registered member of the Australian Health Practitioner Regulation Agency (AHPRA) and/or in their own country by their dental and/or medical association (either as a sole Clinician or with others within a Practice) who is an Account holder under this Agreement.  For example, a Clinician may be dentist, dental specialist or maxillofacial surgeon;
Clinician Data	means any details, content, images, data or information, submitted, uploaded or stored by a Clinician or a Lab (including Patient Personal Information including health information) accessing and using the Portal or the Services;
Confidential Information	means all trade secrets, ideas, know-how, concepts, methods of working, management, operations, procedures, financial and business information whether in writing or otherwise relating to the parties, but does not include information that is in the public domain for reasons other than unauthorised disclosure;
Dental Technician	means a technician who provides services and products to its customers (Clinicians) for restorative, prosthetic, orthodontic, surgical, implant or other oral treatment as well as other customised oral health products;
Dental Prosthetist	means independent dental clinician who provide removable dentures and flexible mouthguards to the public;
Denture Clinic	means a dental clinician business entity that provides removable dentures and flexible mouthguard services;
Form	means the online form completed by a Clinician or Lab and submitted via the Portal requesting Services and/or Products;
Gold Service	has the meaning given to that term in clause 3.5(a);
GST	means the ‘GST’ as defined in the GST law (that is, A New Tax System (Goods and Services Tax) Act 1999 (Cth)) and any other value-added tax, additional tax, penalty, fine, interest or other charge under the GST law or any similar law;
Insolvency	means being at risk of being unable to pay the debts as they become due and includes any form of bankruptcy or administration;
Intellectual Property Rights	means patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registrations of such, schematics, industrial designs, inventions, know-how, trade secrets, computer software programs and other intangible proprietary information;
Lab	means the collective reference to Dental Technicians and Laboratories;
Laboratory	means an entity that provides services and products to its customers (who are Clinicians) for restorative, prosthetic, orthodontic, surgical, implant or other oral treatment as well as other customised oral health products;
Losses	means all losses, costs, damages, expenses, penalties, third party claims and other liabilities an including all legal and other professional expenses on a solicitor client basis incurred in connection with investigating, disputing, defending or settling any claim, action, demand or proceeding and also includes all foreseeable and consequential loss;
Patient	means a patient of a Clinician whose Personal Information may be entered via the Portal and/or a Form and/or attachments submitted by the Clinician or Lab;
Personal Information	has the meaning given to that term in the Privacy Act 1988 (Cth);
Platinum Service	has the meaning given to that term in clause 3.5(a);
Practice	means a dental practice, clinic or office within which one or more Clinicians who provide dental healthcare services (which could be a sole Clinician or an entity or other association);
Privacy Policy	means the APOONA Privacy Policy and can be found at Here
Service Deliverables	means any of the AReport, ASTL File or AGuide;
Services	means dental implant planning and assessment and treatment support services provided by us through the Portal resulting with the AReport and offered at different options of Silver Service, Gold Service and Platinum Service;
Silver Service	has the meaning given to that term in clause 3.5(a);
STL File	means any computer file encoded using the STL file format, typically denoted with the filename extension “.stl”;
Surgical Guide	is a Product and is described as the 3D printed replication of the surface of a Patient’s intraoral setting using intraoral scans (provided by the Clinician or Lab) or model scanned of the surgical implant site. A Surgical Guide has titanium sleeve inserts to support guided surgery and is used by a Clinician as a drill guide for the Clinician approved implant position during the implant surgery;
Term	means the period from the date of registration of an Account until termination or expiry of the Agreement in accordance with clause 8;
Third Party Content	has the meaning given to that term in clause 11; and
Website and Mobile Applications Terms and Conditions	means the terms of use of www.apoona.com.

3.1               Account registration

(a)                You may only register for an Account via the Portal if you are at least 18 years old, a duly registered member of the Dental Board of Australia (or equivalent in your country) and able to enter into legal relationship with us. We will provide the Services and/or Products as on the Form from time to time to you in accordance with the Agreement for the Term. Your access and use of the Portal, Services and/or Products is governed by the Agreement.

(b)                The Agreement is entered into by you as the Clinician or Lab nominated in the online registration Form. To access and use the Portal and order any Services and/or Products you must register for an Account.

(c)                If you apply to register an Account, you warrant that during your Account registration you have provided accurate and full information.

(d)                Account registration is subject to the eligibility criteria set out in clause 6 and a Clinician must be a duly registered member of the Dental Board of Australia (or equivalent in your country) or medical association. We reserve the right to accept or reject any person’s Account registration in our absolute discretion.

(e)                If you register for an Account you must ensure that you provide a valid email address at the time of registration. We will send an email with a link that requires you to verify that you are the owner or operator of the email address entered by you during registration. We may cancel your Account or reject registration for an Account if your email address is not so verified.

(f)                  If your contact details or other information you provided at the registration process subsequently change during the Term, you must promptly update your Account with your current information.

(g)                You must not provide your Account username or password to any person. You agree that you are responsible for the confidentiality and security of your username and password and any use of your Account (including unauthorised use and/or orders or purchases) and are responsible for all actions resulting from use of your Account (even if used by another person unlawfully).

(h)                You will notify us immediately if you suspect that another party has accessed your account or login credentials, or you suspect that another party is conducting activities on your Account.

3.2               Access to the Portal platform

For the purposes of ordering the Services and/or Products, on becoming an Account holder and subject to your compliance with the Agreement, we grant you non-exclusive and non-transferrable access and use the Portal in accordance with this Agreement during the Term for your internal business purposes and to order the Services and/or Products only. You must not use or access the Portal for any other purposes.

3.3               Services and Products – Implant Planning and Treatment Support

(a)                As an Account holder you may request dental/oral implant planning assessment services and treatment support from us by completing the Form on the Portal and selecting the services option you require. The Form must contain the required Clinician Data. The Clinician or Lab must upload any required Patient radiology and/or digital images (of high resolution and quality) and data to the Portal.

(b)                APOONA has the right to reject the Form for low quality DICOM or scan files and we will notify you if the Form is insufficient

(c)                Prior to submitting Clinician Data and uploading a Patient’s Personal Information, radiology and/or digital images to the Portal you must receive consent from the Patient to share their Personal Information (including radiology and digital images) with us via the Portal.

(d)                We will use any Patient Personal Information we receive in accordance with the APOONA Privacy Policy Here.

(e)                On receipt of the completed Form we will confirm the Services and/or Products to be provided and the applicable Fees of the Service Deliverables.

(f)                  By completing the Form, you agree to pay the applicable Fees in accordance with the relevant Form and clause 7.

(g)                We will perform the Services and/or manufacture the Products in accordance with the confirmed Form.

(h)                The Services will include us evaluating your Patient’s CBCT scan and 3D scan data only limited to:

(i)                  the feasibility of placing the implant at the selected implant location as nominated by the Clinician for the implant type the Clinician has determined;

(ii)                recommending the implant position and angulation for the implant type the Clinician has determined, as well as indicating possible areas of concern or areas of special anatomical considerations, if clearly visible on the provided CBCT and/or 3D data; and

(iii)               if necessary, providing alternative implant options at the selected location in the mouth.

(i)                 We do not provide any radiographic assessment, radiology reporting or diagnostic services. Our employees are not registered radiologists and/or dental radiographers. Any Patient images and data including any DICOM or from any CBCT or CT scan of a Patient that require radiology advice and/or review must be assessed by a registered radiologist. Our Services do not include the diagnosis of any pathologies present or otherwise.

3.4               Service Deliverables

(a)                For each of the Silver, Gold or Platinum Service option, at the completion of the Services, we will provide an illustrated assessment report (AReport).

(b)                If requested by the Clinician on the Form (i.e., by choice of the relevant Service option) and following the Clinician’s written approval as to the size, position and surgical protocol of the implant, as detailed in the AReport, we will provide to the Clinician:

(i)                  an STL File containing the complete digital implant planning (ASTL File), that will enable a Clinician with its in-house 3D printer or a dental laboratory to 3D print the Surgical Guide; and/or

(ii)                a 3D printed Surgical Guide with titanium sleeve inserts to support fully or partially guided surgery (AGuide).

(c)                If requested by the Lab on the Form for the Silver, Gold or Platinum Service option, the Lab must obtain prior written approval from a Clinician as to the size, position and surgical protocol of the implant, as detailed in the AReport and the Lab must;

(i)                  declare and acknowledge such written approval from a Clinician on the Form; and

(ii)                provide to us the Clinician’s written approval.

(d)                Following receipt of the Clinician’s written approval with Form from the Lab, we will provide to the Lab:

(i)                  an STL File containing the complete digital implant planning (ASTL File), that enables a Clinician with its in-house 3D printer or a dental laboratory to 3D print the Surgical Guide; and/or

(ii)                a 3D printed Surgical Guide with titanium sleeve inserts to support fully or partially guided surgery (AGuide).

(e)                An AGuide is designed and manufactured according to the particular implant manufacturer’s surgical protocol and is to be used with the implant manufacturer’s official and genuine (guided) surgical kit.

(f)                  An AGuide is manufactured from several component materials such as PMMA, acrylic and titanium that may cause an allergic reaction in a Patient, you must refer to our component guidelines and listing on our Form or Portal to determine if the dental and implant treatment is appropriate for the Patient.

(g)                We will deliver the AReport and/or the ASTL File to your Account Portal in accordance with the Service option and the delivery method in the Form.

(h)                You will receive a notification by email when the AReport and/or ASTL File are available on the Portal.

(i)                  If you choose the Platinum Service option to also receive the AGuide, it will be delivered by courier to you at your address nominated on the Form.

(j)                  You, or the Clinician in your Practice must review the AReport, ASTL File and/or AGuide and determine by your/their own clinical dental expertise if the implant position recommendation(s) are the appropriate dental implant treatment for your patient.

(k)                You as Clinician acknowledge and agree that all clinical treatment and diagnostic decisions are your responsibility. You as Lab acknowledge and agree that all clinical treatment and diagnostic decisions are your responsibility or that of your customer (that is a Clinician you refer to).

(l)                  Our Services and Products are limited by the quality of the data you provide to us to be considered by our system and, as the referring Clinician, part of your diagnostic and dental treatment process is to confirm the quality and accuracy of the Clinician Data sent to us.

(m)              As a Lab, it is your responsibility to confirm the quality and accuracy of the Clinician Data sent to us from you.

(n)                In any event, the Clinician maintains the professional responsibility to make decisions for the dental and implant treatment of the Patient, as well as for complying with all laws, regulations, and licensing requirements applicable to your delivery of dental healthcare services to Patients. The final determination for the implant position is the responsibility of the Clinician.

(o)                The Services and/or Products are based on the Clinician’s or Lab’s provision of the CT scan or CBCT scans, 3D scan data and Clinician Data including a Patient’s Personal Information on the Portal and therefore we are not responsible for the accuracy, validity, quality or suitability of the data contained in the Clinician Data, Patient Personal Information and the DICOM and the 3D scan data of a Patient. For those Services and/or Products that are dependent on any data provided by you to the extent permitted by law, we are not responsible and disclaim any liability for your reliance on and use of, the validity, availability, quality, suitability and fitness of the Services and/or Products based on any data provided by you, and we make no representations, warranties or conditions of any kind in this respect, whether implied, statutory or otherwise, including any implied warranties of merchantability, title, non-infringement or fitness for a particular purpose.

3.5               Services Option

(a)                We offer you the following three (3) levels of the Services, at your option:

 

Service option	Service Deliverables the Clinician will receive for each option
Silver Service	1.     AReport only
Gold Service	1.     AReport and 2.     ASTL File
Platinum Service	1.     AReport and 2.     ASTL File and 3.     AGuide

 

 

 

3.6               Vienna Convention does not apply

The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded. 

