Thank you for accessing our website located at www.healthengine.com.au ('the Website'). The Website is owned and operated by HealthEngine Pty Ltd of PO Box 75, Northbridge, WA 6865, Australia ('H.E.').
Please read through the following general terms and conditions which will govern your use of the Website ('Terms'). By using this website, you acknowledge and confirm that you have read and understood these Terms and agree to abide by these Terms.
Licence to Use Website
1.1 H.E. grants to you a limited, revocable right to access and use the Website and to print pages therefrom for personal, non-commercial or informational purposes only.
1.2 Except as permitted under these Terms and applicable laws, no part of this Website may be otherwise reproduced, adapted or transmitted in any form by any process without the specific written consent of H.E.
Copyright in Website Content
2.1 Copyright in all content contained on this Website, including but not limited to text, drawings, photographs and page layout, subsists under, and is protected by, the Copyright Act 1968 (Cth) and international copyright laws and, unless stated otherwise, is owned by H.E. or used by H.E. under licence.
H.E. Trade Marks
3.1 Unless otherwise indicated, the HealthEngine® and Open Appointments® logos appearing on the Website are trade marks belonging to H.E. Any use of these trade mark without the prior written consent of H.E. is a breach of the Trade Marks Act 1995 (Cth) and relevant laws in other countries and is expressly prohibited.
3.2 Third party trade marks may appear on this Website and all rights therein are reserved to the registered owners of those trade marks.
Linking to the Website
4.1 H.E. grants to you a limited, revocable, non-exclusive right to create a hypertext link to the home page of the Website, provided that H.E. is notified of, and approves, such hyperlink and such hyperlink does not portray H.E. or its products in a false, misleading or otherwise illegal or offensive manner.
4.2 You may not make any part of the Website available as part of another website by use of inline imaging, framing technologies or any other method of incorporating parts of the Website into another site without the prior written consent of H.E.
4.3 You will be liable for any direct or indirect consequences of hyperlinking or framing and will fully indemnify H.E. in respect of any loss or damage suffered by HE in respect thereof.
Linked Third Party Websites and Information
5.1 The Website may contain links to third party information and products. Such content and links are not owned, operated or maintained by H.E. nor are they affiliated or associated with H.E. in any way, unless indicated on the external site.
5.2 H.E. is not responsible for the content of any third party material appearing on the Website or any third party sites linked to the Website. Such information, advertisements or links are purely for information purposes only and are not endorsements by H.E. as to the quality, accuracy or completeness of the third party information or sites.
5.3 If you decide to access any of the third party services or websites advertised or linked, you do so entirely at your own risk and, as far as lawfully possible, H.E. accepts no liability or responsibility for the actions or omissions of users of the Website or linked sites in relation to the content contained therein.
User Submissions & Testimonials
6.1 Subject to its legal obligations with respect to privacy, any material, information or testimonials submitted to H.E. and posted on the Website will be considered as having been voluntarily submitted for use by H.E. and as non-confidential and non-proprietary information and H.E. is free to use such information on the Website and otherwise at its sole discretion, whether for commercial or non-commercial purposes and without liability or compensation to any person or entity.
Limitation of Liability
7.1 While H.E. takes all reasonable care to include accurate and up-to-date information on the Website, the information provided should not be relied upon as being error free or accurate and H.E. makes no representation or warranty as to the timeliness, accuracy, suitability or completeness of any information, content, services, materials and products provided on or via the Website, nor does it accept any responsibility arising in any way for errors or omissions.
7.2 As far as lawfully possible, H.E. accepts no liability or responsibility for the actions or omissions of any users of the Website in relation to the content contained herein.
7.3 All information provided on the Website is general in nature and does not constitute medical or any other form of advice and is provided 'as is' without warranty of any kind, express or implied, to the fullest extent possible under law.
7.4 In no event will H.E. be liable to any party for any direct, indirect, incidental or consequential damages or losses whatsoever arising from access to, reliance on, or use of or downloading of information from the Website, (or any associated or linked online service), including, without limitation, damages for loss of profits, business interruption, loss or information or damage to systems due to viruses or other harmful components.
