Healthsite General Conditions
The following conditions apply to the Agreement headed Healthsite License Agreement. By signing the Healthsite License Agreement, the Licensee named in that agreement agrees to be bound by these General Conditions.
- Definitions and Interpretation
Unless inconsistent with the context, the following definitions apply to the Healthsite License Agreement including these General Conditions:-
“Act” means the Copyright Act (Cwlth) 1968 and includes any modification or re enactment of the Act.
“Agreement” means this license agreement.
“AUS” means the lawful currency of Australia.
“Business Day” means any day except a conditions in the Healthsite License Agreement.
“Business Hours” means between 9.00am and 5.00pm on a Business Day.
“Clinic” means an individually addressed medical establishment under the Licensee’s management
“Commencement date” means the date that Healthsite installs the requested Healthsite Software onto the Licensee’s server.
“Commissioning Works” means the following works (covered by the installation fee):-
(a) creating the relevant web application, and configure it to communicate with the server software;
(b) creating the means to communicate with the PMS database;
(c) configuring settings on the Healthsite server;
(d) sending installation instructions to the licensee IT support or designated personnel for installation completion on the licensee’s server;
(e) providing limited telephone support during the installation process if needed limited to a maximum 1 hour (any additional installation support will be charged at the rate of $75.00 per hour plus GST to provide such services).
“Confidential Information” means (whether in written, electronic, oral or any other form):
- the terms of the Healthsite License Agreement; and
- all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with Healthsite or the Healthsite Software or in support of Healthsite business which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the Licensee under or in connection with the Healthsite License Agreement, whether disclosed before or after the Healthsite License Agreement is signed.
- the text on the Healthsite Software and iFrame;
- the graphics on the Healthsite Software and iFrame; and
- the text and graphics within any document downloaded from the Healthsite Software and iFrame.
“Force Majeure” means anything outside the reasonable control of a party and includes fire, storm, flood, earthquake, explosion, act of public enemy, act of terrorism or sabotage, war, rebellion, insurrection, act of God, epidemic, quarantine restriction, labour dispute, transportation embargo or failure or delay in transportation but does not include a shortage of funds.
“Healthsite” means Health Media Group Pty Ltd trading as Healthsite ABN: 96136980544.
“the Healthsite License Agreement” means the Healthsite License Agreement executed by the Licensee together with these General Conditions.
“Healthsite Software” means the software (as updated from time to time) referred to in the Schedule under the heading “Product Range” which has been ticked.
“iFrame” refers to the format whereby the appointment page is embedded into the website.
“Implementation Fee” means the fee payable by the Licensee to Healthsite for the Commissioning Works set out in Item 1 of the Schedule.
“Insolvency Event”, in relation to a party, means any of the following events:
- the party ceases to (or is unable to) pay its creditors (or any of them) in the ordinary course of business, or announces its intention to do so;
- a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party or any of its assets;
- such party enters into, or resolves to enter into a scheme or arrangement, compromise or composition with any class of creditors;
- a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party;
- anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or
- a party is unable to pay its debts as and when they fall due.
“Intellectual Property” means all business names, domain names, copyright, circuit layouts, patents, registered and unregistered trademarks, registered designs, trade secrets and know-how and all other intellectual property rights resulting from intellectual activity.
“Licensee” means the licensee named as the Licensee in the Healthsite License Agreement.
“License Fee” means the monthly license fee(s) payable to Healthsite for use of Healthsite Software system by the Licensee set out in Item 2 of the Schedule.
“Modify” means to add to, remove, modify and otherwise change (including features and functionality).
“Registered User” means any of the Licensee’s officers, employees or contractors who is issued log in credentials comprising a username and password by Healthsite.
“Personal Information” means:
(a) information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
(b) information or a document that relates to the affairs or personal particulars of another person (such as a company or a business), which is received or learnt by Healthsite from any source as a consequence of or in the performance of its rights and obligations under the Healthsite License Agreement.
“Privacy Act” means the Privacy Act 1988 (Cth), as amended from time to time.
“Privacy Complaint” means any complaint made by an individual to Healthsite or to a Privacy Regulator in relation to the handling of their Personal Information.
