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SaaS Software as a Service Terms & Conditions

MY HEALTH HUB – SOFTWARE AS A SERVICE TERMS AND CONDITIONS

1    My Health Hub  

(a)    Nutridesk Pty Ltd (ABN 66 082 390 896) (we or us) own the cloud-based My Health Hub, including all instructions in hard copy or electronic form and any update, modification or release of any part of that My Health Hub (Software) which is accessible at www.a8h.com.au (Site) or by downloading any application on a smart device developed by us in conjunction with the site (App). In these Terms, references to Site include the App.
(b)    The Software is designed to house clinical information about patients (Clients) using the Activ8Health online marketplace (Platform) to purchase products, tests, or medical services (the Items).
(c)    The Platform connects Clients seeking the Items with select allied health professionals (Practitioners) by facilitating introductions between Practitioners and Clients.
(d)    A Client must provide access to a Practitioner via the Platform in order for the Practitioner to access the Client’s clinical information.
(e)    The Client is responsible for uploading their clinical information and updating such information to ensure that it is accurate, current and complete for Practitioners.
(f)    Practitioners treating a Client on the Platform can view the Client’s clinical information for the purposes of treating the Client.

2    Acceptance

(a)    These terms and conditions (Terms) apply to Clients and Practitioners accessing and/or using the Software and:
(1)    set out the terms and conditions upon which we agree to grant you a right to use the Software as a service, as described on the Site (Service); and
(2)    are binding on you from the date (Effective Date) on which we provide you with an account to enable you to access and use the Service (Account) until the date on which your Account is terminated in accordance with these Terms (Term).
(b)    Please read these Terms carefully and immediately terminate your Account if you do not agree to them.
(c)    By creating an Account and/or accessing and/or using the Service, you:
(1)    warrant to us that you have reviewed these Terms, including our Practitioner Terms and Conditions or Client Terms and Conditions (as applicable) and our Privacy Policy, available on the Site and you understand them;
(2)    warrant to us that you have the legal capacity to enter into a legally binding agreement;
(3)    warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Service, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service;
(4)    warrant to us that you have all hardware, software and services which are necessary to access and use the Service; and
(5)    agree to use the Service in accordance with these Terms.

3    Registration 

(a)    You will be required to create an Account with us for the Platform in order to access and use the Service. You must ensure that any personal information you give us when creating an Account is accurate, current and complete. All personal information that you give to us will be treated in accordance with our Privacy Policy.
(b)    When you create an Account, you will be required to choose a password. It is your responsibility to keep your Account details confidential. You are liable for all content posted and all activity on your Account, including purchases made using your Account details, and you must immediately notify us of any unauthorised use of your Account.
(c)    At our sole discretion, we may refuse to allow any person to create an Account.

4    Collection Notice

(a)    We collect personal information about you in order to enable you to access and use the Site, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.
(b)    We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide the Service to you.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
(c)    Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.
(d)    Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Service, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.

5    Licence

(a)    We grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable worldwide (excluding the United States of America including its territories and protectorates) licence to access and use the Service for your own personal purposes for the Term (Licence).
(b)    You agree that:
(1)    the Licence permits you to use the Service in accordance with the Service’s normal operating procedures; and
(2)    we reserve the right at any time and from time to time to: (i) refuse any request in relation to the Service that we deem inappropriate, unreasonable or illegal; and/or (ii) modify or discontinue, temporarily or permanently, access to the Service (or any part thereof) with notice.

6    Restrictions

(a)    You acknowledge and agree that these Terms incorporate by reference the terms of any acceptable use policy as set out on the Site or as provided to you from time to time.
(b)    You must not access or use the Service except as permitted by the Licence and you must not do, or omit to do, any act that would or might invalidate or be inconsistent with our intellectual property rights in the Service or Software. Without limiting the foregoing provisions, you must not:
(1)    resell, assign, transfer, distribute or provide others with access to the Service;
(2)    “frame”, “mirror” or serve any of the Service on any web server or other computer server over the Internet or any other network;
(3)    copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Service or Software (except as expressly permitted by the Copyright Act 1968 (Cth));
(4)    alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Service or Software;
(5)    use the Service in any way which is in breach of any applicable local, state, federal and international laws and regulations (Laws) or which infringes any person’s rights, including intellectual property rights;
(6)    use the Service in relation to crimes, including theft and fraud;
(7)    use the Service to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(8)    use the Service in any way that damages, interferes with or interrupts the supply of the Service;
(9)    use the Service if you reside in the United States of America including its territories and protectorates;
(10)    introduce malicious programs into our hardware and software or our hardware, software and services which are integrated and operate together, including our networks (Systems), including viruses, worms, trojan horses and e-mail bombs;
(11)    reveal your Account password to others or allow others to use your Account;
(12)    use the Service to make fraudulent offers of goods or services;
(13)    use the Service to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(14)    use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Service;
(15)    send any unsolicited email messages through or to users of the Service in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Service in breach of any person’s privacy (such as by way of identity theft or “phishing”);
(16)    use the Service to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers; or
(17)    solicit or entice away, any person or organisation that was our actual or prospective, client, employee, contractor, representative, agent, or developer during the Term.

7    Data (applicable to Clients) 

(a)    Licence: You grant us and our sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to (i) use, copy, back-up, process, transmit, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the information, documents and other data you provide to us and any content you upload or which we otherwise access in providing the Service (Data) and (ii) otherwise access, use or make reference to the Data or any intellectual property rights in the Data:
(1)    to supply the Service;
(2)    to test, enhance and otherwise modify the Service;
(3)    to develop other services; and
(4)    as reasonably required for the performance of our obligations under these Terms.
(b)    Limit: We make no guarantees regarding the maximum aggregate file size of your Data on the Service. If your bandwidth usage significantly exceeds the average band width usage of other customers (as determined solely by us), we may immediately suspend your Account until you can reduce your bandwidth consumption, or impose an appropriate fee commensurate with such excess usage.
(c)    General: You must, at all times, ensure the integrity of your Data and that your use of your Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) your Data and its transfer to and use by us as authorised by you under these Terms do not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
(d)    Sensitive Data: You will be required to submit to the Service patient, medical or other protected health information and other information subject to regulation or protection under specific laws such as the My Health Records Act 2012 (Cth), collectively, Sensitive Data). Notwithstanding any other provision to the contrary, we have no responsibility or liability for Sensitive Data and Practitioners and Clients must back-up Sensitive Data as required under the Practitioner Terms and Conditions and Client Terms and Conditions.
(e)    Removals: We have no obligation to monitor any content uploaded to the Service. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Service. We have no liability to you for removing your Data from the Service.
(f)    Security: We implement security procedures to help protect your Data from security attacks. However, you understand that use of the Service necessarily involves transmission of your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Data being lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third-party service providers or our hosting service/s.

8    Technical problems 

In case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need help, please check the support we provide as stated on our Site or failing that please email us at admin@a8h.com.au.

9    Your Responsibilities and Obligations 

You must, at your expense: 
(a)    provide us with all reasonable assistance and cooperation in order for us to supply the Service in an efficient and timely manner;
(b)    provide us and our personnel with reasonable access to your computing environment, including all Systems, information technology and telecommunications services (Computing Environment), if necessary for us to supply the Service;
(c)    ensure all information provided to us is kept up-to-date, current and complete and the email address you provide is valid and regularly checked; and
(d)    make any changes to your Computing Environment, such as system upgrades, that may be required to support the delivery and operation of any Service.

10    Payment

(a)    There is currently no fee to access and use the Software for Practitioners and Clients with Platform Accounts.
(b)    Practitioners and Clients will lose access to the Software once their Platform Account is terminated or cancelled.

11    Intellectual Property Rights

(a)    All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software and the Service) will at all times vest, or remain vested, in us.
(b)    You must not, without our prior written consent:
(1)    copy or use, in whole or in part, any of our intellectual property;
(2)    reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
(3)    breach any intellectual property rights connected with the Site, the Software or the Service, including (without limitation) altering or modifying any of our intellectual property; causing any of any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property.
(c)    This clause 11 will survive termination of your Account.

12    Indemnity and liability

(a)    Despite anything to the contrary, to the maximum extent permitted by the law:
(1)    our maximum aggregate liability arising from or in connection with these Terms (including the Service or the subject matter of these Terms) will be limited to $1.00; and
(2)    we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
(b)    Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with any of the following:
(1)    any injury or loss to any person;
(2)    failure or delay in providing the Service;
(3)    unavailability, outage or interruption to the Service or your Systems; or
(4)    breach of these Terms or any Laws,
where caused or contributed to by any:
(5)    event or circumstance beyond our reasonable control;
(6)    a fault or defect in your Computing Environment; or
(7)    act or omission of you, your related parties or a third-party service provider,
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Service.
(c)    Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL.  Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
(d)    You acknowledge and agree that:
(1)    you use the Service and any associated programs and files at your own risk;
(2)    the technical processing and transmission of the Service, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(3)    we may use third-party service providers to host the Service. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
(4)    the Service may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services;
(5)    we do not guarantee that any file or program available for download and/or execution from or via the Service is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
(6)    from time to time, we may make certain services and/or features available to you for use which are still in their beta stage (Beta Services); Beta Services have not been fully tested and are provided on an ‘as is’ basis; and, to the fullest extent permitted by Law, we make no representations, warranties or guarantees in relation to such Beta Services; and
(7)    we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
(e)    You must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Service or any breach of these Terms by you.
(f)    This clause 12 will survive termination of the Account.

13    Termination

(a)    We may, at any time and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the Service is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Service or other users, we may suspend or terminate your Account immediately without notice.

14    General

(a)    Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under these Terms due to an event or circumstance beyond its reasonable control (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations shall be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases.
(b)    Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
(c)    Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
(d)    Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
(e)    Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
(f)    Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
(g)    Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
(h)    Entire agreement: These Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
(i)    Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. We will notify you of any variations to our Terms. We recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them.
(j)    Governing law: These Terms are governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts.
(k)    The Service may be accessed in Australia and overseas. We make no representation that the Service complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Service from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Service.

For any questions, please contact us at:
Nutridesk Pty Ltd (ABN 66 082 390 896)
Email: info@a8h.com.au
Last update: 20 June 2018
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