VETCHECK PTY LTD ACN 631 018 427 (Medechat/ we/ us) provides a software platform (Platform) for patients which includes pet owners (Patients) to make appointments with veterinary practitioners and health care practitioners (both referred to as Practitioners) who belong to a practitioner practice group which has been, or a Practitioner practising as an individual who has been, licensed by Medechat to use the Platform (Practice Group). Practitioners may use the Platform to conduct video consultations with Patients to provide veterinary or human health care (both referred to as Health Care) and to facilitate payment for the consultation by the Patient through the Platform.
Practice Groups and Patients may also purchase goods and services which Medechat determines to offer through the Platform from time to time (Products). In these terms and conditions, "you" or “User” means the user of the Platform, being either the individual Practitioner or their relevant Practice Group, as applicable.
Medechat will permit you to use the Platform and the Services (as defined in clause 3.1), together comprising the software, information and intellectual property which are owned or licensed by Medechat, in your capacity as a Practitioner or Practice Group, and purchase Products through the Platform, in accordance with these terms and conditions (this Agreement). This Agreement forms a binding legal agreement between you and Medechat. As a user of the Platform, you will at all times be bound by, and must abide by, this Agreement.
If you are using the Platform on behalf of a Practice Group or Practitioner, then you agree that by using the Platform, you will be bound personally by this Agreement, and that you will bind the Practice Group or Practitioner (as applicable) to this Agreement as their agent (and you warrant that you have the capacity to agree to do so on behalf of the Practice Group or Practitioner, as applicable).
Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by signing a document agreeing to be bound by this Agreement, by checking the "I agree to the Terms and Conditions" checkbox and/or clicking the "Sign Up" button on your computer screen to electronically indicate your acceptance of this Agreement, or by proceeding with the purchase of a Product or any use of the Services.
1.1 In consideration for the payment of any licence or subscription fees specified by Medechat (if any), Medechat grants to the Practice Group a non-exclusive, non-transferable, revocable licence (Licence) to: (a) use the Platform; and (b) to allow the Practice Group to permit its Practitioners and employees (Related Parties) to use the Platform (as Users) subject to the terms of this Agreement within the period of the Licence agreed between the Practice Group and the User (Subscription Period).
1.2 Notwithstanding clause 1.1, Medechat may refuse to grant a Licence to any person, for any reason whatsoever in its sole discretion.
1.3 A Practice Group may only sublicense or authorise its Related Parties to use the Platform on the condition that they also agree to be personally bound by this Agreement (and will be deemed “Users”), and subject to any limitation on the number of sublicenses (and to payment of any applicable fees) as specified by Medechat from time to time. A User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of Medechat. The Practice Group and the Related Party will be jointly and severally liable for any breach by the Related Party of this Agreement.
1.4 The Subscription Period may at Medechat’s discretion be:
(a) limited to a specific period of time, which may or may not be capable of renewal (Subscription Licence); or
(b) limited to an evaluation period, and/or limited in functionality during that period, which is not capable of being renewed on the same terms (Evaluation Licence).
Until further notice, the minimum Subscription Period is twelve (12) months. If you terminate this Agreement in accordance with clause 10.6, clause 10.6(b) will apply.
1.5 Unless otherwise specified by Medechat, or agreed between the parties, the Licence granted will by default be an Evaluation Licence. The Evaluation Licence may be converted to a Subscription Licence, as further described in clause 2.
1.6 If access to the Platform is provided on a Subscription Licence basis, the Licence will continue for such time as you continue to pay all applicable licence or subscription fees to Medechat (or until the set period for which fees have been paid expires), unless terminated earlier pursuant to clause 10. If access to the Platform is provided on an Evaluation Licence basis, clause 2 will apply.
1.7 Medechat may restrict the functionality of the Platform, or your access to parts of the Platform based on the subscription level, licence type, and fees payable under any Subscription Licence.
1.8 You must pay any licence or subscription fees in the amount and manner agreed between the parties in respect of the Licence. You must provide Medechat, where applicable, with all necessary information to enable Medechat to take such payment, and ensure that such information is current and correct at all times.