“Privacy Laws” means the Privacy Act, the Spam Act 2003 (Cth) and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
“Privacy Regulator” means the Office of the Australian Information Commissioner, the Australian Communications and Media Authority and any government or statutory body having regulatory authority over the handling of Personal Information by the Licensee.
“Rights” means all right, title and interest including but not limited to copyright.
“Schedule” means the schedule to the Healthsite License Agreement.
“Term” means the period of the Healthsite License Agreement under clause 2 of the Healthsite License Agreement.
The following rules apply unless the context requires otherwise:
- the singular includes the plural and vice versa;
- words importing persons include corporations, companies, associations and institutions;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to a clause or schedule is a reference to a clause of or a schedule to the Healthsite License Agreement;
- headings are for convenience only and do not affect interpretation;
- a reference to a party to the Healthsite License Agreement or another agreement or document includes the party’s successors,
permitted substitutes and assigns and where applicable, the parties executors and legal personal representatives;
- a reference to an obligation of two or more parties binds all of them jointly and each of them severally;
- definitions contained in the Act apply to the Healthsite License Agreement unless the contrary intention is expressed; and
- no rule of construction applies to the disadvantage of a party merely because that party was responsible for the preparation of the Healthsite License Agreement or any part of it; and
- “including” is not a word of limitation.
Conditions Of License
2.1 Except as expressly permitted by the Healthsite License Agreement, the Licensee and its employees, officers, contractors and Registered Users may not download, copy, reproduce, transmit, display, distribute, commercially exploit, access or use Healthsite Software.
- The Licensee is responsible for the supervision, management and control of Registered Users’ use of Healthsite Software and will:
- use commercially reasonable efforts to protect Healthsite Software from unauthorized access, reproduction, disclosure or use; and
- ensure that its employees, officers, contractors or Registered Users do not upload any content onto the Healthsite Software or iFrame that may breach the Healthsite License Agreement or infringe the Act or any other laws.
- In the event the Licensee becomes aware of any unauthorized use of or access to Healthsite Software and/or any breach or infringement of the Act or any other laws, the Licensee will immediately notify Healthsite in writing and fully co-operate, at the Licensee’s expense, to prevent such unauthorized use or disclosure or to take appropriate action in relation to such breach or infringement of the Act or other laws.
2.3 Healthsite reserves the right in its sole discretion to:
- Modify Healthsite Software without notice;
- suspend access to the Healthsite Software or iFrame for the purposes of maintenance, repair or upgrade or any other reasonable cause; and
- immediately, without notice, suspend or terminate the Licensee’s access to the Healthsite Software or iFrame if the Licensee breaches the Healthsite License Agreement or for any other reasonable cause.
2.4 Healthsite will provide access to the Healthsite Software to the Licensee via the World Wide Web. The Licensee acknowledges:
- users including Registered Users accessing the Licensee’s appointments link must have a supported browser and internet connectivity with team viewer and python software installed to access Healthsite Software and that the cost of such internet connectivity is at the Licensee or user’s expense; and
- Healthsite is not responsible if the Healthsite Software or iFrame is not available, including where this is due to changes to Healthsite Software or changes to the software and setup of the individual Licensee’s servers, carried out by the Licensee or its Registered Users or any third party.
2.5 The Licensee must deactivate user accounts for staff or contractors that no longer work for the Licensee or are no longer involved with the Licensee.
2.6 The Licensee hereby acknowledges that it understands that the Healthsite Software is evolving and all upgrades are mandatory and can be applied without notice.
2.7 Healthsite and its officers, employees and authorised agents have the right to access the Software and the Licensee’s data (including patient clinical information) at any time without authorisation from or notification to the Licensee. Healthsite must use its reasonable endeavours to ensure that all of the Licensee’s data is not disclosed to any third party.
