Practice Cloud SaaS Terms & Conditions

IMPORTANT INFORMATION ABOUT NEGOTIATING A SUBSCRIPTION WITH US: Please note that we are happy to consider any reasonable amendments that you may wish to make to this Subscription before you enter into the Subscription. If you wish to propose any such amendments, please contact us. IMPORTANT INFORMATION ABOUT INDEMNITIES: These Terms & Conditions require you to provide indemnities to us at clauses 12.2 and 16.8(b). IMPORTANT INFORMATION ABOUT AUTOMATIC TRANSITION TO PAID SUBSCRIPTION AT THE CONCLUSION OF ANY TRIAL PERIOD: Clause 3.4 of these Terms & Conditions results in an automatic transition to a paid Subscription at the conclusion of any Trial Period, unless you notify us in accordance with clause 3.5 of these Terms & Conditions.

Background

Welcome to Practice Cloud! Practice Cloud is owned and operated by Pen CS Pty Ltd (ABN 75 606 033 112) of 301 Catherine Street, Leichhardt NSW 2040 (we, our, us). Our contact email address is practicecloud@pencs.com.au.

Operative Provisions

1. Our Subscription with You

1. You may only subscribe to Practice Cloud if you:

1. are at least 18 years of age;
2. agree to the Fees and Payment Terms; and
3. agree to be legally bound by and accept these Practice Cloud SaaS Terms & Conditions (Terms & Conditions).

2. When you subscribe to Practice Cloud, you enter into a legally binding contract with us (Subscription) comprising:

1. the Fees and Payments Terms;
2. the Service Levels; and
3. these Terms & Conditions.

3. This Subscription should be read in conjunction with our Privacy Policy (Privacy Policy).
4. If you do not agree to the Fees and Payment Terms and/or these Terms & Conditions, you must not, and cannot, subscribe to Practice Cloud, nor access or use Practice Cloud.
5. The Fees and Payment Terms are available from us on request. You can request the Fees and Payment Terms by completing our Enquiry Form.
6. If you subscribe to Practice Cloud, we will confirm the Fees and Payment Terms before your subscription is completed and then again by email to your nominated email address promptly after you have subscribed.
7. Each Subscription will commence on the later of:

1. the date of your acceptance of these Terms & Conditions; or
2. the date of our receipt of your first payment of the Fees in accordance with the Payment Terms,

(Commencement Date).

2. Software Right

1. By purchasing and subscribing to Practice Cloud, we grant to you, subject to the terms and conditions of this Subscription, a non-exclusive, non-transferable, non-sublicensable right to access and use Practice Cloud in accordance with the Implementation Plan and the Documentation (Software Right).
2. We undertake to use reasonable endeavours to host or procure the hosting of Practice Cloud. If Service Levels form part of the Subscription, then we will host or procure the hosting of Practice Cloud in accordance with the Service Levels.
3. The Software Right may, with our prior written consent, be extended to additional End Users, provided that any additional applicable Fee that we specify is paid to us before such use.

3. Practice Cloud Free Trial

1. This clause 3 will only apply if the Fees and Payment Terms provide initially for a Free Trial.
2. We grant to you, subject to the terms and conditions of this Subscription, for the Free Trial Period, a revocable, non-exclusive, non-transferable, non-sublicensable right for up to the Maximum Number of End Users to access and use Practice Cloud, solely for the purpose of evaluating Practice Cloud in order to determine whether you wish to subscribe to Practice Cloud beyond the Free Trial Period.
3. The Free Trial will commence on the date of your acceptance of these Terms & Conditions (Free Trial Commencement Date) and shall continue for the Free Trial Period.
4. Upon expiry of the Free Trial Period, the Free Trial will automatically transition to become a paid Subscription, at which time you must make your first payment of the Fees to us in accordance with the Payment Terms.
5. If you do wish for the Free Trial to automatically transition to become a paid Subscription, then you must notify us in writing that you wish to terminate this Subscription before the end of the Trial Period, in which case the Trial Period will not transition to become a paid Subscription, this Subscription will terminate at the end of the Trial Period and you must cease all use of Practice Cloud.    

