1.1 Welcome to Collaborate. The Collaborate mobile application (the ‘App’) is owned and operated by Collaborate Clinic App (ABN 23 639 714 287) (‘Collaborate’).
1.2 The App is an easy to use subscription tool for clinics and practitioners to create custom questionnaire forms and collect data from patients using digital devices. Collaborate stores the forms complete with the data entry on the cloud as retrievable electronic health records that the clinic and practitioner can email or print. The App is used by clinics and practitioners to help reduce the waiting times of patients and to assist clinics and practitioners in collecting important patient information efficiently and securely.
(collectively our ‘Services’)
1.3 The App is offered to clinics and practitioners (‘Subscribers’) on a subscription basis. For clinics and practitioners to obtain access to our Services, the practitioner or clinic must have an active subscription and Subscriber account (‘Subscriber Account’) with Collaborate. Subscriptions can be purchased as an In-App Purchase (‘IAP’) through the ITunes Store or Google Play Store.
1.5 Collaborate may update these Terms from time to time without notice. Any changes to these Terms will be effective from the date published on our App.
1.6 By using the App, you agree that you are bound by these Terms. If you do not agree to these Terms you must not use, download or install the App.
2. SUBSCRIBER REGISTRATION AND ACCEPTANCE OF TERMS
2.2 As part of the registration process for our Services, you may create only one Subscriber Account and must provide current, complete and accurate identification, and other information required during the registration process (some of which is not mandatory), including but not limited to:
(a) name (personal or business or company);
(c) phone number;
(d) practitioner registration number (where applicable);
(e) a valid email address;
(e) other information as applicable to set up and administer your Subscriber Account to access the Services.
By visiting, registering for, or using the App and Services, you agree that we may send you direct communications to the email address you provide.
2.3 If your Registration Data changes, you must promptly update your Subscriber Account to reflect those changes.
2.4 As a Subscriber of the App, you agree that:
(a) the Subscriber Account is personal to you or your business or company, depending on the subscription purchased;
(b) you are solely responsible for maintaining the confidentiality of your Subscriber Account and the secrecy of your Subscriber ID and password (“Login Details”);
(c) you must not authorise or permit anyone else to access your Subscriber Account by using your Login Details;
(d) you must not impersonate, misrepresent your identity or imitate any person when registering for a Subscriber Account;
(e) if you think your Registration Data or Subscriber Account has been compromised in any way including as to your Login Details, you should contact us immediately;
(f) your access to and use of the App and Services is non-transferable;
(g) you will use the App and Services only for purposes permitted by the Terms;
(h) we may make changes to the Services from to time to time without prior notice;
(i) you will abide by any applicable law, regulation or generally accepted practices or guidelines related to the Services in the relevant jurisdictions.
2.5 By subscribing to our Services, you warrant that:
(a) you are legally capable of entering into contracts; and
(b) you are at least 18 years old; and
(c) if you are using our Services on behalf of another person or legal entity that has joined as a Subscriber (e.g. a clinic or practice) that you are authorised to access our App and Services and that all relevant consents have been obtained to use our Services, including the purchase of the relevant subscription.
2.6 Collaborate reserves the right to deny anyone access to a Subscriber Account at any time for breach of these Terms.
3. SUBSCRIPTION PAYMENTS
3.1 To validate your subscription, you must have a registered Subscriber Account. Subscriptions are valid for the entire subscription period (‘Subscription Period’). The Subscription Period will vary according to the subscription purchased on the App.
3.2 Subscriptions are limited to the maximum number of forms that are available to Subscriber Accounts. Additional forms may be purchased if required by a Subscriber through the Google Pay Store or iTunes Store as an additional IAP.
3.3 Subscriptions will be automatically renewed according to the existing Subscription Period assigned to a Subscriber account. Subscriptions are charged to you on a recurring basis without further authorisation from you unless you have terminated your subscription prior to renewal and in accordance with any applicable IAP terms and conditions as provided through the Google Play Store or the iTunes Store.
3.4 When a Subscriber purchases a subscription as an IAP through an applicable platform, such as the Google Play Store or iTunes Store, your subscription payment will be subject to those platforms’ terms and conditions. It is your responsibility to ensure you have read and accept those platforms’ terms and conditions before purchasing any subscription or other items associated with the App.
3.5 Your order for a subscription will represent an offer to us from you to obtain a limited license for the use of the Services that is accepted by us when we make the Services available in your Subscriber Account or debit your credit card or accept payment from you through a third-party payment gateway provider, whichever comes first provided such payment has been cleared.
3.6 All subscription purchases are final and not refundable, transferable or exchangeable, except where otherwise required by law, or pursuant to these Terms.
3.7 If there are payment failures due to insufficient funds, incorrect or outdated payment information, Collaborate reserves the right to:
(a) recover payment and deny a Subscriber access to our Services;
(b) cancel or suspend a Subscriber Account if we are unable to process the fees for our Services; or
(c) charge interest at a rate of 1.5% per month on the amount due.
3.8 All subscription payments are in Australian Dollars (AUD). Collaborate will be entitled to add on GST for the supply of its Services in Australia.
3.10 The Services delivered to the Subscriber Account is exclusive and personal to the individual Subscriber or the business or company Subscriber is employed by. Subscribers must only permit authorised persons to use any of the Services that Collaboration delivers to the Subscriber Account under these Terms.
3.11 We may suspend or terminate a Subscriber Account if any misuse of fraudulent activity is detected.
3.12 Subscriber Accounts are not transferrable and are not redeemable for cash. Access to the Services will be disabled when Subscriber Account is suspended, terminated or Subscriber subscription ends.
4. REFUND POLICY
4.1 Except as required by law, any subscriptions purchased by you are final and non-refundable.
4.2 Collaborate will process refunds in accordance with the Australian Consumer Law.
4.3 Should you wish to obtain a refund for a subscription or any part of the Services, you may contact Collaborate within 14 calendar days of purchasing a subscription or any part thereof to report any discrepancies or faults to make a claim.
4.4 Refunds are made in our discretion subject to any guarantees that cannot be excluded under the Australian Consumer Law.
4.5 Collaborate will facilitate a refund if we are unable to facilitate the completion of the Services in accordance with the Subscriber’s subscription, or if the delivery of our Services is defective or if Collaborate determines, in our absolute discretion, it is reasonable to do so.
5. INTELLECTUAL PROPERTY
5.1 In these Terms:
“Intellectual Property (Rights)” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.
“Works” means any material made available on the App and our Services, including (without limitation) written texts, documents, articles, news, newsletters, posts, commentaries, surveys, data, forms, questionnaires, photographs, pictures, graphic works, video, or images.
5.2 You acknowledge that ownership of the Intellectual Property Rights relating to the App or our Services is the property of, licensed by or vest on creation in Collaborate.
5.3 The Works on the App or generated by or related to any of our Services (“Copyright Material”) are subject to copyright and owned by the copyright owner. The Copyright Material on the App is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Copyright Material and compilation of the App (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) are owned or controlled by us. Data procured from a third party may be the subject of copyright owned by that third party.
5.4 The App or any part of it (including, without limitation, any content or images) may not be copied, reproduced, adapted, publicly displayed, duplicated, translated or distributed in any way (including mirroring) to any other device, server, site or other medium for publication or distribution, without our express prior written consent. Subscribers must not infringe the Intellectual Property Rights owned in or licensed via our Services from unauthorised use, copying, reproduction, lending, reselling, manipulation, disassembly, distribution or publication.
5.5 All Intellectual Property including any trade marks, service marks, trade names and any other proprietary designations are owned, registered or licensed by us. Any other trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties.
5.6 Unless otherwise stated, Collaborate retain all rights, title and interest in and to the Copyright Material on the App and delivered under our Services. Nothing you do on or in relation to the App or our Services will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
(b) right to use or exploit a business name, trading name, domain name, trade mark or industrial design;
(c) thing, invention, design, system, work or process that is the subject of a patent, registered design or copyright or any other Intellectual Property Right (or an adaptation, improvement, modification of such a thing, invention, design, system, work or process); or
(d) any proprietary rights to our database, know-how or technology
5.7 “Collaborate Clinic App” and all associated trade marks on the App are our trade marks or any related entities. You must not use our trade marks:
(a) are legally permitted to use and access the Services;
(b) in connection with activities, products or services which are not ours; or
(c) in a manner which may be confusing, misleading or deceptive.
