1. Introduction

This application (Application) is operated by Praccelerate Pty Ltd T/A Praccelerate (ABN: 69 653 698 901) (we, our or us). These terms and conditions (Terms) are between us and you, the person using our services through the Application as a subscriber. The primary purpose of our Application is to allow medical practitioners to create and communicate patient information and documentation (Data) between themselves, that is, to enable one medical practitioner to send Data to another medical practitioner, or medical facility. If you are using the Application on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

2. Jurisdiction

a) This Application operates globally and you are responsible for ensuring that the storage and sharing of the Data (including sensitive data, see clause 4(c)) is compliant with your country’s legal requirements, and/or the legal requirements of the country in which you are using the Application. As such, by downloading and using our Application, you warrant that you will make your own independent legal and general enquiries in relation to the suitability of this Application for its intended use in your country or any country in which you use our Application and you will abide by all applicable laws and/or regulations in your use of the Application.

b) You further acknowledge and agree that we are in no way making any representations or warranties in relation to or are responsible or liable for any of your legal and/ or professional medical obligations. We make no assurances as to the suitability and/ or legal compliance of the Application in any specific jurisdiction.

3. Accounts

a) You must create an account on our website [insert website link] (Website) to use our Application.

b) You must ensure that any personal information you give to us when creating an account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.

c) It is your responsibility to keep your account details confidential. You are responsible for all activity on your account, including purchases made using your account details (being relevant subscription fees). Your obligations pursuant to this clause involve maintaining the integrity and confidentiality of all Data shared and taking all necessary steps to maintain the integrity of the confidentiality of the Data, including:

1. 1. limiting access to password locked devices which have access to the Application;
   2. not providing any passwords to third parties, except as required to share information via the password-protected PDF function that forms part of the Application;
   3. using reasonable and secure methods to communicate the password to access the password-protected PDF function that forms part of the Application;
   4. not accessing the Application on third party and/ or public devices; and
   5. taking all other reasonable steps required to maintain the integrity and confidentiality of all Data.

4. Use of the Application

a) You accept these Terms by registering an account.

b) You agree and acknowledge that this Application is only intended for medical purposes and must only be used by medical practitioners or administrative personnel that have been approved by the medical practitioner (Approved Personnel). Use of the Application by Approved Personnel, however, is subject to the following conditions:

1. 1. The Approved Personnel will not have a separate account on the Application, but will be named as a nominated delegate under the medical practitioner’s account;
   2. The medical practitioner is primarily responsible for compliance with these Terms as the relevant account holder; and
   3. Prior to any medical data being entered by the Approved Personnel, it must first be approved for entry in writing by the medical practitioner who is the account holder.

c) You may use the Application to share Data with other medical practitioners. This could include sensitive data, being Data that relates to your patient (including any patient information, observations, images, documents, test results, or videos) and any information or Data obtained in the course of your medical practitioner-patient relationship (Sensitive Data). The Application causes the Data (including relevant Sensitive Data) uploaded by you (or otherwise on your relevant account) to be encrypted and stored on a Google Firebase database, and it can be shared by a password-protected PDF document. In the future, Praccelerate may provide additional secure channels by which Data can be shared, in which case, if relevant or required, we will update these Terms.

d) You agree and acknowledge that this Application is not to act as a storage mechanism or record keeper. In particular, we do not represent in any way that this Application fulfills your compliance obligations with regard to the storage of the Data or Sensitive Data in your relevant jurisdiction or any specific jurisdiction. You should ensure that all Data, including Sensitive Data, transcribed on the Application is stored in a separate paper or Electronic Medical Record, being a [insert definition of an EMR] (EMR) (Additional Storage). It is your sole obligation to ensure that the Additional Storage complies with all applicable laws, including privacy laws in your relevant jurisdiction or the jurisdiction in which the Data, including any relevant Sensitive Data, is stored. Nothing in this clause is intended to represent that the Application is to be used for data storage purposes, and you agree and acknowledge this is not the purpose of the Application and you will not use it for that purpose.

e) When using the Application, you must not do or attempt to do anything unlawful or inappropriate, including:

1. 1. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information or
   2. images without an individual’s consent) or any other legal rights;
   3. using the Application to defame, harass, threaten, menace or offend any person;
   4. using the Application for unlawful purposes;
   5. interfering with any user of the Application;
   6. tampering with or modifying the Application (including by transmitting viruses and using trojan horses);
   7. using the Application to send unsolicited electronic messages;
   8. using the Application in a manner that breaches our Privacy Policy;
   9. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Application; or
   10. facilitating or assisting a third party to do any of the above acts.