4. Subscription Term

1. This Subscription shall commence on the Commencement Date and shall continue for a period of one (1) calendar month (Initial Term).
2. Upon expiry of the Initial Term, or the then current Renewal Term (as applicable), the Subscription will automatically extend on a month to month basis (each such month, a Renewal Term), until and unless either party notifies the other party in writing that it wishes to terminate the Subscription on 30 days’ notice, in which case if such notice is provided, the Subscription will continue for a further 30 days and will then terminate at the end of the then current Renewal Term.

5. Implementation Plan and Initial Training

1. We will provide you with written instructions for the implementation of Practice Cloud which includes:

1. a date by which we will aim for Practice Cloud to be Ready for Service;
2. a date by which we will make Initial Training Services in Practice Cloud available to you remotely for no additional charge; and
3. any other particulars of the implementation that we wish to include in the plan,

(the Implementation Plan).

2. Each party must use reasonable endeavours to comply with the Implementation Plan.
3. There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one or more of the following events occur:

1. you and we agree to a change to the Implementation Plan or any part of Practice Cloud;
2. a Force Majeure Event occurs that prevents a party from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan; and/or
3. an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.

4. For any extension of time the subject of clause 5.3:

1. we will negotiate with you an amended version of the Implementation Plan; and
2. we will provide you with a copy of the agreed amended Implementation Plan.

5. Any additional training in Practice Cloud required by you that we agree to provide will be provided by us at our then standard rates.

6. Documentation and Third Party Software

1. We will provide to you from time to time copies of the Documentation containing sufficient up-to-date information for the proper use of Practice Cloud. Such Documentation will be supplied in electronic form.
2. Where any of Practice Cloud includes Third Party Software, the Third Party Software will be subject to Third Party Licences, copies of which will be provided to you, and you agree to be bound to the relevant third parties by such Third Party Licences.
3. You must comply with the Third Party Licences and we may treat your breach of any Third Party Licence as a breach of the Subscription.
4. Any Open Source Software provided by us may be used according to the terms and conditions of the specific licence under which the relevant Open Source Software is distributed, but is provided "as is".

7. Change Control

1. You may, by giving written notice to us at any time during the Term, request a change to Practice Cloud.
2. We may (but are not obliged to):

1. prepare a Fee estimate for the implementation of the change at our standard rates then in force (if we offer to implement the changes on a time and materials basis);
2. prepare a written quote for the implementation of the change (if we offer to implement the change at a fixed price);
3. prepare a quote for any increase or decrease in the Fee; and/or
4. notify you of any effect that the requested change may have on the Implementation Plan.

3. You must inform us in writing of whether or not you wish the requested change to be made. No change will be implemented or deemed to have been agreed unless it is agreed by you and us in writing.
4. We specifically deny any implied or express representation that Practice Cloud will be fit to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with Practice Cloud.

8. Practice Cloud Maintenance Releases and New Versions

1. We will provide you with access to all Maintenance Releases in respect of Practice Cloud.
2. You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, any New Versions of Practice Cloud pursuant to this Subscription.
3. Any Maintenance Release and New Version of Practice Cloud supplied by us to you shall constitute Practice Cloud for the purposes of this Subscription.

9. General Mutual Obligations

1. Each party must provide all necessary cooperation and assistance reasonably required by the other party to comply with its obligations under this Subscription.
2. Each party must:

1. perform its obligations under this Subscription with all skill, care and diligence;
2. perform its obligations under this Subscription in a timely and efficient manner;
3. perform its obligations under this Subscription in accordance with Applicable Law, including Privacy Law;
4. not incur any obligation on behalf of the other party except with the prior written approval of the other party; and
5. upon request by the other party, meet to discuss this Subscription.

10. Your Obligations

1. You must ensure that any person that is an End User of Practice Cloud:

1. complies with all of Pen CS’ directions and policies (including any security policy), applicable Documentation and Applicable Law in the course of such access and/or use;
2. does not infringe or permit any person to infringe any Our IPR, or any IPR of our licensors;
3. does not provide its passwords or other access credentials for Practice Cloud to any other person; and
4. immediately notifies Pen CS of any unauthorised or suspected unauthorised use or disclosure of any access credentials for Practice Cloud.

