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Terms of Use

 

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 7754, Cloisters Square PO, WA 6850, 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.

Updates

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.

Privacy

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.

11.6 The Website contains links to other sites that are not affiliated or associated with, or controlled by H.E. and H.E. has no responsibility for their privacy practices and this Privacy Policy applies only to those parts of the Website within the control of H.E.

11.7 H.E. may change its Privacy Policy from time to time at its discretion and without notice. If any such changes are made, H.E. will make all reasonable efforts to bring those changes to the attention of its Users.

General

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.

Applicable Laws

13.1 These Terms of use of the Website are governed by the laws of the State of Western Australia.

The content on or accessible through HealthEngine.com.au is for informational purposes only and does not constitute medical advice.

These Terms of Use ("Terms") apply to your use of this website ("Website") operated by HealthEngine Pty Ltd (referred to below as "us" or "we") and also applies to any information provided by us on this Website, and any messages sent to or from us electronically ("Online Services").

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, ACN 138767021 ("HealthEngine") whether those Services are provided through HealthEngine.com.au (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.

1. Definitions

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 Plugin and access other digital services provided by HealthEngine.
Appointment Plugin
Means the plugin provided by HealthEngine for embedding on Practice Customer assets including, but not limited to, practice websites, Facebook profiles, and practice apps, through which the Practice Customer publishes their available appointments and receives bookings.
Claim
Means, in relation to any person, a damage, loss, cost, fine, penalty, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
Content
Means any information or material of any kind published or made available to HealthEngine by the Practice Customer in connection with the Services or the Website (including material provided by a Practice Customer to HealthEngine for publishing on the Website).
Fees
Means the fees payable by a Practice Customer to HealthEngine for the Services, and includes Subscription Fees and Transaction Fees.
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 relating to a Practice Customer's Practice and Practitioners and submitted by the Practice Customer to HealthEngine, including the Practice Customer's name, business name, service details, logo and trade marks.
Services
Means the services provided by HealthEngine for use by the Practice Customer specified in a Form, or otherwise requested by the Practice Customer from time to time where such request is accepted by HealthEngine.
Subscription Fees
Means fees relating to Services provided to the Practice Customer on a monthly fixed fee subscription basis, such as initial set up, professional profiles and featured listings.
Term
Means the period from commencement of the Practice Customer Agreement until termination of the Practice Customer Agreement in accordance with clause 9(a).
Transaction Fees
Means fees relating to Services provided to the Practice Customer calculated on the basis of the number and/or type of transaction, such as appointment marketing and the recall product.
User
Means a Practitioner named in the Form as a permitted user of the Services.
Visitor
Means a member of the public who uses the Website and includes a member of the public who books an appointment with the Practice Customer.

2. HealthEngine key obligations

HealthEngine must:

  1. provide the Services in accordance with this Agreement;
  2. provide the Services in a competent and diligent manner; and
  3. collect, store and disclose all personal information received by HealthEngine from the Practice Customer in accordance with the HealthEngine Privacy Policy.

3. Practice Customer key obligations

The Practice Customer must:

  1. pay the Fees;
  2. use the Services solely in accordance with this Agreement for the purpose of promoting its Practice and managing appointments and referrals;
  3. hold throughout the Term all licences with all relevant regulatory boards and/or other bodies, councils or authorities necessary to enable the Practice Customer to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practice Customer operates;
  4. 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;
  5. ensure that the Content is accurate and up to date and remains accurate and up to date and it will indemnify HealthEngine for any Claim resulting from outdated or inaccurate Content;
  6. notify HealthEngine of any change to any of the Practice Customer's qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to Visitors or of any breaches of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence by the Practice Customer which may impact its ability to provide healthcare services to Visitors;
  7. actively and consistently ensure its Content that is published on the Appointment Plugin is accurate and up to date by maintaining the Appointment Plugin 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;
  8. actively work with HealthEngine to promote HealthEngine and the Website to its existing patients and clients so that those patients and clients may become Visitors;
  9. encourage patient and client use of the Website and the Services by provision 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;
  10. ensure that only the Users are permitted to access the Services. 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;
  11. not use the Appointment Plugin to arrange appointments with non-Users;
  12. promptly contact directly each Visitor upon receiving a booking or query (whether through the Website or Appointment Plugin), and as otherwise necessary for the Practice Customer to provide services to the Visitor;
  13. notify HealthEngine of any complaints relating to the Services received by the Practice Customer;
  14. maintain all insurance policies which a reasonably prudent healthcare provider in the Practice Customer's position would maintain, 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;
  15. maintain as confidential and 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);
  16. maintain as confidential and keep secure any passwords or other security credentials relating to the Services;
  17. 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 Claims that result from the Practice Customer's non-compliance with this provision;
  18. notify HealthEngine immediately of any authorised access of, or data breach relating to, the Services;
  19. comply with all applicable laws in relation to its use of the Services;
  20. use the Appointment Plugin in accordance with HealthEngine's guidelines or instructions;
  21. not use the Services to:
    1. post, publish or transmit any Content 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;
    2. encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
    3. harm children in any way;
    4. impersonate a person or entity or falsely state their affiliation with a person or entity;
    5. 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
    6. 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;
  22. not use the Services to advertise or perform any commercial or other form of solicitation that is not authorised by HealthEngine, including by making the Appointment Plugin available on any websites, mobile apps or otherwise unless they are proprietary (specific) to the Practice Customer or have otherwise been approved by HealthEngine in writing; and
  23. not treat patients who book appointments through the Services differently to its other patients including by charging them additional fees.