7.5 H.E. is not responsible for the deletion, failure to store, misdelivery, or untimely delivery of any material accessed through the Website or external sites and will not be liable for any damage or loss whatsoever resulting from any users downloading or accessing any information or material through the Website.
7.6 H.E. does not accept any responsibility or liability whatsoever for any interruption or discontinuance of any or all functionality of the Website (including hypertext links to external sites if any) for any reason whatsoever.
7.7 H.E. does not guarantee that files or programs executed and/or downloaded from this Website or provided via this Website are free from viruses and other unauthorised or malicious code or corruption that could damage or interfere with data, hardware or software and H.E. is not liable for any such damage or interference which may be suffered in connection with use of the online services.
7.8 H.E. does not guarantee the security of any information sent to the Website via the Internet and such information is sent at the transmitter's own risk.
7.9 H.E. does not endorse the content of advertisements appearing on the Website and has no liability in respect thereof.
Changes to the Website
8.1 H.E. reserves the right to revise, change, modify or delete the content of any part of the Website, including any product available through the Website, at any time in its sole discretion and without prior written notice.
8.2 H.E. reserves the right to terminate or restrict access to the Website or modify, suspend or cancel any of the online services provided via the Website at any time without notice.
9.1 H.E. reserves the right to revise, change or modify these Terms at any time by posting new Terms on the Website. You are bound by any such revisions and should therefore visit the Terms each time you visit the Website to review the current Terms by which you must abide.
Bookings with Practitioners via the Website
10.1 As the information appearing on the Website is provided to H.E. by third parties, H.E. will have no liability in respect of any loss or damage arising from:
(a) third party service provider ('Practitioner') information which appears on the Website, including the manner in which the information is displayed or information which may be:
(i) out of date; or
(ii) inaccurate; or
(b) duplication of Practitioner names where two or more Practitioners have the same name.
10.2 H.E. will determine, at its discretion, the method by which it confirms to Users of its booking system ('Users') that their booking has been recorded via the Website.
10.3 Such confirmation is the sole service H.E provides to Users via the Website and, thereafter, all dealings and communication regarding appointments or any treatment arising therefrom will be between the User and Practitioner and H.E. is not responsible in any manner for any communication between the User and the Practitioner has no liability in respect of such dealings whatsoever.
10.4 H.E. is not an agent for any of the Practitioners listed on this Website and H.E. has no responsibility for and no liability whatsoever in respect of the conduct of an appointment by the Practitioner, timing of or attendance at an appointment or quality of service provided by a Practitioner.
11.1 H.E. will not collect any personal information about you from your use of the Website, except where you have provided such information to H.E.
11.2 In specifically and knowingly providing any personal information to H.E. via the Website, you consent to H.E. using that personal information lawfully at its sole and absolute discretion, including for the purposes of providing promotional and marketing materials by other means.
11.3 You warrant that you have obtained the consent of any third person whose personal information you post to the Website.
11.4 As a necessary adjunct to the proper operation of the Website, H.E. staff and contractors, who are subject to obligations of confidentiality, may be given access to personal information as part of their services.
11.5 For record-keeping purposes H.E. may retain copies of email sent to it by you.
12.1 If any of these Terms are held to be invalid, unenforceable or illegal for any reason, the remaining Terms will continue to apply.
The content on or accessible through HealthEngine.com.au is for informational purposes only and does not constitute medical advice.
By using this Website, you agree to the Terms. We may vary these Terms at any time without notice and, if we do, we will provide the updated version on this Website.
If you do not agree to any of the Terms, you must leave this Website and not use our Online Services.
Reviews that appear on HealthEngine.com.au are moderated in line with the Australian Health Practitioner Regulation Agency (AHPRA) Guidelines and National Law.
HealthEngine Practice Customer Terms and Conditions
These HealthEngine Practice Customer Terms and Conditions ("T&Cs") apply to the supply of any and all Services by HealthEngine Pty Ltd, ABN 19138767021 ("HealthEngine") whether those Services are provided through HealthEngine.com.au ("Website") or otherwise.
Anyone submitting a Form and/or otherwise utilising or accessing the Services is deemed to agree to these T&Cs and the other terms of the Agreement. A "Practice Customer" includes a person or organisation named as a "Practice" and/or a named as a "Practitioner" and/or otherwise identified as a practitioner user of the Services in a Form. A Form in combination with these T&Cs constitutes the "Practice Customer Agreement" (or the "Agreement" ) between HealthEngine and each applicable Practice Customer. This Agreement binds each Practice Customer referred to in a Form jointly and severally and each reference to a Practice Customer is a reference to each of the Practices referred to in a Form and each Practitioner named as a user of the Services in that Form.
If you are utilising or accessing the Services on behalf of your employer or another entity, you confirm you have full legal authority to bind your employer or applicable entity to these T&Cs and the Agreement.
|Account||means an online account made available to a Practice Customer by HealthEngine to enable the Practice Customer to manage among other things its profile and Appointment Booking Widget and access other digital services provided by HealthEngine.|
|Appointment Booking Widget||means the Appointment Booking Widget on the Website through which the Practice Customer publishes their available appointments and which is able to record appointments with the Practice Customer made by Visitors through the Website.|
|Content||means anything published by a Practice Customer directly or indirectly via the Website (including material provided by a Practice Customer to HealthEngine for publishing on the Website).|
|Fees||means the amounts invoiced to a Practice Customer by HealthEngine or otherwise payable by a Practice Customer to HealthEngine for the Services.|
|Form||means the online registration pages or other HealthEngine registration forms or agreement a Practice Customer completes in signing up for the Services, together with the information provided in them, and also includes any HealthEngine form submitted by a Practice Customer requesting services from HealthEngine.|
|PMS||means a Practice Customer's Practice Management Software.|
|Practice||means a healthcare practice, centre, clinic or office within which one or more Practitioners provide healthcare services (which could be a sole practitioner or an entity or other association).|
|Practitioner||means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a practice).|
|Practitioner Content||means any details, content, images, data or information submitted by a Practice Customer to HealthEngine, including the Practice Customer's name, business name, service details, logo and trade marks.|
|Visitors||means the members of the public who use the Website and includes those members of the public who book appointments with a Practice Customer.|
|Services||means the online appointment publishing, management and matching with Visitor searches and related services provided by HealthEngine for use by the Practice Customer.|
|Term||has the meaning given to that term in Clause 9(a).|
2. Practice Customer key obligations:
The Practice Customer appoints HealthEngine to provide the Services in accordance with this Agreement for the Term and agrees:
(a) to pay the Fees in return for the Services.
(b) that it is licensed with all relevant regulatory boards and/or other bodies, councils or authorities to enable the Practice Customer to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practice Customer is offering such healthcare services.
(c) to maintain throughout the Term any and all qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to members of the public.
(d) to ensure that all Content including details about the Practice Customer and any other information it provides to HealthEngine or uploads to the Website is accurate and up to date and remains accurate and up to date and that it will indemnify HealthEngine for any liability or expense resulting from outdated or inaccurate Content. The Practice Customer grants HealthEngine a licence to use the Content for the purposes of providing the Services.
(e) to notify HealthEngine of any change to any qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to the Visitors or of any breaches of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence which may impact the Practice Customer's ability to provide healthcare services to the Visitors.
(f) that it will actively and consistently ensure its Appointment Booking Widget is accurate and up to date by maintaining the Appointment Booking Widget on a regular basis and, in any event, as often as is reasonable so as to minimise the possibility of a Visitor booking an appointment through the Website that does not exist in the Practice Customer's practice schedule.
(g) that it will:
(i) actively work with HealthEngine to promote to existing patients and clients of the Practice Customer the existence of HealthEngine and the Practice Customer participation with the Service so that those patients and clients may become Visitors; and
(ii) encourage patient and client use and referral of the Service by use of in-practice materials including but not limited to brochures, flyers, decals and posters and by way of co-branding and marketing to those patients and clients and where and when relevant the use of direct links from the practice website, if there is one, to the HealthEngine site for that Practice Customer's appointments and availability.