2. You agree and acknowledge that you are responsible for provisioning all your End User’s accounts on Practice Cloud and for setting the End User permissions for access to Your Data via Practice Cloud, which includes sensitive financial and clinical information.  
3. You agree and acknowledge that the use of Practice Cloud is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which Practice Cloud operates.
4. The availability of Practice Cloud will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions.
5. You must:

1. ensure that you maintain a reliable internet connection for us to use to connect remotely to your Equipment where reasonably required by us to provide Practice Cloud;
2. not do anything, or allow any of your Personnel to do anything, that interferes with or prevents the proper functioning and operation of Practice Cloud; and
3. not remove, or allow any person to remove, any trade marks, copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to Practice Cloud.

11. Intellectual Property Rights

1. As between the parties, each party owns all rights, title and interest in its own Background IP.
2. As between you and us, we own all Intellectual Property Rights in:

1. all data (excluding Your Data), Documentation, any software, Source Code, Object Code, database and database structures that are incorporated into, installed on, or supplied in connection with Practice Cloud;
2. any modifications, improvements, inventions, discoveries, upgrades or updates to Practice Cloud (whether made or suggested by or on behalf of us, you or a third party);
3. all reports and other output (except to the extent that it comprises Your IPR) made available in or via Practice Cloud; and
4. any software tools, libraries, reports, configurations, Source Code, Object Code and reports that we develop at any time,

(together, Our IPR).

3. As between you and us, you own all Intellectual Property Rights in:

1. your Equipment;
2. your data in any form entered, inputted or uploaded into Practice Cloud (Your Data), and
3. any derivative work created or developed by or on behalf of you, by using, incorporating and/or referencing Practice Cloud,

(together, Your IPR).

4. You must not represent that you own any of Our IPR.
5. You must not, and must ensure that your End Users, and/or Personnel do not, directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR, nor authorise the commission of any act that would or might be inconsistent with Our IPR.
6. You hereby assign to us any and all IPR in all and any modifications, improvements, inventions, discoveries, upgrades, updates and comments that you or your End Users and/or Personnel make with respect to Practice Cloud and any requests for new features, that you and/or your Personnel may make or suggest regarding them (each, an Improvement Suggestion).
7. Each such Improvement Suggestion becomes the sole and exclusive property of Pen CS upon assignment to us. The assignment is effective when you, your End Users and/or Personnel make or suggest the Improvement Suggestion including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your End Users and/or Personnel (as applicable), and on request by us, supply to us, an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any Improvement Suggestion by us or any third parties that we authorise.
8. You hereby grant to us, a non-exclusive, transferable, assignable and sub-licensable worldwide, irrevocable, perpetual licence to collect, record, organise, structure, use, adapt, modify, disclose, combine, erase, destroy, and exploit Your IPR:

1. to perform our obligations under this Subscription;
2. to comply with any applicable legal obligation; and
3. in deidentified form, to develop and improve our products and services.

9. You represent and warrant that:

1. your End Users and Personnel are fully entitled (and where applicable, licensed) to disclose to us all Your Data;
2. all Your Data is accurate and kept up-to-date; and
3. the exercising of our rights under the licence granted pursuant to clause 11.8 by us and/or our Personnel does not and will not breach any Applicable Law or any person’s rights; and
4. you have obtained all necessary consents, approvals and authorisations required by Applicable Law for us and/or Pen CS’ Personnel to exercise our rights under the licence granted pursuant to clause 11.8.

12. Acceptable Use Policy

1. You must not, and must not permit your End Users or Personnel to, in relation to Practice Cloud:

1. copy, alter, modify, tamper with, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance Practice Cloud;
2. disassemble, modify, adapt, reverse translate, make error corrections to or in any other manner decode Practice Cloud in whole or in part, except as expressly permitted by Applicable Law without our prior written consent;
3. act in a manner that in any way breaches Applicable Laws or violates all or any legal rights of any person in any jurisdiction (including any person's privacy, such as by way of identity theft or "phishing");
4. license, sublicense, resell, assign, transfer, distribute, or provide others with access to, Practice Cloud without our written consent;
5. develop or manufacture any competing product or service;
6. “frame”, “mirror” or serve Practice Cloud on any web server or other computer server over the Internet or any other network;
7. infringe Our IPR or any third party’s IPR;
8. store, transmit, distribute or introduce malicious programs into Pen CS’ systems, network or servers (e.g. viruses, worms, trojan horses, e-mail bombs);
9. make fraudulent offers of goods or services;
10. create derivative works from or any other material including, incorporating, using or adding to any of Our IPR;
11. carry out security breaches or disruptions of network communication (security breaches include, accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes);
12. use Practice Cloud in any way that causes damage or injury to any person or property;
13. execute any form of network monitoring which will intercept data not intended for you; and
14. circumvent user authentication or security of any of Pen CS’ hosts, networks or accounts or those of Pen CS’ customers or Third Party Providers,
    (together, the Acceptable Use Policy).