4.1               Clinician and Lab access facilities and security

(a)                Each Clinician and/or Lab is responsible for providing their own internal facilities including, if applicable, server, software, database licenses, modem and telecommunications facilities or services necessary for accessing the Portal, Services and/or Products. We accept no responsibility for any deficiency in the Clinician’s or Lab’s internal access facilities.

(b)                Each Clinician and Lab must keep confidential and secure the password and other security credentials provided by us. Each Clinician and Lab agree to take reasonable steps, including implementing reasonable security measures, to ensure that no unauthorised person gains access to the Portal and there is no unauthorised use of the Services and/or Products.

4.2               Acceptable Use

(a)                You agree to use the Services and/or Products, including access to the Portal, and your Account for lawful proposes and will comply with this clause 4. You further agree that you will not use the Portal to:

(i)                  post or transmit any material which violates or infringes in any way on the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful or racially or ethically or otherwise objectionable;

(ii)                impersonate a person or entity or falsely state their affiliation with a person or entity;

(iii)               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;

(iv)               advertise or perform any commercial or other form of solicitation that is in breach of the law or not authorised by us under this Agreement;

(v)                transmit or otherwise make available any material or content that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any software or hardware or telecommunications equipment;

(vi)               intentionally distribute viruses, worms, trojan horse, corrupted files, hoaxes or other items of a destructive or deceptive nature;

(vii)              alter, disable, interfere with or circumvent any aspect of the Portal;

(viii)            test or reverse engineer the Services in order to find limitations, vulnerabilities or evade filtering capabilities; or

(ix)               assist with the development of a competitive or replacement dental implant planning and treatment support portal and/or services.

(b)                Your failure to comply with clause 4.2(a) may result in the immediate suspension or termination or both of the Services and/or Products pursuant to this Agreement.

5.1               Clinician Data

(a)                We will deploy and maintain reasonable security systems and technologies intended to protect against unauthorised access, modification or disclosure of Clinician Data and against misuse, interference loss or corruption of Clinician Data.

(b)                It is your responsibility to have appropriate back-up processes in place to protect against unexpected data corruption or loss. We recommend you regularly export Clinician Data, any AReport, ASTLfile and associated data from the Portal to your own system to protect against any data loss caused by hardware or system failure.

(c)                If you delete Clinician Data, deliberately or accidentally, we may not be able to retrieve it and it may be permanently lost.

(d)                Subject to clause 14, we will hold Clinician Data, any AReport, any ASTLfile and associated data for 6 months from the date of uploading such information to the Portal. After 6 months, we will delete any associated DICOM and/or 3D scan data and only retain the Clinician Data required for the purposes of providing Services to you.

(e)                You will ensure that Clinician Data and any other information uploaded to the Portal is accurate and up to date. We require current DICOM and 3D scan data that is no more than one month old.

(f)                  You warrant that the Clinician Data does not infringe the Intellectual Property Rights, privacy or other rights of any third party.

(g)                You as a Lab, warrant that you have the authorisation and consent from your customer and/or the Patient to provide us the Clinician Data.

(h)                We acknowledge that Clinician Data will remain your property and any Intellectual Property Rights in Clinician Data remain vested in you or your customer. You grant us an irrevocable license to use and access the Clinician Data for the purpose of providing the Services during the Term.

(i)                  You agree that we may use your business name, logo and trademark for promotion and marketing purposes. You grant us an irrevocable license to use your business name, logo and trademark for promotion and marketing purposes, provided that we do not use such content in a way which would clearly detract from your good name and reputation.

5.2               Our use of Clinician Data

(a)                We do not disclose Clinician Data to third parties unless it is required to deliver the Services and/or Products and is in accordance with our Privacy Policy Here.

(b)                We may use the Clinician Data relating to Patients in an aggregated and de-identified form to assess, analyse and improve the Services and/or Products and otherwise in accordance with our Privacy Policy Here.

(c)                We may use the AReport, ASTL file and/or AGuide, developed by us, in a de-identified form for demonstration, education or training purposes.

6.1               Clinician and Lab qualification

(a)                You warrant that, as a Clinician or Lab, you are currently (and will remain for the Term) duly licensed with the recognised regulatory body, Dental Board of Australia (or equivalent in your country) or medical association and are entitled to practise dental healthcare services in the jurisdiction in which you are offering such dental healthcare services.