4. The Services

  1. HealthEngine may make such changes to the Services, the Website, the Appointment Plugin, 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. Where HealthEngine makes such changes which it reasonably believes may be detrimental to the Practice Customer, it will provide the Practice Customer with at least 30 days prior notice of the change, and if the Practice Customer does not wish to continue to use the Services, then it may terminate this Agreement in accordance with clause 9(a).
  2. HealthEngine may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services.
  3. The Services do not include any support required to integrate the Services with the Practice Customer's PMS.
  4. The Practice Customer is solely responsible for its provision of healthcare and managing its relationship with its patients (including a Visitor) including the collection of fees from those patients. HealthEngine is not a party to any dealings, arrangements, agreements or similar between the Practice Customer and the Visitor and the Practice Customer must not purport to bind HealthEngine in any way.
  5. Where the Services include Practice website Development and Build:
    1. The Practice Customer must give existing domain access (if applicable) to enable HealthEngine to build the website under the desired domain name. If needing to purchase a new domain name, the Practice agrees to pay any applicable fees and costs.
    2. The Practice Customer agrees to pay any ongoing HealthEngine hosting fees.
    3. If wanting to transfer the website to a host other than HealthEngine, the Practice Customer must provide HealthEngine a minimum of 30 days prior written notice, which will serve as notice of termination of the hosting services and any related obligations on HealthEngine.
    4. Reasonable levels of technical support are included in the applicable fees. However, if HealthEngine in its sole discretion determines that technical support requested exceeds reasonable levels, HealthEngine may elect to charge for additional technical support at the rate of $150/hour + GST. The Practice Customer will be informed before any such fees are incurred.

5. Intellectual Property

  1. All intellectual property rights in the Services, and in all HealthEngine know how, software, materials and methodologies used in providing or incorporated into the Services, the Appointment Plugin or the Website (collectively the "IPR") remain vested in HealthEngine, and the Practice Customer has no rights in relation to that IPR.
  2. The Practice Customer must use the Services solely for the purposes set out in this Agreement and not make any commercial use of the Services, including by reselling the Services to any party.
  3. The Practice Customer must not to copy, alter, modify, reproduce, reverse-engineer, derive or develop the Services, any software used by HealthEngine to provide the Services or any IPR or any part of them or attempt to do any of those things.
  4. 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. The Practice Customer grants HealthEngine a licence to use, reproduce, publish, modify, translate, adapt and otherwise exploit the Content for the purpose of providing the Services.

6. Fees and Invoices

  1. The Fees payable for the Services are set out in the Form (or are as agreed separately in writing with HealthEngine), as may be amended from time to time in accordance with clause 13(g).
  2. Unless otherwise agreed in writing with HealthEngine, all Subscription Fees are payable monthly in advance from commencement of the Agreement. HealthEngine will provide the Practice Customer with an invoice for the Subscription Fees on a monthly basis.
  3. Unless otherwise agreed in writing with HealthEngine, Transaction Fees are payable monthly in arrears from commencement of the Agreement. HealthEngine will provide the Practice Customer with an invoice for Transaction Fees monthly basis.
  4. If a trial period has been agreed in the Form, 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.
  5. 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, or as otherwise agreed in writing with HealthEngine.
  6. 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.
  7. 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 deduction from the card with any Fees when due and payable.
  8. In no circumstances shall the Practice Customer make any deduction or withhold payment for any reason whatsoever.
  9. If any payment is not made by the due date HealthEngine may:
    1. suspend the Services and the Practice Customer's use of the Appointment Plugin or its Account; and/or
    2. cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered to the Practice Customer by HealthEngine.
  10. All Fees stated are exclusive of GST and other applicable taxes, which must be paid by the Practice Customer.
  11. 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.
  12. the Practice Customer must submit any credit requests (for example those relating to a patient not attending an appointment or an Existing Patient booking as a new patient) within 3 days of the applicable booking or event, failing which HealthEngine will be under no obligation to provide a credit to the Practice Customer. For the purposes of this provision, an Existing Patient is a patient who has been treated by the Practice Customer no more than 3 years prior to the applicable appointment.
  13. In respect of fees and costs relating to a Search Marketing campaign, the Practice Customer acknowledges that:
    1. not all of the monthly budget is allocated directly to media services to HealthEngine Search Partners (e.g. Google AdWords);
    2. after deduction of HealthEngine service fees, the target percentage spent on media services is 70% of the total campaign monthly budget; and
    3. that this is an estimate only and actual media services spend will vary from campaign to campaign.