2. You must indemnify us from and against all and any loss or damage that we suffer or incur as a result of any breach of the Acceptable Use Policy by you, your End Users and/or Personnel.
3. You must promptly notify us if you become aware that:

1. any person has breached, or is likely to breach, the Acceptable Use Policy; and
2. if any person alleges that Practice Cloud breaches any third party IPR or other rights,

and fully cooperate with us in connection with any such claims. You agree and will ensure that:

3. Pen CS will have full control over any action and proceedings that it may wish to commence or pursue in connection with any of its IPR; and
4. you will not take any action or step (including in any proceedings) in connection with Our IPR (including by challenging Our IPR) in Practice Cloud.

13. Warranties and Guarantees

1. The goods and services supplied under this Subscription may come with non-excludable guarantees which are regulated by the Australian Consumer Law (each, a Non-Excludable Guarantee). The extent of the Non-Excludable Guarantees depend on whether you are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended.
2. If the goods or services supplied under this Subscription are subject to a Non-Excludable Guarantee and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, we limit our liability for breach of any such Non-Excludable Guarantee (except in respect of a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law), in respect of each of the goods and services, where it is fair and reasonable to do so, at our option, to one or more of the following:

1. if the breach relates to goods:

1. the replacement of the goods or the supply of equivalent goods;
2. the repair of such goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired; and

2. if the breach relates to services:

1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.

3. Subject to any Non-Excludable Guarantees, we do not warrant or guarantee that Practice Cloud will be:

1. uninterrupted or error-free, free from fault or external intrusion;
2. fit for any purpose or have any specific quality, performance of compatibility; or
3. suitable for or will meet your requirements.

4. You must ensure that Practice Cloud is suitable for your intended use, needs and purposes.
5. The output of Practice Cloud (including any report generated from any of Your Data and/or Practice Cloud) does not and shall not constitute our advice, including medical, health, legal or any other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on the output that you obtain from Practice Cloud. You must not represent (either expressly or implied) that the output of Practice Cloud is or may constitute our advice.
6. We are not liable for any failure to perform, supply or deliver Practice Cloud that was caused by any breach of this Subscription by you, your End Users and/or Personnel.
7. Other than Non-Excludable Guarantees, all conditions, warranties and guarantees implied in this Subscription are excluded, to the extent possible under Applicable Law.

14. Liability

1. Neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of data or loss of savings.
2. For loss or damage that is not otherwise excluded by this Subscription, each party’s liability for all such loss and damage is capped, in the aggregate, to an amount equivalent to 3xFees paid under this Subscription as at the date of the last claim.
3. We do not provide data backup services. Data loss and corruption can occur, even though we take precautions to ensure it doesn’t occur. In the unfortunate event of any loss, destruction, corruption or damage to any of Your Data that is stored in Practice Cloud, subject to any Non-Excludable Guarantees:

1. your sole and exclusive remedy against us is to request that we use reasonable endeavours to restore Your Data that has been lost from the latest back-up that we can access; and
2. we are not liable for any such loss, destruction, alteration, corruption or damage, or for any unauthorised access or disclosure, to Your Data except to the extent it was caused or contributed to by our negligent act, wilful misconduct or breach of the Subscription.

4. We are not liable for any loss or damage caused by Practice Cloud due to any Force Majeure Event.
5. We may in our sole discretion, vary Practice Cloud without notice at any time or from time to time, provided that such variation does not have a material adverse effect on the performance of, or remove functionality of, Practice Cloud, and would not result in Practice Cloud becoming incompatible with any of your other products or services.
6. We are not responsible or liable for ensuring that your Equipment is compatible or interoperable with Practice Cloud.
7. Notwithstanding any other provision of this Subscription, nothing limits a Party’s liability for any breach of clauses 11, 12, 13, 15 and 16 of this Subscription.

15. Confidentiality

1. Each party (receiving party) agrees and acknowledges that it may receive the Confidential Information of the other party (disclosing party) during the Term of this Subscription.
2. The receiving party may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to:

1. exercise its rights (including by exercising its rights under any licence granted to it under this Subscription);
2. perform its obligations under the Subscription; and
3. comply with Applicable Law.

3. The receiving party agrees and acknowledges that the Confidential Information of the disclosing party will be received and held by the receiving party in strict confidence and will not be disclosed by the receiving party, except:

1. with the prior written consent of the disclosing party;
2. where disclosed to the directors, officers, employees, agents and/or professional advisors of the receiving party on a confidential basis;
3. as required by the rules of any stock exchange; or
4. as required by a court of competent jurisdiction, and then, only to the extent required, and provided that the receiving party promptly notifies the disclosing party of such requirement of disclosure and provides full particulars to the disclosing party of the proposed disclosure.

16. Privacy

4. In this clause 16, the following definitions apply:

5. APP: an Australian Privacy Principle as defined in the Privacy Act.

6. APP Entity: an APP Entity as that term is defined in the Privacy Act.

7. Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information we have collected, held, used or disclosed in the course of or relating to this Subscription.

8. Eligible Data Breach: has the meaning given to that term in the Privacy Act, occurring on or after 22 February 2018.

9. Investigation: means the investigation at 16.6(c).

10. Personal Information: means any Personal Information, including Health Information (as those terms are defined in the applicable Privacy Law) that we collect, hold, use or disclose in the course of performing our obligations under this Subscription.

11. Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.
12. Privacy Law: all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act, the Health Records and Information Privacy Act 2002 (NSW) and the Health Records Act 2001 (Vic).

5. We warrant that we and our Personnel will comply with and will continue to comply with the Privacy Act and all other applicable Privacy Law.

6. You warrant that you, your End Users and your Personnel comply with and will continue to comply with the Privacy Act and all other applicable Privacy Law.

7. We must:

13. handle all Personal Information in an open and transparent process and in accordance with our Privacy Policy to the extent that the policy is not inconsistent with the requirements of this clause 16 or this Subscription;

14. only use Personal Information for the purpose of performing our obligations under this Subscription;

15. comply with any reasonable directions given by you relating to:

3. Personal Information to the extent that they are not inconsistent with the requirements of this clause 16; and

4. a Data Incident, Investigation or Eligible Data Breach;

16. not disclose Personal Information to any third party without your prior written consent or as required under Applicable Law;

17. ensure that any of Pen CS’ Personnel who are required to access or handle Personal Information are made aware of the obligations set out in this clause 16;

18. protect Personal Information in our possession or control from:

5. misuse, interference and loss; and

6. unauthorised access, modification or disclosure;

19. ensure that Personal Information is only made available to Pen CS’ Personnel on a need-to-know basis as necessary for our performance of our obligations under this Subscription;

20. promptly notify you in writing if we become aware of our or any third party's actual or possible:

7. breach of any of the obligations in this clause 16; or

8. misuse or loss of Personal Information,

whether by us or any third party;

21. anonymise, return, de-identify or destroy Personal Information (except as required by Applicable Law) at any time as directed in writing by you, and otherwise on the termination or expiry of this Subscription;

22. notify you immediately in writing if we become aware of any:

9. request regarding access to, or correction of, any Personal Information;

10. any complaint about the handling of Personal Information;

11. any complaint made to us about our handling of Personal Information generally or beyond the scope of this Subscription; and

12. disclosure of Personal Information required under Applicable Law; and

23. not disclose Personal Information to a person who is not in Australia without your express written consent.

8. You warrant that you have:

24. made all necessary notifications required by APP 5, on behalf of yourself and us; and

25. obtained all necessary consents required by APP 6,

in respect of the individuals whose Personal Information you are disclosing to us in the course of this Subscription to enable us to lawfully use the Personal Information and perform our obligations in accordance with this Subscription.

9. In addition to our obligations in this clause 16, we also commit to take each of the following actions if we become aware, or there are reasonable grounds to suspect, that a Data Incident has occurred:

26. take steps to resolve the Data Incident and prevent any further serious harm to affected individuals;

27. immediately notify you in writing stating:

13. the nature and details of the Data Incident;

14. the specific Personal Information affected;

15. the actions taken by us including those required at clause 16.6(a); and

16. the recommended next steps for each of the parties and the affected individuals;

28. identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident;

29. engage in regular open and good faith discussions with you regarding:

17. the conduct and outcomes of the Investigation;

18. our ongoing actions to contain and resolve the Data Incident and prevent any further serious harm to affected individuals at clause 16.6(a);

19. in the case of an Eligible Data Breach, whether we or you will make the relevant notifications under the Privacy Act; and whether and to what extent any public or media statements will be made (in each case, your decision is to be final); and

20. where we are making the relevant notifications referred to in paragraph (iii), we must submit the notifications to you for approval before they are made (such approval to be given promptly and not to be unreasonably withheld).

10. Each party will ensure that its Personnel who are required to handle Personal Information in the course of this Subscription are made aware of the obligations of that party in this clause 16.

11. You:

1. acknowledge we are reliant on you for direction as to the extent to which we are entitled to use Personal Information disclosed to us in the course of and for the purpose of this Subscription; and
2. will indemnify us for any claim brought by any third party in connection with any act or omission by us in relation to a third party's Personal Information to the extent that such act or omission resulted from your instructions or a breach by you of your obligations or warranties in this clause 16 (and/or where any such warranty was not true when given) and all associated losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered or incurred by us.

12. Except to the extent caused or contributed to by your negligent act, wilful misconduct or breach of this Subscription, we will indemnify you against any losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered or incurred by you arising out of or in connection with any breach by us of our obligations in this clause 16.

17. Support and Maintenance

1. We will provide support and maintenance services to you in respect of Practice Cloud in accordance with any Service Levels that form part of the Subscription.  
2. Any support and maintenance services in respect of Practice Cloud in excess of any Service Levels are not within the scope of the Subscription.

18. Fees

1. We will invoice you for the Fees in accordance with the Payment Terms.
2. Following receipt of a valid tax invoice from us, you will pay to us an amount equal to the Fees in accordance with the Payment Terms.
3. A valid tax invoice issued by us to you is a tax invoice that clearly sets out:

1. the Fees;
2. the invoice date;
3. the period to which the invoice relates;
4. our name, ABN, address and nominated bank account details for payment;
5. any other information reasonably required by you; and
6. any other information required under Applicable Law to be a valid tax invoice.

4. Except as otherwise expressly agreed in writing, all Fees specified in the Schedule are subject to an annual increase on each anniversary of the Commencement Date (Fee Increase). The Fee Increase shall be limited to the greater of:

1. CPI; or
2. 4%.

5. If you fail to make any payment (including the Fees) due to us under this Subscription by the due date for payment in accordance with the Payment Terms, then, without limiting any of our other rights and remedies:

1. you shall pay interest on the overdue amount at a rate equal to 2% above the current overdraft rate that we have with our principal banker from time to time;
2. such interest shall compound daily from the due date until actual payment of the overdue amount, whether before or after judgment and you shall pay the interest together with the overdue amount upon demand by us; and
3. we may suspend performance of our obligations under this Subscription until such time as we receive payment of the overdue amount.

19. GST

1. Words used in this clause 19 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
2. Unless expressly stated otherwise, the consideration for any supply under or in connection with this Subscription is exclusive of GST.
3. To the extent that any supply made under or in connection with this Subscription is a taxable supply (other than any supply made under another Subscription that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this Subscription for that supply plus an amount (additional amount) equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of the supply.
4. The recipient must pay the additional amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
5. Whenever an adjustment event occurs in relation to any taxable supply to which clause 19.3 applies:

the supplier must determine the amount of the GST component of the consideration payable; andif the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

20. Insurance

1. We shall, at our own cost and expense, obtain and maintain during the term of this Subscription and for three (3) years thereafter, the following insurances for all and any claims arising in connection with the performance of this Subscription:

1. Workers compensation insurance covering liability for your employees;
2. public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim; and
3. cyber liability and privacy protection insurance in the amount of at least five million dollars ($5,000,000).

21. Termination

1. Each party may on fourteen (14) days’ notice terminate this Subscription if the other party (the defaulting party) is in material breach of this Subscription and the breach is not capable of remedy, or where the breach is capable of remedy and the defaulting party fails to remedy the breach within fourteen (14) days of notice or by any other deadline agreed between the parties.
2. Each party may terminate this Subscription by notice to the other party if the other party suffers an Insolvency Event except where such termination would contravene the Corporations Act 2001 (Cth).
3. If this Subscription is terminated or expires:

1. each party (the first party) must, at the option of the other party, destroy or return all Confidential Information of the other party in its possession or control to the other party;
2. you may download any or all of Your Data, which will be available for a period of 30 days after the effective date of termination or expiry (as applicable);
3. we shall immediately cease to have any further obligation to deliver or supply Practice Cloud;
4. any licenses and rights granted by us to you under this Subscription will immediately terminate;
5. you must pay all monies payable, due for payment or owing to us under the Subscription, including any Fees due.

4. Termination does not affect any accrued rights of either party.

22. Dispute Resolution

1. Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced by either party to this Subscription against the other party, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this Subscription (including any dispute as to the validity, breach or termination of this Subscription, or as to any claim in tort, in equity or pursuant to any statute):

1. notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party to this Subscription specifying the nature of the dispute;
2. upon the other party’s receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute;
3. if within ten (10) Business Days of receipt of the notice of dispute, the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to the Resolution Institute, (ACN 008 651 232; Suite 602, Level 6, Tower B, Zenith Centre, 821-843 Pacific Highway, Chatswood NSW 2067); email: infoaus@resolution.institute; telephone: +61 2 9251 3366 or 1800 651 650, for facilitation of a mediation in accordance with the Resolution Institute's Mediation Rules.
4. the parties must co-operate with the Resolution Institute as facilitator;
5. if within ten (10) Business Days after referral of the dispute to the Resolution Institute the parties have not agreed upon the mediator or other relevant particular, the mediator and any other relevant particular will be determined in accordance with the Resolution Institute’s Mediation Rules.

2. This clause 22 will remain operative after this Subscription has been performed and notwithstanding its termination.

23. Notices

1. A notice under this Subscription shall be delivered by hand or sent by post or email, using the party’s address:

1. specified in the Background section (at the beginning of these Practice Cloud SaaS Terms & Conditions), for us; and
2. the contact details that you specify before you subscribe to Practice Cloud, for you.

2. Any notice issued by hand shall be deemed delivered upon delivery.
3. Any notice issued by post shall be deemed delivered six (6) Business Days after posting if posted domestically, or ten (10) Business Days after posting if posted internationally.
4. Any notice issued via email shall be deemed to be delivered upon the sender receiving a read or delivery receipt or reply to the email.
5. Each party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 23.

24. General

1. This Subscription, including the Fees and Payment Terms, may only be amended by a written document signed by the parties.
2. A party may not assign, transfer or novate its rights or obligations under this Subscription without the prior written consent of the other party, except in connection with a merger, sale or acquisition.
3. If any provision of this Subscription is deemed invalid by a court of competent jurisdiction, the remainder of this Subscription shall remain enforceable.
4. This Subscription does not create any relationship of partnership, joint venture, or employer and employee or otherwise.
5. This Subscription constitutes the entire agreement between the parties regarding its subject matter and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.
6. This Subscription will be interpreted in accordance with the laws in force in New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts situated in New South Wales with respect to any proceedings concerning this Subscription or its subject matter.

25. Definitions and Interpretation

1. In this Subscription, unless the context requires otherwise:

1. a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;
2. headings and underlinings are for convenience only and do not affect the construction of this Subscription;
3. a provision of this Subscription will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
4. currency or “$” refers to Australian dollars;
5. a reference to a statute or regulation includes amendments thereto;
6. a reference to time is to time in New South Wales;
7. a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
8. the words “such as”, “including”, “particularly” and similar expressions are not words of limitation and shall be interpreted as if the words “but not limited to” immediately followed them in each case; and
9. a reference to the singular incudes the plural and vice versa.

2. In this Subscription, the following words have the following meanings, unless the context requires otherwise:

Acceptable Use Policy has the meaning given to it in clause 12.1.

Applicable Law means any applicable legislation, regulation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, as updated from time to time.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Background IP means any Intellectual Property Rights owned or developed by a party prior to or independently of this Subscription.  

Business Days means any day from Monday to Friday, excluding public holidays in the State of New South Wales.

Confidential Information means, in respect of a disclosing party, all commercial, financial or technical information relating to the business and operations of the disclosing party disclosed by or on behalf of the disclosing party to the receiving party, whether orally or in writing and in whatever form, but excludes:

10. information that is independently developed, obtained or known by the receiving party, without reference to the Confidential Information of the disclosing party, as evidenced by contemporaneous documents;
11. information that is in the public domain, except where due to a breach of this Subscription or any obligation of confidence; and
12. Your Data.

CPI means the annual increase in the all groups CPI, Australia in the period commencing 12 months prior. 

Your Data has the meaning given to it in clause 11.3(b).

Documentation means any user manuals, notes, technical instructions and documentation issued to you by us in respect of Practice Cloud.

End User(s) means a person:

1. authorised by you to access and use Practice Cloud for your benefit; and
2. who has accepted the Practice Cloud Terms of Use.

Equipment means, in relation to a party, any of its equipment, systems, software, networks, servers, hardware, cabling, ports, switches and other ancillary equipment owned and/or operated by the party.

Fee(s) means the fees that we specify to you for Practice Cloud before you subscribe to it.

Fee Increase has the meaning given to it in 18.4.

Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God, or other circumstances beyond the reasonable control of a party.

Free Trial means a free trial of Practice Cloud for the Free Trial Period.

Free Trial Period means 30 consecutive days.

GST and GST Law have the respective meanings given to them by section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Health Information has the meaning given to that term in section 5 of the Health Records and Information Privacy Act 2002 (NSW) and section 3 of the Health Records Act 2001 (Vic).

Implementation Plan has the meaning given to it in clause 5.1.

Improvement Suggestion has the meaning given to in clause 11.6.

Initial Training Services means training in the use of Practice Cloud as set out in the Implementation Plan.

Insolvency Event means: (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency; (b) where the party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is unable to pay its debts as and when they fall due.

Intellectual Property Rights or IPR means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under Article 2 of the Convention Establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.

Maintenance Release means a release of Practice Cloud that corrects faults, adds functionality or otherwise upgrades Practice Cloud, but which does not constitute a New Version.

Maximum Number of End Users means the maximum number of your End Users permitted under your Subscription to Practice Cloud, as specified to you before you subscribe to it.

Mediation Rules are the Resolution Institute Mediation Rules 2016 (https://resolution.institute/Web/Public-In-Dispute/Rules-and-Regulations/RI-Mediation-Rules-2016.aspx).

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth).

New Version means any version of Practice Cloud which from time to time is marketed by us as a new version of Practice Cloud.

Non-Excludable Guarantee has the meaning given to it in clause 13.1.

Object Code means Source Code in compiled or binary form.

Open Source Licence means the applicable licence that governs Open Source Software.

Open Source Software means any software licensed under any form of Open Source Licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php).

Our IPR has the meaning given to it in clause 11.2.

Payment Terms means the payment terms we specify to you for Practice Cloud before you subscribe to it.

Personal Information has the meaning given to that term in the Privacy Act.

Personnel means a party’s officers, agents, employees, contractors, subcontractors and suppliers.

Practice Cloud means the SaaS offering owned and operated by us that is known by the name ‘Practice Cloud’.

Software Right has the meaning given in clause 2.1.

Practice Cloud Terms of Use means a document by that name provided by us.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy has the meaning given at clause 1.3.

Ready for Service means that we determine that Practice Cloud is ready for use in a live environment.

Renewal Term has the meaning given to it in clause 4.2.

Resolution Institute is the dispute resolution organisation that a party or parties will refer a dispute to under clause 22.1(c).

Service Levels means the service level agreement available.

Source Code means human readable computer code.

Term means the Initial Term and each applicable Renewal Term.

Third Party Licences means the standard licence terms and conditions provided by the relevant owners, licensors or distributors of the Third Party Software.

Third Party Provider means any of our third party suppliers, subcontractors and/or providers who provide any goods or services that we supply or resupply as part of Practice Cloud, or that we rely on to supply Practice Cloud.

Third Party Software means any part of Practice Cloud that we notify you is owned by any third party.

You, Your means the business entity that you specify to us in writing before subscribing that you have full power and authority to, and by this Subscription, bind your business entity to this Subscription.    

Your Data has the meaning given in clause 11.3(b).

Your IPR has the meaning given to it in clause 11.3.