(b)                You agree to notify us of any changes to your qualification, certification, licenses, permits, association membership necessary for you to provide the relevant dental healthcare services to Patients.

(c)                If you are a Lab you agree to incorporate these Terms and Conditions into your agreement with your customer and ensure your customers adhere to the Terms and Conditions when you supply any of our Products to your customers.

6.2               Insurance

(a)                You as Clinician will ensure that you maintain all insurance policies suggested by your regulatory body and/or authority you are registered with/licensed by including, as a minimum but not limited to, professional indemnity and public liability insurance in relation to the services offered by a Clinician at all times to the level usually required as part of any dental association’s or regulatory body’s requirements.

(b)                You as Lab will ensure that you maintain all insurance policies at a minimum but not limited to, professional indemnity and public liability insurance in relation to the services offered by a Lab at all times.

7.1               Fees

(a)                On authorisation of your Account to access the Portal to order the Services and/or Products you agree to pay the relevant Fees as stated in the Form in return for the Services and/or Products, as specified in the Form or as separately agreed in writing between you and us.

(b)                You must pay all Fees at the time of submitting a case or order. If you do not make payment in full (without deduction or set off), in our discretion, we may suspend or cancel your Account and use of the Portal and withhold delivery of any outstanding Services and/or Products.

(c)                We may vary the Fees by giving you notice in writing.

(d)                Unless otherwise indicated, all Fees stated in Australian Dollars (AUD) and are exclusive of GST and other applicable taxes which must be paid by you.

7.2               The Fees are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Services and/or Products. Without limiting the foregoing, you will be liable for any new taxes, duties or charges imposed subsequent your registration for an Account.

 

The Term of this Agreement will start on the date of registration for an Account with us and will continue until terminated in accordance with clauses 9 or 17.

9.1               Termination by you

(a)                During the Term you may terminate the Agreement at any time by closing your Account. Termination of the Agreement must be performed by the Account holder.

(b)                We are not obliged to provide you with any refund or credit of or in relation to Fees paid prior to the date of termination under this clause in respect of Services and/or Products we have provided to you.

9.2               Termination by us

(a)                We may in our absolute discretion terminate the Agreement at any time by giving 30 days’ notice in writing to you. We are not obliged to provide a refund of any fees in respect of Services and/or Products we have provided to you.

9.3               Other rights to termination

(a)                We may, with prior written notice to you, immediately terminate this Agreement or suspend or withhold the Services and/or Products provided under this Agreement if;

(i)                  you commit a breach of a material term of this Agreement, and that breach is not remedied within 14 days of our notification of the breach;

(ii)                you suffer any form of Insolvency;

(iii)               you lose your relevant regulatory or other licence or association membership or authority to deliver dental healthcare services; and

(iv)               we reasonably believe that terminating your use of the Portal is necessary for security reasons or to preserve the proper continued operations of the Portal, Services and/or Products.

 

 

9.4               Consequences of termination

(a)                On termination of this Agreement all rights granted to you will cease immediately and you will immediate cease use of and access to the Portal, Services and/or Products.

(b)                We reserve the right to delete Clinician Data and any information associated with your use of the Portal, Services and/or Products within 30 days of termination of the Agreement.

(a)                All Intellectual Property Rights in the material comprising the Portal, Services and/or Products, including all our software, platforms and methodologies used in providing the Portal and incorporated into the Services and/or Products, remain vested in us or our licensors.

(b)                You agree not to copy, alter, modify reproduce, or distribute any part of the materials including in the Portal or comprising the Services and/or Products unless expressly permitted under this Agreement.

(c)                You must not use our logo, trademark or other distinctive brand features (unless expressly permitted under this Agreement and in material, specifically approved by us) without our prior written consent.

(a)                The Portal and the Services may include information and advertising from third parties and links to third party websites and Service Providers (Third Party Content). We accept no responsibility for Third Party Content. You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability of Third Party Content or as a result of your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available form third party websites or resources.

(b)                We do not endorse any of the goods or services that are promoted, visible accessible or transacted through the Portal or the Services.

 

 

12.1            Disclaimers

(a)                You acknowledge and agree that we are not a dental healthcare/implant service provider and cannot be held liable for the care of any Patient, which care will always, remain the sole responsibility of you or your customer (the Clinician to whom you refer to).

(b)                You agree that your access to and use of the Portal, Services and/or Products is at your own discretion and your own risk. The Portal, Services and/or Products are provided ‘as is’ and ‘as available’. To the extent permitted by law we are not, nor are any of our affiliates, employees, representatives or agents, making any representation or warranty about the Portal, Services and/or Products in respect of their accuracy, reliability, fitness for purpose or non-infringement.

(c)                You acknowledge that there are risks inherent in using the internet and electronic communications generally, which are out of our control and for which we are not responsible. We do not guarantee that the Portal, Services and/or Products provided will be free of delays, uninterrupted, error free or free of viruses or malware. We accept no responsibility or liability for any loss or damage you may incur, including any damages to software hardware, delivery failures system malfunction, or loss of Clinician Data arising from you use of or access to the Portal, Services and/or Products.

12.2            Limitation of Liability

(a)                Nothing in the Agreement excludes or limits any of our liability that may not be lawfully excluded or limited by applicable law.

(b)                To the maximum extent permitted by law, we exclude all direct and indirect liability that may arise as a result of your use of or access to the Portal, Services and/or Products arising under any liability, including negligence.

(c)                To the maximum extent permitted by law, we exclude all implied rights, remedies, guarantees, conditions and warranties of or in favour of you or a third party in respect of goods and services related to your use of the Portal, Services and/or Products and, in particular, if any term, condition or warranty is implied into this Agreement and cannot be excluded, then that warranty will be limited to;

(i)                  in the case of goods, any one or more of the replacement of goods or supply of the equivalent goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods; and

(ii)                in the case of service, the supplying of the services again (directly or indirectly) or the payment of the cost of having the services supplied again.

(d)                You warrant and represent that you have not relied on any terms, undertaking, inducement or representation made by, or on behalf of us, which has not been expressly stated in the Agreement.

(e)                We limit our aggregate liability under or in connection with this Agreement and the Portal, Services and Products to the Fees paid under this Agreement during the three (3) consecutive calendar months prior to the relevant claim being made.

(f)                  We are not liable for any Losses that you are liable for arising out of any loss suffered by third parties under or relating to the Portal, Services and/or Products, the purchase of Services or the use of the Service Deliverables and/or Products whether in contract, tort (including without limitation, negligence), in equity, under statute, under an indemnity or on any other basis, whether or not such loss of damage was foreseeable and even if advised of the possibility of the loss or damage.

13.1            You indemnify us and our affiliates, employees, agents, representatives and service providers against any claims, damages, loss or liabilities of any nature arising out of or in connection with your breach of this Agreement, your negligence or wilful misconduct, your access to and the use of the Services and/or Products, including from;

(a)                any content, information or data shared and uploaded by you on the Portal;

(b)                any non-compliance with clause 14 and any laws, regulations, including regarding the collection Personal Information (and sensitive information) and the sending of commercial electronic messages; and

(c)                your use of the Services and/or Products, unless it can be shown that, on the basis of the Clinician Data provided, we were grossly negligent in our provision of the Services or manufacture of the Products such that they do not match the parameters of the Clinician Data provided by you.

14.1            Any of the Patient’s Personal Information (including sensitive information) you provide to us will be treated in accordance with our Privacy Policy Here. You agree to us collecting, using and disclosing your Personal Information and the Personal Information of the Patient in accordance with the terms of our Privacy Policy.

14.2            You will ensure that each Patient has been notified of and consented to our collection, use, storage and handling of their Personal Information in accordance with our Privacy Policy Here.

14.3            We will act in accordance with our Privacy Policy Here when sending electronic messages.

14.4            You must comply with all applicable privacy, health records and information laws and regulations so far as they relate to your collection, use and disclosure of Personal Information (including sensitive information).