5. Subscription

a) In these Terms, the Price means the monthly or annual fee paid by you to access our services via the Application.

b) Subscription: You will be charged the Price for your subscription by creating an account on our Website, whereby you can then download the Application (via, for example, the App Store or Google Play or accessing it through a web browser) at no charge and use your account login details for use of the Application.

c) Free Trial Period: Your subscription may begin with a free trial, which if applicable, will last for the period specified in your account (Free Trial Period). We determine who is eligible for a free trial and limit eligibility to prevent free trial abuse. We may cancel your free trial and suspend your account at any time if we determine that you are not eligible for a free trial. At the end of the Free Trial Period, your free trial will roll over into a fully paid subscription, unless you cancel your subscription before the end of the Free Trial Period.

d) Billing Date: Subject to any applicable Free Trial Period, you will be charged the same Price each month or year (as set out in your account) on the relevant anniversary of your account creation (the Billing Date).

e) No Minimum Term & Cancellation: No minimum term applies to your subscription and you may cancel at any time. If you do so at least 48 hours before the Billing Date, you will not be billed on the next Billing Date. If, however, your cancellation is not received by us at least 48 hours before the next billing cycle (allowing us sufficient time to cancel your subscription) you will not be refunded for the Price paid for the relevant billing cycle, and your account will instead be cancelled in the next billing cycle. No refunds will be provided for any period of any billing cycle, even if the Application is not used by you in that billing cycle or part thereof.

f) We may, at our absolute discretion, suspend or cancel any subscription. If we need to suspend or cancel your subscription, we will promptly notify you via email.

g) In-active Period: If your subscription is suspended or cancelled under any circumstance, including but not limited to in accordance with clause 5(f), your account will be made in-active, i.e., you will no longer be able to utilise the Application except to access and download the records on the Application (including PDF records) existing at the time of suspension, which ability to download will remain available for 3 months from the date of your account being made in-active (In-active Period). You agree and acknowledge that following the Inactive Period, all Data and/ or other information you have uploaded or communicated through the Application, will be deleted without notice to you. However, you agree and acknowledge that we do not have control over the deletion of the said Data that has been communicated to third parties in your use of the Application.

h) You may request a deletion of your account without an In-active Period and upon receipt of such request, we will delete all Data or otherwise you have uploaded on the Application immediately, or as soon as reasonably practicable. However, you agree and acknowledge that we do not have control over the deletion of the said Data that has been communicated to third parties in your use of the Application.

6. Price and Payments

a) We may change the Price from time to time. If we change the Price, we will provide you with 14 days’ notice of the change. After 14 days, we will apply the new Price to your existing payment details for all future Billing Dates. If you do not agree with the new Price, you may cancel your subscription in accordance with these Terms.

b) You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. When you sign up for a subscription, we may pre-authorise or charge your payment method for a nominal amount to verify the payment method.

c) The payment methods we offer are set out on the Website. We may offer payment through a third-party provider being, Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

7. Australian Consumer Law

a) Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, our services come with guarantees which cannot be excluded under the Australian Consumer Law. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such and conditions are fully expressed in these Terms.

b) Where your claim is a valid claim under the Australian Consumer Law, we will refund you the Price of the relevant service. Please contact us for further information.

8. Limitations

a) You may have rights under the Australian Consumer Law (see above), and nothing in this Limitations clause attempts to modify or exclude those rights.

b) In these Terms, Consequential Loss means consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, economic loss whether arising out of a breach of these Terms, at law, under any statute, in equity, or in tort (including negligence or any claim made by any patient or third party including but not limited to a claim in relation to medical treatment, procedure or diagnosis in relation to which Data has been shared on the Application and/or through the Services).

c) Despite anything to the contrary, and without otherwise limiting this clause 8, to the maximum extent permitted by law:

1. 1. our maximum aggregate liability arising from or in connection with the Terms (including the services and/or the subject matter of the Terms) will be limited to, and will not exceed, the total Price paid by you for your subscription up to and including the date the relevant liability arises or any relevant claim is made; and
   2. we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), 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, any Consequential Loss or otherwise.

d) Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any liability caused or contributed to by, arising from or connected with any event or circumstance which is beyond our reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

e) Despite anything to the contrary, to the maximum extent permitted by law, we will have no liability, and you release and discharge us from all liability, arising from or in connection with any:

1. 1. any injury or loss to any person;
   2. death of any person;
   3. failure or delay in receiving a service on the Application; or
   4. breach of the Terms,
   5. where caused or contributed to by any:
   6. event or circumstance beyond our reasonable control; or
   7. act or omission of you or your related parties.

f) Despite anything to the contrary, to the maximum extent permitted by law, we will not have liability and you release and discharge us from all liability, arising from or in connection with:

1. 1. any storage of Data;
   2. any communication of Data;
   3. any breach of any law or your obligations to the owner of the relevant Data;
   4. any breach of your obligations as a medical practitioner under all circumstances; and/ or
   5. any temporary unavailability of our services or permanent loss of Data on the Application or otherwise due to any technical and connectivity issues.

g) You agree that any information contained on the Application and any materials provided with our services (collectively Materials) are provided for general information purposes only and do not take into account your personal circumstances or those of any patient. Our Application is not intended to diagnose, treat, cure, or prevent any disease or condition and you are solely responsible for determining the suitability of our Application for your circumstances and your reliance on the Materials is at your own risk. Use of our Application and/or the Materials does not establish a medical practitioner-patient relationship.

h) We may, at any time and without notice to you, discontinue our Application or services, in whole or in part. We may also exclude any person from using our Application or services, at any time at our sole discretion. We are not responsible for any loss, damage, or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future, or contingent (Liability) you may suffer arising from or in connection with any such discontinuance or exclusion.
This clause 8 will survive expiry or termination of these Terms.

9. Intellectual property

a) All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, any content on the Application, and the services) (Our Intellectual Property) will at all times vest, or remain vested, in us.

b) We authorise you to use Our Intellectual Property solely in the manner in which it was intended to be used.

c) You must not use Our Intellectual Property for commercial purposes, including, for example, to advertise your own business, for re-sale, or for any other revenue generation activity.

d) You must not, without our prior written consent:

1. 1. copy, 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 Application or the service, including (without limitation) altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or embedded in another web application; or creating derivative works from any of Our Intellectual Property.

e) You acknowledge that all intellectual property (including copyright) in the Data you upload or communicate through the Application is owned by you or you otherwise are entitled to upload it (Your Intellectual Property). Your Intellectual Property will at all times vest, or remain vested in you. You further acknowledge that you are licensed or otherwise entitled to use the relevant Data consistent with the Terms, and, in particular, but without limiting these Terms, provide to us the License described in (f) below.

f) Based on your acknowledgment in the above clause (e), you grant us a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Data for the purpose of consolidating or relying on the Data for our own commercial and research purposes as well as on-selling the Data to third parties for commercial benefit (Licensed Data) and warrant that the uploading and use of any Data consistent with these Terms and Conditions will not infringe any third party Intellectual Property rights.

g) Our use of the Licensed Data will not in any way breach any applicable Privacy Laws or any party’s privacy (including the privacy of the relevant patient) as it will not identify any specific details on the identity of the patient or otherwise contain information that would enable a third party to identify any specific patient. The nature of our use of the Licensed Data is to gather the Data or sub-sets thereof for data analytics or reporting purposes. For example, to extract data on the most common treatments for certain ailments, or surgical methods used for certain injuries.

h) For the avoidance of any doubt, nothing in these Terms and in particular this clause 9 limits our use of the Licensed Data, provided such use does not breach any applicable laws, including Privacy Laws.

10. General

a) Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with 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 clause). Where you are an individual habitually located or an entity incorporated outside Australia, the dispute is to be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Rules. The seat of arbitration shall be Sydney, New South Wales. The number of arbitrators shall be one. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.

b) Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details in 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 transmission by email.

c) Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.

d) Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.

e) Entire Agreement: Subject to your rights under the Australian Consumer Law, the Terms contain the entire understanding and agreement between you and us in respect of their subject matter.

f) Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Application. Prior to placing creating an account, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them.

g) Governing law: These Terms are governed by the laws of Victoria, in the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Application may be accessed in Australia and overseas. We make no representation that the Application complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Application from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Application including with respect to privacy data storage and sharing and applicable laws and/ or regulations.

h) Third-party applications: The Application may contain links to web application or other URLs operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those web applications or URLs. We recommend that you make your own investigations with respect to the suitability of those web applications. If you purchase goods or services from a third-party web application or URL linked from the Application, such third party provides the goods and services to you, not us.

For any questions and notices, please contact us at:
Praccelerate Pty Ltd T/A Praccelerate (ABN: 69 653 698 901)
Email: support@praccelerate.com
Last update: 7 June 2022
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