1.9 Medechat may change the fees payable in respect of your use of the Platform at any time on notice to the Practice Group, and those fees will apply to any subsequent Subscription Period (for Subscription Licences upon their renewal). If the Practice Group does not accept the change in fees, that Practice Group and its Related Parties must cease using the Platform before those fees become effective.
2.1 If access to the Platform is provided on an Evaluation Licence basis, this Licence commences on the date that the Evaluation Licence is granted (or such other date as agreed between the parties). The Evaluation Licence will either expire at the end of the evaluation period as specified by Medechat, or if no such period is specified, then expire upon Medechat disabling the Platform’s functionality or your access to the Platform (Evaluation Term).
2.2 Medechat may at its discretion, limit the functionality of the Platform and/or restrict access to certain functionality of the Platform during the Evaluation Term.
2.3 You may purchase a Subscription Licence for the Platform and unlock its full functionality at any time by contacting Medechat. Upon expiry of the Evaluation Term, Medechat may offer you the option to purchase a Subscription Licence of the Platform, subject to payment of all applicable fees specified by Medechat.
2.4 A Licence granted on an Evaluation Licence Basis terminates automatically without further notice from Medechat upon the expiration of the Evaluation Term, unless you elect to purchase a Subscription Licence of the Platform pursuant to clause 2.3. Upon expiry or termination of the Evaluation Licence you must, without limitation, comply with your obligations under clause 10.7.
3.1 Subject to the terms and conditions of this Agreement, Medechat will provide you with the following goods and services (Services):
(a) a facility to allow Patients to make an appointment online with a Practitioner (Booking Functionality);
(b) a facility for Practitioners to provide real time live consultations via audio-video conference to Patients who are existing patients of the Practice Group (Video Consultation Functionality);
(c) a facility for Licensed Practice Groups to receive payments from Patients (Payment Functionality); and
(d) the ability to purchase Products through the Platform as they are offered from time to time by Medechat.
3.2 Subject to the terms and conditions of this Agreement, the provision of the Services and the Products which you purchase constitute Medechat’s only obligation to you.
3.3 You agree that Medechat may modify the Services at any time, and discontinue the Services (or part thereof) at any time. Medechat may also restrict your use of some or all Services. If you have pre-paid for any Services which are modified or discontinued then you should contact Medechat to discuss whether you are entitled to a partial refund.
3.4 You acknowledge and agree that:
(a) video consultations may not be suitable for the Health Care Services which the User or Patient requires;
(b) it is possible that the Platform and Services, including the conducting of video consultations, could be affected by hacking or other security breaches and you accept that risk;
(c) Medechat does not guarantee that the Platform and Services will always be accurate, reliable, or error-free; and
(d) all intellectual property rights, including any rights in copyright, moral rights, inventions (including patents), trademarks, designs, circuit layouts (whether or not registered or registrable), which subsist in the Platform, including any data, material, or information created by or on behalf Medechat and displayed or made available via the Platform (Medechat Intellectual Property Rights) are the exclusive property of Medechat.
3.5 Other than as expressly provided in this Agreement, Medechat does not accept any responsibility, and disclaims all and any liability for, any dispute between a User and a Patient in connection with the Platform or any related supply of services.
4.1 Medechat may require you to create an online account with Medechat (Account) in order to use some or all of the Services. Medechat may restrict the usage of the Services (or part thereof) for persons who do not have an Account. Medechat may, from time to time, amend or place restrictions on the requirements needed to create an Account.
4.2 If you create an Account with Medechat then you agree:
(a) if requested by Medechat, to use your email address as your username;
(b) that the Account will be created using Medechat’s online sign up process, or any other method specified by Medechat from time to time;
(c) to keep confidential and secure any password used to access the Account;
(d) that you warrant that all information provided by you to Medechat in the setup of the Account is true and correct in every detail; and
(e) that you will only use the Account for the purposes of using the Services and/or purchasing Products, and for no other purpose.
4.3 You acknowledge that Medechat may offer different types of functionality to different Users in your Practice Group depending on the type of Account they have set up (such as for example whether they are an administrator).