(h) that only a Practitioner named as a user of the Services in a Form is permitted to access the Services and this Practice Customer Agreement is deemed to be entered into, on a joint and several basis, by each of the Practice referred to in a Form and each Practitioner named as a user of the Services in that Form. Other Practitioners, even if they work in the same Practice as a Practice Customer, are not entitled to access the Services until they are named as a user in a Form.
(i) that only a Practitioner/Practice named as a user of the Services in a Form will be available on the Appointment Booking Widget;
(j) to promptly contact directly the Visitor upon receiving (through the Website and/or Appointment Booking Widget) a booking or query from such Visitor, and also where the Practice Customer wishes to change or cancel such a booking made by a Visitor.
(k) to notify HealthEngine of any complaints received by the Practice Customer from any person relating to the Services.
(l) that HealthEngine is not a party to any dealings, arrangements, agreements or similar between the Practice Customer and the Visitor and the Practice Customer is solely responsible for all care provided to a Visitor and for collection of any fees for healthcare services provided to a Visitor unless agreed by HealthEngine and the Practice Customer.
(m) to maintain all insurance policies, including but not limited to "Professional Indemnity" (including medical negligence if required) and "Public Liability" insurance in relation to the services offered by the Practice Customer.
(n) to ensure that the Content does not infringe the copyright or other rights of any other person and, if any third party makes a claim arising from the Content, the Practice Customer agrees to indemnify HealthEngine against any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable legal expenses, arising from or related to that claim, and (at HealthEngine's option) to promptly modify the Content so that it ceases to infringe any third party rights, or procure for HealthEngine the right to use the Content free of any third party claim, or allow HealthEngine to defend any claims against it resulting from the relevant Content (and Practice Customer shall provide all necessary support if it does so).
(o) to obtain any necessary support required to integrate the Website and the Practice Customer's PMS directly from the relevant PMS provider rather than from HealthEngine, and the Practice Customer agrees that HealthEngine is not responsible for providing integration support. The Practice Customer indemnifies HealthEngine against any damages or loss that may result from the implementation of a HealthEngine integration with the Practice Customer's PMS and any associated access to the Practice Customer's systems or maintenance of or changes to that PMS integration by HealthEngine.
(p) to indemnify HealthEngine against any fines, damages or loss that result from the Practice Customer's use of the Services.
(q) to maintain as confidential and to keep secure all information regarding a Visitor and any other data received from HealthEngine, and not disclose or use any information regarding a Visitor or any other data received from HealthEngine other than for the purposes of this Agreement or the provision of the relevant healthcare services (except, in the case of information regarding a Visitor, with the consent of that Visitor).
(r) to comply with all applicable privacy and information laws and regulations so far as they relate to the Practice Customer's collection of Visitors' personal and health information and will indemnify HealthEngine against fines or damages that result from the Practice Customer's non-compliance with this provision.
(s) to notify HealthEngine immediately in the event of a data breach concerning a Visitor's personal information.
(t) that access to and use of the Services is solely at the risk of the Practice Customer.
3. HealthEngine key obligation
(a) to provide the Services in accordance with the Practice Customer Agreement.
(b) to use reasonable endeavours, competence, diligence and skill to maintain the operation and provision of the Services as specified.
4. The Services and Intellectual Property
(a) The Practice Customer agrees that HealthEngine is entitled to make such changes to the Services, the Website, its internal processes and the interface of the Services with the Practice Customer from time to time as HealthEngine considers appropriate in its sole discretion.
(b) The Practice Customer acknowledges and agrees that HealthEngine may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services.
(c) The Practice Customer acknowledges and agrees that HealthEngine is not liable for any delay in delivering Visitor booking requests to the Practice Customer or delays in processing or delivering files containing such requests.