Payments and GST
3.1 All payments to Healthsite are non-refundable. No refunds or credits shall be payable by Healthsite for partial years of service, or upon cancellation and/or termination of the Healthsite License Agreement for any reason
3.2 Terms used in this clause have the same meaning as given to those terms in A New Tax System (Goods and Services Tax) Act 1999. Unless GST is expressly included, any consideration to be paid or provided under the Healthsite License Agreement for any supply made under or in connection with the Healthsite License Agreement does not include GST. To the extent that any supply made under or in connection with the Healthsite License Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply. That amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
3.3 An initial payment of 50% of the full web design cost is required prior to any designs being carried out. The balance is due once final approval is received for the website and prior to going live. Once initial draft site is approved, no material changes to the site can be made without incurring additional charges.
3.4 All monthly payments are payable monthly in arrears within 7 days of the date of each monthly invoice to be issued by Healthsite.
4.1 Healthsite makes no representations or warranties to the Licensee as to the availability of Healthsite Software except that Healthsite will not intentionally do or omit to do anything which adversely affects the availability of Healthsite Software to the Licensee compared with the availability provided to other clients, without reasonable prior notice to the Licensee.
4.2 If the Healthsite appointment system becomes unavailable or offline, all notifications need to be directed to the dedicated Healthsite helpdesk. All communication is required to be in the form of either phone support or an email initially outlining any issues being experienced. All emails are to be addressed to firstname.lastname@example.org.
4.3 The Licensing fees entitle the Licensee to the following services:-
- Provision of the Healthsite Software;
- Monitor error logs;
- Resolve connectivity issues; and
- Healthsite Software updates.
The Healthsite helpdesk is only for the above services. The Licensee may from time to time request Healthsite to provide services in addition to the above services. Heathsite may, in its discretion, agree to provide such services. If such services are provided, Healthsite will charge the Licensee at the rate of $75.00 per hour plus GST to provide such services. Healthsite shall be entitled to increase this hourly rate by providing the Licensee with no less than 14 days notice of its intention to do so.
4,4 The Licensee is liable for all costs incurred by Healthsite, including all time spent by its employees and contractors at Healthsite’s then standard hourly rate, if the Healthsite Software is rendered non-functional due to any act, omission or neglect by the Licensee or any of its employees or contractors (by way of examples only: if the Licensee has a new server and requires the Healthsite Software to be installed, or if the Licensee changes the manner in which it uses its appointment types/ appointment book which causes the system to not display appointments correctly or if the Licensee’s IT company stops its service rendering the Healthsite Software inoperable).
5.1 The Licensee agrees:
- that Healthsite Software contains Intellectual Property solely owned by or exclusively licensed by Healthsite;
- the Healthsite Software is protected by the laws of the Commonwealth of Australia and international treaties, including, but not limited to, copyright in the Content and services provided from the Healthsite Software and iFrame;
- that except as provided in the Healthsite License Agreement, the Licensee and its Registered Users will not:
- reproduce the Healthsite Software, the iFrame or the Content in any material form;
- distribute the Healthsite Software, the iFrame or the Content in any material form;
iii. re-transmit the Healthsite Software, the iFrame or the Content by any medium of communication;
- upload or repost the Healthsite Software, the iFrame or the Content to any other site or location on the internet or other on-line service; or
- ‘frame’ the Healthsite Software, the iFrame or the Content with other material on any other site or location, or on-line service.
- not to:
- decompile, reverse engineer, disassemble, or create derivative works from the Healthsite Software, the iFrame or the Content except as expressly authorized by the Healthsite License Agreement or Part III Division 4A Copyright Act 1968 (Cwlth);
- use any network monitoring or discovery software to derive the Healthsite Software, the iFrame or the Content, to monitor or copy it, cache its content or to extract usage information; nor
iii. intentionally or recklessly harm or cause loss to any person by use of the Healthsite Software, the iFrame or the Content.
Liability of Healthsite
6.1 Subject to clause 6.2 any condition or warranty which would otherwise be implied in the Healthsite License Agreement is hereby excluded.
6.2 Where legislation implies in the Healthsite License Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty is deemed to be included in the Healthsite License Agreement.