5.8 The obligations accepted by Subscribers under this clause survive termination or expiry of these Terms.
6.1 In these Terms:
"Subscriber Data" means all data, works and materials (including without limitation text, communications, forms, questionnaires, information, messages, comments, photographs, images, audio material, video material, audio-visual material, scripts, software and files) that you submit to us for or related to the supply of the Services.
6.3 By registering as a Subscriber, Collaborate grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable licence (“Licence”) to access the App to interact with and use our Services solely in connection with your rights under these Terms.
6.4 This Licence may be terminated at any time in our sole discretion if you use the App or the Services except as permitted by these Terms.
7. OTHER LIMITATIONS ON USE
7.1 You agree not to do any of the following:
(a) distribute, sell, publish, enable or allow access to your Subscriber Account except directly to access our Services;
(b) hack, attempt to hack, modify, adapt, merge, translate, decompile, disassemble, reverse engineer or create derivative works out of the App or the Services or our Copyright Material or any part of it;
(c) use the Services in any way prohibited by law, regulation, governmental order or decree;
(d) introduce any computer code or routine that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial or service, unauthorised disclosure or destruction or corruption of data, including viruses, worms, spyware, adware, keyloggers, trojans, time bombs and any new types of programmed threats; or
(e) remove, disable, modify, add to or tamper with any program code or data, copyright, trade mark or other proprietary notices contained on the App or in the Services.
8. SUBSCRIBER TERMINATION
8.1 Collaborate may terminate these Terms without notice to you if:
(a) you have breached any provision of the Terms; or
(b) Collaborate believes reasonably that you are making unauthorised or improper use of the App or Services.
8.2 Collaborate reserve the right to discontinue your Subscriber Account at any time and may suspend or deny, in our sole discretion, your access to all or any portion of the Services without notice if your conduct impacts our name or reputation or violates the rights of any other Subscriber or third party or is otherwise contrary to law.
8.4 The early termination of your Subscriber Account or subscription is not a ground for a refund. You will be billed for the full term of your subscription and continue to have access to the Services if you terminate your agreement prior to the end of your subscription.
9. WARRANTIES AND REPRESENTATIONS
9.1 Except as otherwise required by law, no warranty of any kind whether express or implied is made in relation to the App or our Services.
9.2 Collaborate does not warrant the products or services of any third-party providers (for example, app hosting, data security, app uptime).
9.3 Collaborate does not warrant that the Services will be performed error-free, uninterrupted or free of bugs or viruses.
9.4 It is the Subscriber’s sole responsibility to determine that the Services or any part of these meet the needs of the Subscriber or are otherwise suitable for the purpose for which they are purchased.
9.5 Collaborate excludes from these Terms all other warranties, conditions and terms implied by law except for any, the exclusion of which would contravene any law.
9.6 As a Subscriber of the App or Services, you represent and warrant that you:
(a) are legally permitted to use and access the Services;
(b) take full responsibility for the selection and use of the Services;
(c) are solely responsible for the accuracy of the Subscriber Data and Registration Data;
(d) agree that Collaborate does not control, verify, or endorse any Subscriber Data uploaded or submitted to the App and the Services;
(e) are solely responsible for creating backups of Subscriber Data and Registration Data;
(f) in relation to Subscriber Data, that Subscriber owns it or is lawfully entitled to access and store it on the App or is licensed to use the Intellectual Property Rights in it and that the use of the Subscriber Data will not be contrary to any law or result in the infringement of any of the proprietary rights of third parties.
(g) Subscriber warrants that the Subscriber Data is not in contravention of any legislation or any advertising or marketing laws or any other third-party rights.
9.7 This clause survives the termination or expiry of these Terms for whatever reason.
10. DISCLAIMER AND LIMITATION OF LIABILILITY
10.1 To the extent permissible at law, you agree that we, our affiliates or subsidiaries, or any of our directors, officers, employees, partners, agents, contributors, and licensors shall not be liable to you or any third party for any:
(a) loss of profit or opportunity (whether incurred directly or indirectly);
(b) damage to goodwill or business reputation and any other intangible loss;
(c) special, direct, indirect, incidental, punitive, exemplary or consequential damages whatsoever or any other losses, costs or expenses of any kind, including loss of data, legal fees, expert fees, cost of procuring substitute services, or any other disbursements
arising, directly or indirectly, from your reliance on, access to, use of, or inability to access or use, the App and any other content provided therein, or through downloading of any materials, data, text, images, video or audio from the App, whether in common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
10.2 Collaborate makes no warranties or representations regarding the content of the App, or the content of any sites linked to the App, or that the App and our Services will be uninterrupted or error-free. Collaborate assumes no liability or responsibility for any:
(a) errors, defects, mistakes, or inaccuracies of content on the App;
(b) unauthorised access to or use of the App’s servers, personal information or financial information stored therein;
(c) interruption or cessation of transmission to or from the Services;
(d) bugs, viruses, harmful components, trojan horses, or the like which may be transmitted to or through the Services by any third party;
(e) errors or omissions in any content or for any loss or damage of any kind incurred because of the use of any content posted, emailed, transmitted, or otherwise made available via the Services;
(f) human action or inaction of any computer system, phone line, hardware, software or program malfunctions, or any other errors, failures or delays in computer transmissions or network connections through your access to or use of the Services;
(g) quality, accuracy, completeness and validity of any information or materials in connection with the Services.
10.3 Our Services are provided “as is” and specific results cannot be guaranteed. It is your sole responsibility to determine that the Services or any part of these meet your needs or are otherwise suitable for the purposes for which they are used.
10.4 These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible Collaborate limits our liability as follows, at our option:
(a) for any claims relating to these Terms, to the fees payable under this agreement (if applicable) for the preceding one (1) month;
(b) in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products; or (d) the payment of having the products repaired; or
(c) in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.
This limitation applies to any supply under or related to these Terms including the supply of the Services and covers loss of Subscriber Data, any viruses or other disabling features that affect your access to or use of our Services, incompatibility between our Services and your hardware or software, delays or failures you may have in using the Services including any connections or transmissions that fail or are not completed in an accurate or timely manner.
10.5 Save to any extent expressly provided otherwise in these Terms or as otherwise required by law, you agree that we will not:
(a) pay you any compensation or other payment upon the discontinuance or alteration of the App in any way; and
(b) reimburse you for any costs whatsoever incurred because of you using the App, or any other features provided in connection to the App, whether purchased or distributed for free.
10.6 Our total liability arising out of or in connection with the App or these Terms, however arising, whether at common law, under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed at our option the resupply of the App to you. Our aggregate liability to you in respect of any contract to provide the App to you under these Terms shall not exceed the greater of the total amount paid by you and payable to us for providing the App Services.
10.7 This clause survives the termination or expiry of this Agreement for whatever reason.
11.1 Subscriber agrees to defend, indemnify and hold Collaborate, our affiliates, employees, agents, contributors, third party content providers and licensors harmless from and against all actions, suits, claims, demands, liabilities, costs, expenses, losses and damage (including legal fees on a full indemnity basis) brought against or sustained by Collaborate, which:
(a) is directly or indirectly caused by Subscriber’s breach of these Terms;
(b) is directly or indirectly caused by any willful, reckless or negligent act of Subscriber;
(c) concerns personal injury to any person caused or contributed to by Subscriber;
(d) is caused by Subscriber’s act or omission and constitutes a loss of or damage to property;
(e) is brought by any third-party in respect of personal injury, death or damage to third-party property; or
(f) arises from Subscriber’s act or omission.
11.2 Except as required by law, Collaborate will not be liable for any claim, loss or liability for personal injury, death or damage to Subscriber or third-party, or its property however it may be caused.
11.3 Collaborate reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Subscriber, and in such case, Subscriber agrees to cooperate with our defence of such claim.
11.4 In no event will Collaborate be liable to Subscriber for any indirect, incidental or consequential damages including, without limitation, indirect, special, punitive, or exemplary damages.
12.1 Compulsory process
A Party shall not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has complied with this clause.
A Party claiming that a Dispute has arisen shall notify each other party to the Dispute giving details of the Dispute.
12.3 Initial period – efforts to resolve Dispute
During the 30-day period after a notice is given (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each Party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.
If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:
(a) a mediator agreed on by the Disputants; or
(b) if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Parties must submit the dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.
12.5 Role of mediator
The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
Any information or documentation disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.
12.7 Costs of mediation
Each Disputant shall pay its own costs of complying with this clause. The Disputants shall pay equally the costs of any mediator engaged.
12.8 Location, timing and attendance
The mediation will be held in Sydney, Australia, within 30 days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by a representative having full authority to resolve the dispute. At the mediation each Disputant may be represented by one or more legal representative.
12.9 Failure to resolve
If the dispute fails to resolve at mediation or if one of the Disputants fails or refuses to attend the mediation, the mediator will be requested to inform each Disputant in writing that the mediation has been terminated without resolution (Mediation Termination Notice). Upon receipt of Mediation Termination Notice, the dispute resolution process will be terminated. A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, after receipt of Mediation Termination Notice.
All communications concerning negotiations made by the Disputants arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable law of evidence.
14. ADVERTISING AND LINKS
The App may contain links and other pointers to other websites or applications operated by third parties. Collaborate do not control these linked websites and are not responsible for the contents of any linked application. The links are provided solely for your convenience and do not indicate, expressly or impliedly, any endorsement by us of the site or the products or services provided at those sites. Your access to any such advertisement or link is entirely at your own risk. You should contact the relevant third-party directly to enquire on that information prior to entering into a transaction in relation to the third-party products and services.
15. NO WAIVER
Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
16.1 You agree that Collaborate may assign, transfer, sub-agreement or otherwise deal with our rights and/or obligations under these Terms.
16.2 You may not without our prior written consent assign, transfer, sub-agreement or otherwise deal with any of your rights and obligations under these Terms.
17. THIRD PARTY RIGHTS
An agreement under these Terms is for our benefit and your benefit and is not intended to benefit or be enforceable by any third party.
18. ENTIRE AGREEMENT
Unless otherwise stated, these Terms and the relevant Agreement (s) shall constitute the entire agreement you and us in relation to your use of the App and our Services.
If any part of provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part of the provision otherwise it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
20. LAW AND JURISDICTION
20.1 The Terms and information on this App and provided by our Services are governed by and construed in accordance with the laws of the State of Western Australia. You submit to the non-exclusive jurisdiction of the Courts of Western Australia and Courts of Appeal from them for determining any dispute concerning these Terms.
20.2 If any provision of these Terms is found to be invalid or unenforceable by a Court of Law, such invalidity or unenforceability will not affect the remainder of the Terms which will continue in full force and effect.
21. FORCE MAJEURE
Notwithstanding any other provision of these Terms, Collaborate need not act if it is impossible to act due to force majeure, meaning any cause beyond our control (including war, riot, natural disaster or law taking effect after the date of these Terms). You agree that Collaborate have no responsibility or liability for any loss or expense suffered or incurred by you because of not acting for so long as the force majeure continues.
22. FEEDBACK AND AUTHORISATIONS
22.1 Your feedback is important to us and our Community. Collaborate welcome and encourage you to provide feedback, reviews, comments and suggestions for improvements to the App and our Services ("Feedback"). You may submit Feedback by contacting us using the contact details provided below.
23. HOW TO CONTACT US
23.1 You can contact us:
(a) using our support page provided on our website located at <www.collaborateclinics.com>;
(b) by telephone, on the contact number published on the Collaborate App or website; or
(c) by email, using the email address published on the Collaborate App or website (from time to time).
© 2018 Collaborate Medical App Pty Ltd. ALL RIGHTS RESERVED.
Terms last updated 10 June 2018.