(d) The Practice Customer acknowledges and agrees:
(i) that all intellectual property rights in the Services, and all HealthEngine know how, software, materials and methodologies utilised in providing or incorporated into the Services or the Website, (collectively the "IPR") remain vested in HealthEngine, and the Practice Customer has no rights in relation to that IPR;
(ii) not to copy, alter, modify or reproduce any such IPR or any part of it; and
(iii) that the Services and the IPR are made available on an "as is" basis for use by the Practice Customer in accordance with this Agreement and must not be distributed to or shared with any third party or used for any other purpose.
(e) The Practice Customer must not use any HealthEngine logo or trade mark (other than as specifically authorised under this Agreement and in materials specifically approved by HealthEngine) without the prior written consent of HealthEngine.
5. Practice Customer's use of the Services
(a) The Practice Customer agrees to keep confidential and secure any passwords or other security credentials supplied by HealthEngine.
(b) The Practice Customer agrees to notify HealthEngine immediately of any unauthorised access to the Practice Customer's Account.
(c) The Practice Customer agrees that its use of the Services including access to the Website, its Account and Appointment Booking Widget will be for lawful purposes only and further agrees that it will not use the Services to:
(i) post or transmit any material on the Website which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful, or racially or ethnically or otherwise objectionable;
(ii) encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
(iii) harm children in any way;
(iv) impersonate a person or entity or falsely state their affiliation with a person or entity;
(v) upload, post, transmit or otherwise make available any content that infringes the rights of another party including but not limited to trademark, copyright and other intellectual property rights; or
(vi) transmit or otherwise make available any material that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(d) The Practice Customer agrees that it will not use the Website to advertise or perform any commercial or other form of solicitation that is not authorised by HealthEngine and/or the Practice Customer Agreement.
(e) The Practice Customer agrees that it will not misuse the Appointment Booking Widget, and will ensure that the Appointment Booking Widget is not used for another healthcare provider's bookings and does not list appointments which are not available.
6. Billing and other Financial Provisions
(a) The Fees payable for the Services are set out and agreed in the Form (or are as agreed separately in writing with HealthEngine). A separate Fee is payable for each Practitioner named as a user of the Services in the applicable Form, with effect from activation of that Practice Customer's Appointment Booking Widget.
(b) Unless otherwise agreed in writing with HealthEngine, all Fees are payable monthly in advance during the Term.
(c) If a trial period applies, the payment and related terms applicable to any trial period will be as specified in the Form or otherwise as agreed in writing with HealthEngine.
(d) The Practice Customer must pay all Fees required to be paid under the Agreement in accordance with the requirements, and on or before the due date, specified in the Form or as otherwise agreed in writing with HealthEngine.
(e) Unless otherwise agreed in writing with HealthEngine, Fees must be paid online by credit card or, if the Practice Customer has provided the required direct debit authority signed by the Practice Customer, by direct debit. Please contact HealthEngine is you wish to arrange payment by direct debit.
(f) If requested by HealthEngine, the Practice Customer must provide valid credit card details to HealthEngine for payment of any Fees. Subject to any other payment arrangements expressly agreed in writing with HealthEngine, the Practice Customer authorises card with any Fees when due and payable.
(g) Subject to prior agreement in writing with HealthEngine, HealthEngine may invoice the Practice Customer the Fees specified in the Form and, if so, each such invoice is payable immediately upon receipt (or in accordance with such other payment terms as agreed in writing with HealthEngine). In no circumstances shall the Practice Customer make any deduction or withhold payment for any reason whatsoever.
(h) If any payment is not made by the due date HealthEngine may:
(i) Suspend or cancel the Account; and/or
(ii) Suspend or cancel the Appointment Booking Widget; and/or
(iii) Suspend or cancel the Practice Customers' access to the Services; and/or
(iv) Cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered to the Practice Customer by HealthEngine.
(i) All Fees stated are exclusive of GST and other applicable taxes, which must be paid by the Practice Customer.
(j) Certain optional Services such as SMS notification and reminder services may require the Practice Customer to pay additional fees and/or purchase SMS credits in advance. The terms of any such additional services, and the payments for them, will be provided in the Form or agreed separately in writing with HealthEngine.