14.5            You warrant that you have made and will make all the necessary disclosures and notifications to and have obtained and will obtain any necessary consents from individuals (e.g. Patients) in relation to Personal Information which you collect, use and/or disclose to us.

14.6            You agree;

(a)                to notify us immediately in the event of a potential or actual data breach or compliant concerning a Patient’s Personal Information;

(b)                cooperate promptly and fully with all our reasonable requests to address any possible data breach or breach of our Privacy Policy Here; and

(c)                that for the purposes of the Privacy Act 1988 (Cth), we will decide for any data breach involving us whether a data breach is an eligible data breach and the method and form of the notification (if any) after consultation with you.

Each party must keep the other party’s Confidential Information (including terms of this Agreement) confidential and neither party will disclose or allow any written or electronically recorded Confidential Information to be copied other than for the purposes of this Agreement, as the other party expressly agrees or as required by law.

16.1            Any dispute arising between the parties in connection with this Agreement that cannot be settled by negotiation between the parties within 30 days may only be submitted (by either party) to arbitration at the Australian Centre for International Commercial Arbitration in Sydney in accordance with its ACICA Rules 2016.

16.2            Nothing in this clause will prevent a party from seeking urgent equitable relief before an appropriate court.

16.3            Despite the existence of a dispute, the parties must continue to perform all their respective obligations under the Agreement.

We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to a Force Majeure Event. If a delay or failure is caused or anticipated due to a Force Majeure Event, our obligations will be suspended until such time as the Force Majeure Event has ended. If a delay or failure by us to perform our obligations due to a Force Majeure Event exceeds 90 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

18.1            Change to the Services

We may update, add, make changes to or remove certain Services, Products, our internal processes, the Portal interface or features and functionalities of the Portal from time to time as we consider appropriate. To the extent practicable we will give you 30 days’ notice in writing (including by email) of any such changes that are material to your use of the Services.

18.2            Subcontractors

We may engage subcontractors to assist in the provision of the Portal, Services and/or Products.

18.3            Assignment

The benefit of this Agreement may not be assigned by you without our prior written consent.

 

 

18.4            Inconsistency

If there is an inconsistency between the provisions contained in two or more of the documents forming this Agreement, the following order of precedence prevails:

(i)     Form;

(ii)   these Terms and Conditions;

(iii)  the Website and Mobile Applications Terms and Conditions;

(iv)  any other document referenced or comprised in the Agreement; and

the document lower in the order of precedence will, where possible, be read down to resolve such inconsistency.

18.5            Entire agreement

This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, relating to the subject matter of this Agreement.

18.6            Variation

The provisions of this Agreement will not be varied, except by agreement in writing signed by both parties.

18.7            Waiver

No right under this Agreement will be deemed to be waived except by notice in writing signed by the party giving the waiver. A waiver by us will not prejudice our rights in respect of any subsequent breach of the Agreement by you. Any failure by us to enforce any clause of the Agreement or any forbearance, delay or indulgence granted by us to you will not be construed as a waiver of our rights under this Agreement.

18.8            Survival

Clauses 2, 7, 9, 12,13, 14,15,17,18.9, 18.12 will survive termination of this Agreement.

18.9            Notices

(a)                Notices under this Agreement may be delivered by hand, by mail or by email to the relevant party’s address for notices.

(b)                Notice will be deemed given:

(i)                  in the case of hand delivery, on written acknowledgement by an officer or other duly authorised employee, agent or representative of the receiving party;

(ii)                in the case of posting, five days after despatch by registered post; and

(iii)               in the case of email, at the time of receipt of the email, specifically when that email enters the receiving party’s information systems.

18.10        Relationship

Nothing in this Agreement creates a relationship of partnership, joint venture, agency or employment between the parties.

18.11        Counterparts

This Agreement may be executed in counterparts by the parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and same agreement, provided that this Agreement will have no force or effect until the counterparts are exchanged between the parties.

18.12        Governing Law

This Agreement is governed by and construed in accordance with the laws of the state of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.