5.1 Steps to be able to accept appointment bookings
Prior to being able to offer Patients the ability to make appointment bookings through the Platform, you must:
(a) register with Medechat;
(b) set up an account with Stripe or other payment processing provider;
(c) have your Patients and Practitioners set up Accounts with Medechat; and
(d) ensure your Patients have provided their credit card details.
5.2 Who can conduct Video Consultations
Only Practitioners belonging to Practice Groups who hold a valid Licence may conduct video consultations using the Platform.
You will be responsible for performing your own verification of your Patients and collecting their personal information which is relevant to you providing your own goods and services.
5.4 Steps to be taken prior to conducting the Video Consultation
Prior to conducting the Video Consultation you must:
(a) verify that the Video Consultation Functionality functions appropriately from your location (noting that such functionality is subject to the telecommunication speeds provided by your phone or internet provider); and
(b) ensure that you have the necessary equipment (which may include internet access, microphones, cameras, smart phones or tablets) to provide the video consultation.
5.5 Recording consultations
(a) You must advise your Patients that the consultation will be recorded using the Video Consultation Functionality provided by Medechat.
(b) Recordings of consultations (both video and audio) will be stored with an external cloud-based storage provider in standard definition and will be accessible within the Platform for download or by contacting Medechat for a period of 6 months after the date of consultation. After this time, the recordings will be automatically deleted from the Platform.
6.1 Steps to activate online payments for video consultations through the Platform
Prior to being able to accept online payments for video consultations through the Platform, you must:
(a) set up an account with Stripe or such other provider as nominated by Medechat from time to time (Payment Processing Provider) and comply with the terms and conditions of the Payment Processing Provider including paying such fees and charges imposed by the Payment Processing Provider; and
(b) ensure each Patient has valid credit card / debit card credentials.
6.2 When will payments be transferred to you
(a) As part of the Payment Functionality, once a video consultation is completed, the Patient will be charged by the Payment Processing Provider. Before the Payment Processing Provider transfers the Patient’s payment to you, the
Payment Processing Provider will deduct:
(i) firstly, its merchant fee calculated on the basis of the full amount paid by the Patient; and
(ii) secondly, any commission or other Fees charged by Medechat on a per consultation basis.
These fees will be automatically charged and deducted at the end of a consultation and cannot be refunded.
(b) The Patient payment will be transferred to your bank account within the timeframes of the Payment Processing Provider.
(c) Where Medechat itself provides the merchant facility, Medechat may receive payments on your behalf. In this case:
(i) payments will be held in a pooled account with payments received by Medechat on behalf of other Practice Groups;
(ii) Medechat will disburse funds that it receives on your behalf each fortnight, within 7 days following the end of the relevant fortnight; and
(d) Medechat may deduct from the amounts it is required to distribute to you, any Fees or other amounts you owe Medechat under this Agreement or on any other account whatsoever. If a Patient is entitled to a refund, this must be dealt with and processed by the Practice Group not by Medechat.
You agree that Medechat’s sole role in the facilitation of video Health Care consultations, from making the appointment, hosting the video consultation, to payment of the consultation, is to provide a technology platform for the purposes of providing you with those Services. Medechat makes no warranty or representation that the Platform, its functionality, any Services, or any Products, comply with the legal requirements for providing Health Care consultations in the particular jurisdiction in which the video consultation is being conducted. You are responsible for meeting all legal requirements in relation to the provision of Health Care consultations for which the Platform is used.
8.1 Medechat may determine from time to time, to supply Products through the Platform for purchase by Practitioners, Practice Groups and Patients.
8.2 If Products are supplied through the Platform, then Medechat may impose additional terms and conditions which apply to the purchase and supply of the relevant Products, by setting out the additional terms and conditions in an addendum to this Agreement (Product Addendum). Any Product Addendum will form part of this Agreement and, unless otherwise stated, will override any inconsistent term in this document, to the extent of the inconsistency only.
8.3 By ordering and purchasing any Product from the Platform, you agree:
(a) that you are bound by and will comply with the Product Addendum applicable to the Product; and
(b) to pay the applicable Fee for such Product.