6.3 The liability of Healthsite for breach of any implied condition or warranty referred to in clause 6.2 is limited, at Healthsite’s option, to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
6.4 Except in relation to liability for personal injury, Healthsite is under no liability to the Licensee in respect of any loss or damage (including but not limited to any indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied under the Healthsite License Agreement or in respect of a failure or omission on the part of Healthsite to comply with its obligations under the Healthsite License Agreement. Without limiting the generality of the foregoing, in no event will Healthsite be liable to the Licensee or to any third party for:
(a) malfunctions or failures caused directly or indirectly by:
(i) any third party;
(ii) actions of Healthsite that were expressly or impliedly authorised by Client, or by Client’s employees or agents;
(iii) accident, misuse or abuse by anyone other than Healthsite;
(iv) alteration or modification of the Healthsite Software by anyone other than Healthsite;
(v) products not licensed or supplied by Healthsite that are attached to or used with the Healthsite Software;
(vi) the Licensee’s failure to provide a proper operating and working environment for the Healthsite Software;
(vii) power surge or failure;
(ix) any circumstances outside Healthsite’s control; or
(x) any other condition not arising under normal operating conditions;
(b) any loss or damage of any nature arising or caused directly or indirectly by any breach of the Licensee’s obligations or responsibilities set out in the Healthsite License Agreement;
(c) any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
(d) the Licensee’s liability to any third party;
(e) any incidental, consequential, special, exemplary or punitive damages of any nature;
(f) the use or the inability to use the Healthsite Software;
(g) the unauthorized access to or alteration of the Licensee’s transmissions or data;
(h) any other matter relating to the Healthsite Software.
howsoever arising or caused, including any expiration or termination of the Healthsite License Agreement, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if Healthsite has been advised of the possibility of such loss or damage.
6.5 Subject to clause 6.6 the Licensee warrants that it has not relied on any representation made by Healthsite which has not been expressly stated in the Healthsite License Agreement. Without limiting the generality of the foregoing, Healthsite has not made any promises to the Licensee as to the benefits to be derived from the Healthsite Software and Healthsite does not warrant that the Healthsite Software will:-
(a) meet the Licensee’s specific requirements.
(b) be bug free.
(c) be error free.
(d) be uninterrupted, secure, or error-free.
(e) meet the Licensee’s expectations.
6.6 The Licensee acknowledges that to the extent Healthsite has made any representation which is not stated expressly in the Healthsite License Agreement, the Licensee has been provided with an opportunity to independently verify the accuracy of that representation.
6.7 The Licensee indemnifies and holds harmless Healthsite and its officers, employees and agents (“those indemnified”) from and against any loss (including but not limited to reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
- a breach by the Licensee of its obligations under the Healthsite License Agreement; or
- any willful, unlawful or negligent act or omission of the Licensee and/or its Registered Users.
7.1 Nothing in the Healthsite License Agreement constitutes any party a partner, agent, joint venturer, employee or servant of another party.
7.2 Neither party has power or authority (express or implied) to bind the other party to act as partner, agent, joint venturer, employee or servant of the other party.
- During the Term and at any time thereafter, the Licensee will not, except in the proper course of its duties under the Healthsite License Agreement or as required by law or by Healthsite, use or disclose to any person any Confidential Information and will use its best endeavours to prevent the use or disclosure of any such information by third parties.
- The obligations under this clause do not extend to Confidential Information which is:
- known to the Licensee prior to its disclosure by Healthsite;
- lawfully in the public domain; or
iii. required to be disclosed by law.
8.2 To the extent permitted by law, this clause 8 survives for a period of 10 years after the expiry of the Healthsite License Agreement or such other period as may be necessary to comply with law.
9.1 The Healthsite License Agreement may be terminated:
- immediately by either party by written notice to the other party if the other party suffers an Insolvency Event; or
- immediately by either party by written notice to the other party if the other party is in default in performing or observing any terms of the Healthsite License Agreement and that default continues for a period of seven (7) days after written notice has been given to the party in default to remedy the default.
The Healthsite License Agreement may also be terminated by Healthsite by giving to the Licensee no less than 30 days written notice of its intention to do so.
9.2 If the Healthsite License Agreement is terminated under clause 9.1:
- the license referred to in clause 3.1 of the Healthsite Agreement immediately ceases and the Licensee shall have no further rights under the Healthsite License Agreement;
- the Licensee must cease to use the Healthsite Software and return to Healthsite all materials associated with the Healthsite Software;
- the Licensee must purge all copies of the Healthsite Software or any portion of it from any computer storage device or medium on which the Licensee has placed the Healthsite Software
- the Licensee must pay within seven (7) days of the date of termination all monies due by it to Healthsite;
- such termination does not abrogate, release or extinguish any debts, obligations or liability of the parties which may have accrued;
- the provisions of Clauses 5, 6 and 8 shall survive expiration or termination of the Healthsite License Agreement.
- A notice or other communication to or by a party to the Healthsite License Agreement:
- must be in writing addressed as shown below:
- if to: Healthsite
5/107 Carpenter Street, Brighton VIC 3186
Attention: Lachlan McPherson
- is given or made:
- if delivered by hand, at the time of delivery;
- in the case of delivery by post, two Business Days after the date of posting; and
iii. in the case of an email, on receipt by the sender of confirmation email receipt, but if the result is that a notice would be taken to be given or made on a day that is not a Business Day or is later than 4:00 p.m. local time it will be taken to have been duly given or made at the commencement of business on the next Business Day.
The non-exercise or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
11.2 Entire Agreement
The Healthsite License Agreement is the entire agreement of the parties on the subject matter. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by the Healthsite License Agreement.
If any provision of the Healthsite License Agreement is unlawful, invalid or unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
The benefit of the Healthsite License Agreement will not be dealt with by the Licensee (whether by assignment, sub-licensing or otherwise) without Healthsite’s prior written consent. Without limiting the generality of the foregoing, the Licensee agrees to use the Healthsite Software for its internal business purposes only, and the Licensee shall have no right to sub-license, resell, lease, rent, distribute, operate as an outsourcer or transfer the Healthsite Software or any of its rights under the Healthsite License Agreement.
11.5 Further Assistance
Each party must do, sign, execute and deliver and ensure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably as required of it or them by notice from the other party to effectively carry out and give full effect to the Healthsite License Agreement and the rights and obligations of the parties under it.
11.6 Governing law
The Healthsite License Agreement is governed by the law in force in Victoria and the parties submit to the jurisdiction of the courts of Victoria.
The provisions of the Healthsite License Agreement will not be varied except by agreement in writing signed by both parties.
11.8 Costs and Expenses
Each party must pay its own costs and expenses in respect of the negotiations, preparation and execution of the Healthsite License Agreement.
11.9 Force Majeure
Neither party will be liable to the other party for any delay or failure to perform its obligations under the Healthsite License Agreement, apart from that party’s obligation to pay fees and any other monies under the Healthsite License Agreement, if that delay or failure is due to an event of Force Majeure.
12.1 Healthsite must at all times comply with all Privacy Laws in relation to Personal Information, whether or not Healthsite is an organisation bound by the Privacy Act and if Healthsite is a small business operator under the Privacy Act, choose to be treated as an organisation bound by the Privacy Act under section 6EA of that Act.
12.2 Healthsite must:
(a) not use or disclose any Personal Information it obtains for the purpose of performing its obligations under the Healthsite License Agreement. The taking of personal information is essential for the purpose of performing its obligations under the License Agreement;
(b) ensure that access to the Personal Information is given only to those of Healthsite’s personnel who reasonably require access for the purpose of Healthsite carrying out its obligations under the agreement;
(c) immediately notify the Licensee if Healthsite becomes aware of an actual or potential breach of the Privacy Laws by itself or any of its personnel or receives a Privacy Complaint;
(d) promptly provide the Licensee with any information or assistance reasonably requested by the Licensee for the purposes of investigating an actual or potential breach of Privacy Laws or a Privacy Complaint;
(e) comply with all directions given by the Licensee to rectify or minimise any breach of Privacy Laws or any Privacy Complaint;
(f) cooperate, and provide the Licensee with assistance in cooperating, with any investigations or recommendations made by a Privacy Regulator in connection with the handling of Personal Information in the course of providing the Healthsite Software under the Healthsite License Agreement; and
(g) provide the Licensee with any assistance requested by the Licensee for the purposes of the Licensee complying with any Privacy Laws, including without limitation responding to a request by any individual for access to their Personal Information.