7. Publicity and Third Party Use and Disclosure
Practice Customers agree that HealthEngine may use any Practitioner Content, for HealthEngine's promotion and marketing purposes and grants HealthEngine an irrevocable licence to use such content in this way, providing that HealthEngine does not use any Practitioner Content for promotion or marketing purposes in a way which would clearly detract from the good name and reputation of the Practice Customer. Such licence shall continue despite any termination of this Agreement.
Practice Customers agree that HealthEngine may place any Practitioner Content on any third party websites or infrastructure or supply to third parties any Practitioner Content in order to offer the Services through a different website or through a partner organisation.
8. Third Party Websites and Advertising
The Website may contain information and advertising from third parties and links to third party websites ("3rd Party Content"). HealthEngine is not responsible for 3rd Party Content, including its accuracy, nor for any reliance the Practice Customer places on 3rd Party Content. HealthEngine may engage third parties to provide 3rd Party Content at its sole discretion.
9. Term, Renewal & Termination
(a) Unless agreed otherwise in writing with HealthEngine (including in the Form) or this Agreement is otherwise terminated in accordance with its terms:
(i) subject to Clause 9(b), the initial term of the Practice Customer Agreement will commence on the date a Practice Customer submits a valid and complete Form requesting registration with HealthEngine and will continue until:
a. if a trial period applied to the Services, and the Practice Customer has terminated the Agreement in accordance with the terms of the trial period, the end of the trial period;
b. if a trial period applied to the Services, and the Practice Customer has not terminated the Agreement in accordance with the terms of the trial period, the date 12 months after the end of the trial period; or
c. if no trial period applied to the Services, the date 12 months after the date of activation of the Appointment Booking Widget activated under the Agreement.
(ii) at the end of that initial term (provided that the initial term did not end at the end of the trial period), and at the end of each subsequent term of 12 months which arose by prior application of this Clause 9(a)(ii), the term will be automatically renewed for a subsequent 12 month period if the Practice Customer does not notify HealthEngine in writing at least 30 days prior to the end of the previous term, of their wish to terminate the Practice Customer Agreement. For the avoidance of doubt this Clause 9(a)(ii) may continue to apply multiple times under this Agreement until the Practice Customer notifies HealthEngine in writing at least 30 days prior to the end of the previous term, of their wish to terminate the Practice Customer Agreement.
"Term" means that period from commencement of the initial term of the Practice Customer Agreement until termination or expiry of the Practice Customer Agreement in accordance with this clause and includes any renewal period. For the avoidance of doubt, upon automatic renewal the Practice Customer is obliged to pay the required Fees associated with the Practice Customership for the renewal term as outlined in Clause 6 above.
(b) The provision of Services and the obligation to pay Fees will not commence until the date a Practice Customer initiates activation of an Appointment Booking Widget or Practice Profile which ever is the sooner.
(c) Notices of request or instruction for termination, referred to in Clause 9(a) above, can only be accepted in writing from the practice owner or person whose credit card and authority was used to authorise payment.
(d) HealthEngine may terminate the Practice Customer Agreement by notice in writing at any time in its absolute discretion and (in the event of termination pursuant to this clause (d) only) will provide a refund of any pre-paid Fees for which Services will not be provided by HealthEngine.
(e) In addition, HealthEngine may immediately upon notice in writing to a Practice Customer terminate this Agreement and/or suspend the Services provided under it in the event that a Practice Customer:
(i) breaches this Agreement; or
(ii) ceases to be able to pay its debts as they become due, or becomes or is in jeopardy of becoming subject to any form of insolvency or bankruptcy administration; or
(iii) loses its relevant regulatory or other licence or authority to deliver the relevant healthcare services,
(iv) behaves in a way which would clearly detract from the good name and reputation of HealthEngine
and HealthEngine will not be obliged to provide the Practice Customer with any refund or credit of or in relation to Fees paid.
10. Warranties, Liability & Indemnities
(a) The Practice Customer acknowledges and agrees that HealthEngine is not a healthcare provider and cannot be held liable for the care of a Visitor which will at all times, as between the Practice Customer and HealthEngine, remain the sole responsibility of the Practice Customer.
(b) The Practice Customer will indemnify HealthEngine against any and all claims, actions,proceedings, losses, damages, liabilities and expenses, including reasonable legal expenses, arising from or related to any treatment provided by the Practice Customer to a Visitor or arising from or related to the Practice Customer's use of the Services.
(c) HealthEngine acknowledges that certain laws imply terms, conditions or warranties into contracts for the supply of goods or services that cannot be excluded. Nothing in this Agreement is intended to exclude or restrict the application of such laws.
(d) Subject to Clause 10(c), HealthEngine excludes to the fullest extent permitted by law all implied rights, remedies, guarantees, conditions and warranties of or in favour of any Practice Customer or third party in respect of goods and services related to the Practice Customer's use of the Services and in particular:
(i) HealthEngine does not warrant that provision of the Services will be free of delays, uninterrupted, error free or free of viruses or bugs;
(ii) HealthEngine will have no responsibility or liability for any loss or damage that a Practice Customer incurs including damage to a Practice Customer's software or hardware and/or loss of data arising from a Practice Customer's use of or access to the Services; and
(iii) HealthEngine will have no responsibility for any loss caused by the Practice Customer's negligence; the Practice Customer's breach of the Agreement; or their failure to follow reasonable instructions.
(e) If any term, condition or warranty is implied into this Agreement and cannot be excluded, then to the extent permitted by law the liability of HealthEngine for a breach of the implied term, condition or warranty will be limited as determined by HealthEngine in its sole discretion to:
(i) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
(f) To the fullest extent permitted by law, HealthEngine:
(i) excludes any and all liability for any loss of profits, loss of revenue, loss of opportunity, loss of data or consequential or indirect loss; and
(ii) limits its aggregate liability under or in connection with the Agreement and the Services to the Fees paid under this Agreement during the most recent 3 consecutive calendar months prior to the relevant claim being made.
(b) The Practice Customer agrees that HealthEngine has provided the Practice Customer with the terms and conditions that apply to the use of and access to the Website, and the Practice Customer agrees to comply with and be bound by those terms and conditions.
12. Force Majeure
(a) A party to this Agreement is not liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure. In this Agreement, "Force Majeure" means a circumstance beyond the reasonable control of the non-performing party.
(b) If any delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party's obligations will be suspended for the period of the delay.
(c) If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, any party may immediately terminate the Agreement upon notice in writing to the other parties.
(d) Nothing in this Clause 12 applies to an obligation to pay money.
(a) If there is any inconsistency between any of the documents that comprise this Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Form prevail over the other documents to the extent of the inconsistency, and so on):
(i) the Form;
(ii) these T&Cs;
(iii) any other document referenced or comprised in the Agreement.
(b) The Practice Customer warrants and represents that it has not relied on any term, undertaking, inducement or representation made by, or on behalf of, HealthEngine which has not been expressly stated in this Agreement.
(c) The parties agree that the terms and conditions of this Practice Customer Agreement and matters relating to its performance are confidential and shall not be disclosed to third parties unless the parties to this Practice Customer Agreement agree, except where such disclosure is required by law or is to the respective parties' advisors, who shall in turn be required to keep the disclosed information confidential.
(d) Notice may be given by email. The Practice Customer agrees that HealthEngine may give notice by sending an email to the address provided by the Practice Customer as part of the sign-up or account set-up process, or as later notified by the Practice Customer. The Practice Customer may send notices to HealthEngine at support@HealthEngine.com.au.
(e) Except as otherwise agreed in writing the Practice Customer Agreement forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
(f) The Practice Customer Agreement will be governed by and construed in accordance with the laws of the State of Western Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Western Australia.
(g) HealthEngine has the right, at any time, to change, modify or vary the Practice Customer Agreement or these terms and conditions or any part thereof or impose new terms and conditions, including, but not limited to, adding fees and charges for the Services. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means including, but not limited to, posting on the Website or by electronic or conventional mail or by any other means which HealthEngine considers reasonable. Use of the Services or the Website by a Practice Customer after such notice shall be deemed to constitute acceptance by the member of such changes, modifications, additions or deletions.