9.1 Fees which may be imposed
(a) The fees and charges which Medechat will charge you for providing the Services and each Product will be (Fees):
(i) as specified on the Platform, on Medechat’s website or otherwise as published by Medechat from time to time;
(ii) as specified in an applicable Product Addendum; or
(iii) as separately agreed in writing between you and Medechat, or as otherwise agreed through functionality provided in the Platform.
(b) Such Fees may include fees and charges for:
(i) access to the Platform;
(ii) providing Video Consultation Functionality and Payment Functionality;
(iii) reimbursement of third party costs (such as payment processor fees); and
(iv) the provision of specific functionality or additional functionality over and above the Platform’s core functionality.
9.2 Other Costs
You may be charged additional costs where modifications (including the addition or removal of any widget or code) are required to your website, social media pages, operating system or other applications to enable you to interact, integrate or use the Platform.
9.3 When and how Fees and Costs must be paid
(a) The Fees and Costs must be paid at the earlier of:
(i) the time specified by the Platform when the applicable functionality or a Service is requested or provided;
(ii) on a periodic basis for Services or Products provided on a subscription basis, as separately specified by Medechat;
(iii) upon the commencement or renewal of a Subscription Period; or
(iv) within seven days of the date of any invoice of Medechat.
(b) Fees and Costs must be paid using the method of payment specified by Medechat, which may, without limitation include credit card, PayPal, bank transfer or direct debit.
(c) Medechat may also deduct any Fees and Costs you owe Medechat from any amounts payable by Medechat to you under clause 6.2.
(a) In this clause 9.4:
(i) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(ii) terms used in this clause 9.4 shall have the same meaning as in the GST Act.
(b) Unless expressly specified to the contrary, all amounts payable under this Agreement (consideration) by one party (payor) to the other (payee) have been expressed to be exclusive of GST. The payor will, at the same time as paying the consideration to the payee, pay an additional amount on account of the GST, so that after deduction of GST, the payee receives no less than the amount of the consideration.
(c) Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled.
10.1 Term of this Agreement
This Agreement commences at the earlier of:
(a) your acceptance of the terms of this Agreement; or
(b) your first use of the Services, and will continue until terminated under this clause 10 (Term).
10.2 Termination at the end of a Subscription Period
(a) This Agreement will immediately terminate at the conclusion of a Subscription Period, unless prior to the end of the Subscription Period you renew your Subscription Licence for a further Subscription Period.
(b) Renewal of a Subscription Licence can be undertaken either via the Platform (where such functionality is available) or by contacting Medechat to organise your renewal.
10.3 Termination by Medechat
(a) Medechat may terminate this Agreement at any time, and for any reason, by:
(i) the provision of written notice to you (which may include notice via the Platform); or
(ii) permanently disabling or deactivating your access to the Platform.
(b) Medechat may exercise its rights under paragraph (a) notwithstanding that you may have an active Subscription Licence or Evaluation Licence to use the Platform.
10.4 Suspension by Medechat
(a) Medechat may suspend your use of the Platform and the Services, or any part thereof, at any time, and for any reason. Medechat will however provide you with written notice (which may include notice provided via the Platform) if it suspends your use of the Platform or Services (or part thereof), and will advise you subsequently if and when such suspension is lifted.
(b) Medechat may exercise its rights under paragraph (a) notwithstanding that you may have an active Subscription Licence or Evaluation Licence to use the Platform.
10.5 Refund rights for termination or suspension for no fault
(a) If Medechat suspends or terminates this Agreement under clauses 10.3 or 10.4, or if you terminate this Agreement under clause 19.2, and if you have pre-paid for Services or Products not yet delivered as at the date of termination or suspension, then you should contact Medechat to see whether you are entitled for a refund of the prepaid amount, which accords with the value of the Services or Products not yet delivered (as reasonably determined by Medechat), and which will not be delivered as a result of the suspension or termination.
(b) Apart from where required by law, and without limiting Medechat’s rights, Medechat may refuse to provide a refund under paragraph (a) where the reason for the termination or suspension is due to:
(i) a breach of this Agreement or a Third Party Licence (as that term is defined in clause 16) or any law by you;
(ii) an act described in clause 18.2;
(iii) Medechat being required by a government agency to enact the suspension or termination; or
(iv) Medechat reasonably considers such termination or suspension is required to avoid Medechat breaching any law.
10.6 Termination by you
(a) You may terminate this Agreement at any time, and for any reason, upon the provision of written notice to Medechat.
(b) However if you terminate this Agreement:
(i) during any period which you are using a Product or a Service which is charged to you on a subscription basis or periodic basis (Subscription Product or Service); or
(ii) during any period of time Medechat is otherwise delivering a Product or Services to you which you have previously ordered and agreed to pay Fees for (Incomplete Product or Service), then you agree to pay the full amount of the Fees chargeable in respect of the Subscription Product or Service or Incomplete Product or Service (as applicable), as if the Subscription Product or Service had been provided for its full term or the Incomplete Product or Service had been delivered in full.
10.7 Obligations on termination
Upon the termination of this Agreement by you or by Medechat in accordance with this clause 10:
(a) you and each Related Party will be deactivated and cease all use of the Platform; and
(b) you will pay Medechat all Fees:
(i) which are due under clause 10.6(b)
(ii) which are payable under the terms of a Product Addendum upon termination of this Agreement;
(iii) which are otherwise payable under this Agreement (whether or not on termination); or
(iv) which are due but remain unpaid as at the date of termination.
11.1 Subject to clause 12.1, all content and information on the Platform, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is owned by Medechat or its third party licensors. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, code, products, or Services obtained from or through the Platform. Additionally, you agree not to:
(a) use the Platform or its contents for any commercial purpose, other than in your capacity as a Practitioner or Practice Group;
(b) use another person's name, account, identity or password without permission, or use the Platform while impersonating another person;
(c) access, monitor or copy any content or information of the Platform using any robot, spider, scraper or other automated means or any manual process for any purpose without Medechat’s express written permission;
(d) violate the restrictions in any robot exclusion headers on the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(e) take any action that imposes, or may impose, in Medechat’s discretion, an unreasonable or disproportionately large load on its server infrastructure;
(f) deep-link to any portion of the Platform for any purpose apart from where expressly permitted by this Agreement; or
(g) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Medechat in connection with the Platform or the Services (except to the extent specifically permitted by law).
12.1 You acknowledge that by submitting content to the Platform, you expressly grant an irrevocable, perpetual, exclusive, royalty-free, sub-licensable, assignable license to Medechat and its affiliates to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content which you submit to the Platform, including, without limitation, postings on the Platform, commentary in forums or any suggestions or ideas, or any other work, item or thing you upload to the Platform or provide to Medechat (Practitioner Content).
12.2 To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in any Practitioner Content you provide to Medechat, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to Medechat making all uses, edits and modifications of the Practitioner Content in its sole discretion, including, without limitation, as further described in this Agreement.
12.3 You warrant that any Practitioner Content that you post or upload to the Platform will not infringe the Intellectual Property Rights or other rights of any person. For the purposes of this Agreement, the term "Intellectual Property Rights" shall refer to all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs and circuit layouts.
12.4 You warrant that if any Practitioner Content submitted by you to the Platform reproduces the likeness or image of any person, that the person whose image or likeness is reproduced in that Practitioner Content, has provided their express consent to you, for their image or likeness to be published on the Platform.
12.5 You agree that:
(a) the Practitioner Content is not confidential;
(b) you are solely responsible for the Practitioner Content you post on the Platform;
(c) Medechat may reproduce any Practitioner Content on the Platform and will determine in its discretion how it presents your Practitioner Content on the Platform;
(d) Medechat may make any modifications to the Practitioner Content in its sole and absolute discretion, before presenting that Practitioner Content on the Platform; and
(e) Medechat may determine whether or not to attribute the Practitioner Content to you, or remain silent on any attribution.
12.6 You agree that Medechat is under no obligation to edit, monitor or control the Practitioner Content that is published to the Platform by you, a Practitioner, a Practice Group or any other person, but that Medechat reserves the right to do so.
12.7 You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the Platform, any of the following (Infringing Content):
(a) Practitioner Content that infringes, or may infringe, the Intellectual Property Rights or other rights of any person;
(b) Practitioner Content that impersonates any person or entity or otherwise misrepresents your relationship with Medechat or any other person;
(c) Practitioner Content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
(d) Practitioner Content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;
(e) Practitioner Content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;
(f) Practitioner Content that has been solicited by an incentive or payment originating from a real estate agent or a representative of their agency;
(g) unsolicited promotions or SPAM;
(h) Practitioner Content which contains the private information of any person;
(i) Practitioner Content which publishes an image or likeness of a person who has not consented to their likeness or image being published on the Platform;
(j) Practitioner Content that is unrelated to the page of the Platform in which such Practitioner Content is posted; and/or
(k) Practitioner Content which contains viruses, malware or any other malicious software or data.
12.8 To the maximum extent permitted by law, Medechat will have no responsibility or liability for any Practitioner Content or Infringing Content posted, stored or uploaded on the Platform, or for any loss or damage suffered by you or any other person as a result of the Platform storing, holding, or making available, any Practitioner Content or Infringing Content to Patients, or other members of the public.
12.9 Medechat is under no obligation to review any Practitioner Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
12.10 Subject to clause 12.8, if you have any complaints or objections to material or content including Practitioner Content posted on the Platform, or if you consider any Practitioner Content to be Infringing Content, you may contact us and notify us of the relevant content by following our takedown procedure (Takedown Procedure) as published by us from time to time, and by submitting a takedown request (Takedown Request).
12.11 Where you submit a Takedown Request, you agree to follow any procedures which Medechat specifies from time to time, and you agree to provide Medechat with all information which it requests in considering your Takedown Request, including but not limited to information verifying your identity and the basis upon which you consider the relevant Practitioner Content to be Infringing Content.
12.12 You acknowledge that notwithstanding your Takedown Request, Medechat is under no obligation to remove any Infringing Content other than where stated in this Agreement or where required by law.
12.13 If Medechat does remove allegedly Infringing Content, then you acknowledge that such removal is done on a without prejudice basis, and upon such removal, you agree to release Medechat from any action, claim, proceedings, damages or other obligation which you may make, institute or claim against Medechat in relation to the allegedly Infringing Content.
13.1 Medechat will keep confidential all information provided by you or on your behalf that is marked as confidential or should otherwise reasonably be presumed to be confidential, and will only use or disclose such confidential information: (a) for the purpose of providing or procuring Services and Products under this Agreement; (b) with your consent; (c) in anonymized and aggregated form; or (d) as may otherwise be required or permitted by law.
13.5 You undertake and continuously warrant to Medechat that:
(a) where you are an individual, you will only supply Personal Information:
(i) in respect of yourself only; or
(ii) in respect of a person under the age of 18 (Minor) – where you are a parent or legal guardian of that Minor;
(b) where you are a Practice Group:
(i) any Personal Information supplied to Medechat in connection with this Agreement has been collected, used, stored, and disclosed by you (or any other person by your authority) in compliance with all applicable laws and with the consent of any individual to whom the Personal Information relates;
(ii) the individual to whom the Personal Information relates has been made aware of Medechat’s identity, of how to contact Medechat, of the nature of Medechat’s role in the supply of the Platform and the Services, and of all other matters of which Medechat has expressly required that the person be informed, or of which that Medechat or you are required to inform a person about whom you or Medechat collect Personal Information under applicable law and in accordance with best practice; and
(iii) the Practice Group acknowledges that Medechat is authorised, either by consent of the individual or by law, to collect the Personal Information from the User and to use the Personal Information for the supply of the Platform and the Services and as contemplated by this Agreement.
13.6 In respect of any information relating to you or your Patients which is stored in Medechat or entered into Medechat by you or your Patients (including Personal Information) (User Data), that you submit in respect of a Minor, you agree, warrant, and represent that:
(a) you will only submit or upload such User Data via the Platform in accordance with this Agreement and where the date is supplied by the parent or legal guardian of the relevant Minor;
(b) you will obtain the irrevocable consent from the relevant guardian or parent on behalf of that Minor, to Medechat:
(ii) dealing with such User Data in any way in which it is permitted to deal with User Data by law, and otherwise dealing with User Data in respect of a Minor in the same way as it deals with User Data in respect of any other person; and
(c) such User Data is not in any way unlawful, indecent, or likely to offend, injure or harm any person or breach any applicable law and that Medechat’s use, storage, and disclosure of that User Data as contemplated by this Agreement will not as a result of your actions cause Medechat to breach any applicable law (including, without limitation, any law in respect of child pornography or child abuse material).
14.1 You acknowledge and agree that in using the Platform, including by uploading, entering or creating any User Data or Practitioner Content via the Platform, that:
(a) User Data and Practitioner Content will be transmitted over the internet any other network used by the Platform, which may include transmission to servers located in other states or countries;
(b) while Medechat will take all reasonable security precautions, the transmission, upload, download, or storage of User Data and Practitioner Content via the Platform is not guaranteed to be, and may not be, secure;
(c) transmitting, uploading, or downloading User Data and Practitioner Content via the Platform may render the yours or Patient’s systems vulnerable to viruses, malware, or other forms of attack that are beyond the reasonable control of Medechat; and
(d) you and Patients are at all times responsible for the security of your own systems, and the security of the User Data and Practitioner Content (as applicable).
14.2 Medechat will comply with any laws requiring Medechat to notify any person of any notifiable data breach. Otherwise, to the maximum extent permitted by law, Medechat will not be liable or responsible for protecting the security of User Data or Practitioner Content transmitted, uploaded, or downloaded via the Platform, or for any loss, cost, expense or damage suffered by you or a Patient as a result of any unauthorised access or use of the User Data, Practitioner Content or Medechat’s systems.
15.1 Subject to clause 15.2, Medechat is under no obligation to provide updates, upgrades or new releases for the Platform (Upgrades) or Platform maintenance and support for the Platform (Support).
15.2 Medechat will only provide Upgrades and Support to the User if the User has purchased the right to receive Upgrades and Support from Medechat, which may include, without limitation, via the purchase of a Subscription Licence.
If the User does purchase Upgrades and/or Support from Medechat, then the terms of providing those Upgrades and Support will be separately specified by Medechat or its resellers at the time of purchase.
15.3 This Agreement will, unless specified by Medechat to the contrary in writing, apply to all Upgrades supplied by Medechat to the User (and a reference to the “Platform” will be deemed to include a reference to each Upgrade which Medechat supplies to the User).
16.1 The Platform may incorporate components licensed to Medechat by third parties, which may be subject to their own End User Licence Agreements (Third Party Licences).
16.2 You agree that the use of the Platform, in addition to this Agreement, will be governed by any terms and conditions specified by any Third Party Licence that applies to the Platform, including but not limited to those appended to this Agreement or separately notified to you.
16.3 You agree to be bound by and observe all terms and conditions of any Third Party Licence and acknowledges that any breach of a Third Party Licence will entitle Medechat to terminate the Licence and exercise its rights under clause 10.
17.1 You indemnify and keep indemnified, Medechat, its agents, employees and officers against all loss, cost, expense or damage which Medechat, its agents, employees or officers suffer or incur, as a direct or indirect result of:
(a) your breach of this Agreement or violation of any law or Medechat Intellectual Property Rights or Intellectual Property Rights or other rights of a third party;
(b) you posting or uploading any Infringing Content to the Platform; or
(c) any legal proceedings or any claim made against Medechat by a third party, which arises directly or indirectly from:
(i) any Infringing Content posted or uploaded by you to the Platform;
(ii) the conduct of any consultation by you through the Platform.
17.2 Any amount payable by you under the forgoing indemnity will be reduced to the extent that Medechat caused or contributed to the relevant act or event giving rise to the indemnity.
18.1 You acknowledge and agree that:
(a) video consultations will depend on a range of factors including the quality of the Patient’s internet connection, the quality of your internet connection, or general traffic on the internet; and
(b) Medechat has made no warranties that the Services or Products will be error free.
18.2 You agree that Medechat will not be liable or responsible for any failure in, or delay to, the provision of the Services or Products or in Medechat complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:
(a) epidemic, pandemic, fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
(c) a significant demand being placed on telecommunications infrastructure, or on Medechat’s services, which is above the usual level of demand and which results in a failure of Medechat’s software and hardware to function correctly or in a timely manner;
(d) the failure of any third party to fulfil any obligations to Medechat; or
(e) any other circumstances or event similar to the above which is beyond the reasonable control of Medechat.
18.3 To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement. However, if a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits us to limit our liability, then Medechat’s liability is limited to:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired, and except in the case of a major failure (as that term is defined in the Australian Consumer Law), Medechat can elect as between the remedies set out in paragraphs (a) and (b) above.
18.4 Subject to clause 18.3, and to the extent permitted by law, Medechat’s liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Platform or any of the Services or Products, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:
(a) Medechat excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or any of the Products or Services; and
(b) Medechat’s total aggregate liability under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or any of the Products or Services, is otherwise limited to the greater of:
(i) AUD10.00; and
(ii) the total Fees you have paid to us for the Products or Services that are the subject of the relevant claim.
19.1 Medechat reserves the right to revise and amend this Agreement in its discretion, as follows:
(a) if Medechat considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Agreement (as applicable) on the Platform; and
(b) if Medechat considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the Platform describing the change.
19.2 Your continued use of the Platform after an amendment will mean that you agree to that amendment. You must stop using the Platform if you do not agree to an amendment. If you do cease all use of the Platform due to your disagreement with an amendment, then you should contact Medechat to see if you are entitled to a refund of any Fees for unused Products or Services as provided in clause 10.5.
20.1 In the interpretation of this Agreement unless the context otherwise requires:
(a) headings and words in bold type are included for convenience only and do not affect interpretation;
(b) the words "includes" or "including" mean "includes without limitation" or "including without limitation";
(c) a reference to a word includes the singular and the plural of the word and vice versa;
(d) a reference to a gender includes any gender;
(e) if a word or phrase is defined, then other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
(f) a term which refers to a person includes a person in any capacity, a body corporate, an unincorporated body (for example a society or association), a trust, a partnership, a sovereign state, a government or a government department or agency;
(g) a reference to a document includes a reference to that document as amended, novated, supplemented, varied or replaced;
(h) a reference to a recital, clause, paragraph, schedule, annexure or other part is a reference to an item of that type in this agreement;
(i) a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors, personal legal representatives and permitted assigns;
(j) a reference to a statute or regulation or a provision of a statute or regulation includes a reference to that statute, regulation or provision as amended or replaced, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute; and
(k) if an individual party to this Agreement consists of two or more persons, then those persons are bound both jointly and severally.
20.2 Any notice given under this Agreement must be in writing and must be signed by the party giving the notice, or alternatively must be given via functionality contained in the Platform. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
(a) in the case of a notice delivered by hand, when so delivered;
(b) in the case of a notice sent by pre-paid express post, on the third clear Business Day after the date of posting;
(c) in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or
(d) in the case of a notice sent via functionality contained in the Platform, at the time the notice was sent,
but if the effect of paragraphs (a) - (d) above is that a notice is taken to have been received before 9:00am or after 5:00pm on a day which is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia (Business Day), or on a day which is not a Business Day, then the notice is taken to have been received at 9:00am of the next Business Day.
20.3 Neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.
20.4 There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
20.5 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
20.6 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the extent that the invalid or unenforceable provision will be treated as severed from this Agreement.
20.7 You must not assign or novate any of your rights or obligations under this Agreement. You agree that Medechat may however assign or novate this Agreement at any time, with or without notice to you.
20.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
20.9 This Agreement will be construed in accordance with and will be governed by the laws in force in the State of Victoria, Australia. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Victoria, Australia or the Commonwealth of Australia and any courts of appeal from these courts.