7. Publicity and Third Party Use and Disclosure

The Practice Customer agrees 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 knowingly use any Practitioner Content for promotion or marketing purposes in a way which would detract from the good name and reputation of the Practice Customer. The Practice Customer must obtain any necessary consents or approvals for such use of the Practitioner Content. 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, and will not be liable 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

  1. This Agreement commences on the date that the Form is signed on behalf of both parties.
  2. If a trial period is applicable, then either party may terminate this Agreement immediately upon notice during the trial period.
  3. If there is no trial period, or a trial period has concluded without either party terminating this Agreement, then either party may terminate this Agreement by providing at least 30 days notice to the other party, save for a Featured Listing or Search Marketing campaign if included in the Services, which must run for a minimum period of 6 months from the date of activation of the Featured Listing or Search Marketing campaign.
  4. Notices of termination under paragraphs (b) and (c) above can only be accepted in writing from the practice owner or person whose credit card and authority was used to authorise payment.
  5. If HealthEngine terminates the Practice Customer Agreement pursuant to clause 9(a), then it will provide a refund of any pre-paid Fees for which Services will not be provided by HealthEngine.
  6. In addition, HealthEngine may immediately upon notice in writing to a Practice Customer terminate this Agreement in the event that a Practice Customer:
    1. materially breaches this Agreement;
    2. 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;
    3. loses its relevant regulatory or other licence or authority to deliver the relevant healthcare services; or
    4. 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

  1. The Practice Customer acknowledges and agrees that HealthEngine is not a healthcare provider and is not liable in any respect for the care of a Visitor. As between the Practice Customer and HealthEngine, the Practice Customer is solely responsible for the care of its Visitors.
  2. The Practice Customer indemnifies HealthEngine against any and all Claims arising from or related to any treatment provided (or which was failed to be provided) by the Practice Customer to a Visitor or arising from or related to the Practice Customer's wrongful use of the Services.
  3. 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 unlawfully restrict the application of such laws.
  4. Subject to paragraph (c) above, HealthEngine excludes to the fullest extent permitted by law all rights, remedies, guarantees, conditions and warranties of or in favour of any Practice Customer or third party implied or imposed in respect of goods and services related to the Practice Customer's use of the Services and in particular:
    1. HealthEngine does not warrant that provision of the Services will be free of delays, uninterrupted, error free or free of viruses or bugs;
    2. HealthEngine will have no responsibility or liability for any loss or damage that a Practice Customer incurs as a result of any failure to backup data stored on its own systems, including data of appointments made and Visitor records; and
    3. 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.
  5. If any term, condition, warranty or guarantee is implied or imposed 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,warranty or guarantee will be limited as determined by HealthEngine in its sole discretion to:
    1. 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
    2. in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
  6. To the fullest extent permitted by law, HealthEngine:
    1. excludes any and all liability for any consequential or indirect loss, or any loss of opportunity, loss of goodwill or business reputation; and
    2. limits its aggregate liability for all Claims arising under or in connection with this Agreement or the Services in in each successive 12 month period from the date of commencement of this Agreement, to the Fees paid under this Agreement during that 12 month period,

whether for breach of contract, in tort (including without limitation negligence), under statute or on any other basis.

11. Privacy Policy and Website use

  1. The Practice Customer agrees that HealthEngine has made them aware of HealthEngine's practices and policies related to the collection, use and storage of personal data, further detail of which can be found in HealthEngine's Privacy Policy set out at https://healthengine.com.au/privacy. The Practice Customer consents to the use, in accordance with HealthEngine's Privacy Policy, of any personal information provided to HealthEngine.
  2. The use of the Website by the Practice Customer is subject to 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

  1. 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.
  2. 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.
  3. Nothing in this Clause 12 applies to an obligation to pay money.

13. General

  1. 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):
    1. the Form;
    2. these T&Cs; and
    3. any other document referenced or comprised in the Agreement.
  2. 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.
  3. 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.
  4. 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.
  5. Except as otherwise agreed in writing this 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.
  6. The Practice Customer Agreement will be governed by and construed in accordance with the laws of the jurisdiction in which it operates (or, if that is more than one jurisdiction, the State of Western Australia) and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
  7. HealthEngine may, at any time, amend the Practice Customer Agreement, including, but not limited to, adding or amending any fees and charges for the Services (Variation of Terms). HealthEngine will provide the Practice Customer with at least 30 days' notice of any Variation of Terms. A Variation of Terms takes effect on the date set out in the notice given by HealthEngine. If the Practice Customer does not wish to continue to receive the Services after the Variation of Terms, then it may terminate this Agreement in accordance with clause 9. The Practice Customer's continued use of the Services or the Website after the effective date of the Variation of Terms shall be deemed to constitute acceptance by the member of such amendments. Any rights or liabilities arises prior to the effective date of any amendment to this Agreement will be unaffected by the Variation of Terms.
  8. If any provision of this Agreement for any reason is declared invalid, such declaration will not affect the validity of any remaining portion of the Agreement, which remaining portion will remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated.