Terms of Service Last Updated: 8 February 2024
1. Terms of Service In these terms and conditions of service (Terms of Service) apply between Smartsoft Pty Ltd ACN 008 110 558 (Smartsoft, We, Our, Us and other similar terms) and You (Subscriber, You, Your and other similar terms) and Your use of the program known as PracSuite. These Terms of Service and the Purchaser Order (including a Direct Debit Request Form and SMS Credit Terms included or referenced in the Purchaser Order) form the entire contract with You in respect of PracSuite (Agreement). If there is any inconsistency between the Terms of Service and the Purchase Order, the relevant provision in the Purchase Order prevails. The Subscriber and Smartsoft are each a party to the Agreement and are together referred to as "Parties".
Our contact information is as follows:
Smartsoft Pty Ltd ACN 008 110 558 107 Flinders Street, Adelaide, SA, 5000 Phone: +61 8 8361 2666 businesscare@smartsoft.com.au
1.1 Acknowledgement The Subscriber:
(a) agrees to access and use PracSuite for the Term and the number of End Users selected at the time of its subscription in the Purchase Order (or as permitted by these Terms of Service);
2. Definitions Used in These Terms of Service In these Terms of Service, unless the context or subject matter requires otherwise:
Account means the user name and access credentials linked to an account authorised by the Subscriber that allows each of its End Users to access and use PracSuite.
ACL means the Australian Consumer Law, comprised in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Act means the Corporations Act 2001(Cth).
Agreement means the agreement constituted by the Purchase Order (including a Direct Debit Request Form and SMS Credit Terms included or referenced in the Purchaser Order) and these Terms of Service.
Business Day means:
(a) for receiving a Notice, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Notice is received; and
Claim means, in relation to a party, a demand, threat, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.
Client means a client, customer or patient of the Subscriber whose Data is added to PracSuite by an End User.
Control takes its meaning from section 50AA of the Act.
Commencement Date means the date that the Subscriber subscribed for a subscription to PracSuite for the current Term.
Confidential Information means:
(a) all information relating to the business of Smartsoft, methodologies, manuals, artwork, advertising manuals, trade secrets and all financial, accounting, marketing and technical information, customer and supplier lists, know-how, technology, operating procedures and other information used by or relating to Smartsoft and its transactions and affairs;
Data means any information about Clients and other data and information which the Subscriber authorises its End Users to input, upload, view and use in conjunction with PracSuite.
Data Breach means any unauthorised access to, unauthorised disclosure of, or loss of, Personal Information held by a subscriber in PracSuite about its customers where the access, disclosure or loss is likely to result in serious harm to any of the individuals to whom the information relates.
Documentation means any user manual, support, guides and explanatory notes or memoranda provided in either electronic form within PracSuite as updated from time to time.
End User means a person authorised by the Subscriber to access and use PracSuite for the Term.
Chargeable End User means a class of End User (being practitioners rather than administrative staff) that the Subscriber agrees to pay an End User Fee in exchange for the right to access PracSuite.
End User Fee means the amount of money that the Subscriber agrees to pay Us per Chargeable End User to access PracSuite for the Term as advised to the Subscriber at the time the Subscriber agrees to or renews (as the case may be) this Agreement.
Fees mean the End User Fees and the Other Fees.
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disasters, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party's control.
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or a having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Liabilities or Liability means Claims, losses, damages, liabilities, costs (including legal fees on a full indemnity basis) or expenses of any kind and however arising, including penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
Notice means a notice, demand, consent or communication sent pursuant to a clause of these Terms of Service:
(a) that must be in writing and in English directed to the recipient's address for Notices specified in this Agreement;
Other Fees means any fee other than the End User Fees payable by the Subscriber from time to time as disclosed to the Subscriber and available on our Website when the Subscriber agrees to or renews (as the case may be) this Agreement.
PracSuite means the cloud-based practice management system which Smartsoft provides to the Subscriber and its End Users to access and use under the terms and conditions of this Agreement.
Personal Information has the meaning given by the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth), as amended or replaced from time to time.
Privacy Laws mean all applicable mandatory privacy laws which regulate the disclosure, use and collection of personal information, including the Privacy Act and the Australian Privacy Principles.
Purchase Order means the purchaser order in respect of PracSuite, which We prepare and You accept, including by You accepting the same online.
Sensitive Information has the meaning given by the Privacy Act.
SMS Credit Terms means Our Online Terms and Conditions for Purchase of SMS Credits.
Subscriber means the person, company, partnership or other trading entity that has agreed to use PracSuite under this Terms of Service.
Term means the period of time during which the Subscriber obtains the right to access PracSuite under this Agreement, being the period commencing on the Commencement Date and ending at the expiration of the term selected at the time of subscription in the Purchaser Order, which will be on a monthly basis unless otherwise stated in the Purchase Order (unless terminated earlier in accordance with this Agreement).
Update means any modifications, new or revised versions of PracSuite required for Us to add new features, enhance existing functionality, operate more efficiently, or other necessary changes as determined by Smartsoft at Our sole discretion.
Website means the website located at the url: www.pracsuite.com, where the Subscriber and its End Users can access PracSuite.
3. Grant of Right to Access PracSuite 3.1 Commencement The terms and conditions in this Agreement commence on the Commencement Date and continue for the Term unless terminated according to the terms and conditions contained herein and subject to clause 3.6.
3.2 Rights Granted Smartsoft grants the Subscriber a:
(a) non-transferrable and non-exclusive; and
In order for PracSuite to function, End Users must have the following:
(a) a stable internet connection with one (1) Mb/s download and upload speed; and
3.4 Use of PracSuite (a) The Subscriber agrees:
3.5 Payment of Fees (a) The Subscriber agrees to pay the Fees to Smartsoft in consideration for the agreed number of Chargeable End Users nominated at the Commencement Date.
After the expiry of the Term, the terms and conditions contained in this Agreement continue on a month-to-month basis subject to:
3.7 Cancellation (a) The Subscriber may cancel its subscription at any time by providing Us with Notice of its intention to cancel.
4. Use of Account 4.1 Security Obligations (a) The Subscriber is responsible for:
4.2 Use of Account Information The Subscriber warrants that its End Users are:
(a) responsible for ensuring that they are the only persons accessing PracSuite using its Account; and
The Subscriber's Data held in PracSuite is backed up by Smartsoft at a minimum of once every 24 hours, with backups retained for a minimum of 31 but up to 60 days. PracSuite will not be responsible for any damage, loss, cost or expense incurred arising from or in relation to any destruction, damage or loss of, or failure to back up Data.
5. Rights in Relation to Intellectual Property (a) The Subscriber and its End Users do not obtain any express or implied Intellectual Property rights in PracSuite beyond the right to access and use it during the Term.
6. Support and Maintenance 6.1 Support (a) During the Term, We will provide reasonable levels of helpdesk and technical support in relation to the basic use and functionality of PracSuite by telephone, email, online chat and self-service knowledge base on our Website.
(a) If it is necessary to interrupt the Subscriber's use of PracSuite, Smartsoft will endeavour to provide You with reasonable notice (where possible) of when it is anticipated that PracSuite will be unavailable.
7. Subscriber's Privacy Obligations 7.1 Obligations of Subscribers The Subscriber acknowledges and agrees that the Subscriber operates a health service and deals with Sensitive Information. As such, the Subscriber acknowledges that:
(a) it must have its own privacy policy that complies in all respects with the Australian Privacy Principles and the Privacy Act and any foreign legislation that applies to it and which expressly provides for how Personal Information is collected, stored in and used and disclosed by or in conjunction with PracSuite;
(a) Personal Information (including of Clients) entered into PracSuite by End Users may be disclosed, stored to and used by third parties in certain circumstances, including because of use, functionality and system integrations provided by PracSuite (External Disclosures). External Disclosures are as recorded in the Annexure.
7.3 Consent to be Obtained from Clients The Subscriber agrees to obtain the Client's express consent prior to:
(a) sending Personal Information about that Client to any third party that PracSuite integrates with; or
8. Use of Personal Information and Spam Obligations 8.1 Privacy Obligations (a) The Subscriber agrees to comply with all Privacy Laws. The Subscriber must also ensure that the End Users comply with Privacy Laws in respect of the use by the End Users of PracSuite. You agree not to do anything which would cause Us to breach any Privacy Laws.
8.2 Privacy Policy The Subscriber acknowledges that Personal Data is stored, accessed and disclosed in PracSuite in accordance with Our Privacy Policy. The Privacy Policy, as amended from time to time, is available on the Website at www.pracsuite.com/privacy.
8.3 Consent to the Provision of Information to Third Parties The Subscriber acknowledges that its contact details and those of its End Users may be provided to third parties for PracSuite to operate effectively, particularly because of approved third-party integrations.
8.4 Notifiable Data Breaches The Subscriber and Smartsoft each acknowledge and agree to:
(a) notify each other immediately upon suspecting, or becoming aware of, any unauthorised access to or disclosure of Personal Information that is shared between or mutually held by them (including Data);
8.5 Spam Obligations In using any SMS or email integration in PracSuite, You must comply with all applicable laws, including the Spam Act 2003 (Cth).
9. Express Prohibitions on Use (a) The Subscriber must not and must procure that the End Users do not:
10. Warranties (a) The Subscriber warrants that:
(b) No advice or information, whether oral or written, obtained from Smartsoft in relation to PracSuite creates any warranty not expressly stated herein.
11. Limitation of Liability 11.1 Disclaimer of Warranties (a) To the maximum extent permitted by law, Smartsoft disclaims all warranties in relation to PracSuite and the services it provides not expressly made and incorporated into this Agreement.
(a) Subject to Claims under clause 11.2(b), Smartsoft's total capped cumulative Liability to You for all Claims arising under or in connection with an Agreement (whether the Claim is in contract, negligence or otherwise) is capped the total End User Fees for the PracSuite subscription You have paid to Us in the twelve (12) month period before you make the Claim. You agree that if this clause was not included, then either (a) the terms on which We would have agreed to provide PracSuite and related services would have been substantially different (including an increase in price), or (b) We may have decided not to grant You the Licence.
11.3 Exclusion of Consequential Losses (a) To the extent permitted by law, We will not be liable to You for any economic loss, consequential, contingent, special or indirect damages (including resulting from the loss of business, revenue or profit) with respect to Claims (including third party claims) arising (i) under or in connection with this Agreement, the Licence, other supplies of services or goods to You, (ii) You and Your End User's use of PracSuite, (iii) from any act or omission by Us in performing this Agreement, for a breach of contract, for negligence or under any other theory of law (even if the risk of such loss or damage was known to Us or You), (iv) from any inaccurate or incorrect information provided about PracSuite, (v) any failure or delay including, but not limited to, the use or inability to use PracSuite, or (vi) any interference with or damage to the Subscriber's or its individual End Users' computers or access devices which occurs in connection with use of PracSuite.
(b) Nothing in this Agreement attempts to limit or exclude the liability of Smartsoft in compliance with section 64 of the ACL.
11.4 ACL This clause applies in respect of any supply made by Us to You, where You are a "consumer" within the meaning of section 3(1) of the ACL, and we have made any warranty to you in respect of PracSuite or otherwise under or in connection with any supplies made or to be made by Us under this Agreement. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: (a) to cancel your contract with Us and (b) to a refund for the unused portion or compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you, are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services.
12. Indemnity (a) The Subscriber indemnifies, and must keep indemnified, Smartsoft and Our employees, officers and agents against any actions, liability, claim, loss, damage, proceeding, expense (including legal costs) suffered or incurred by Smartsoft arising from or in connection with, either directly or indirectly, the Subscriber's breach of any of its obligations contained in this Agreement, including, but not limited to, the making of a warranty claim that is inaccurate or incomplete or a breach of clause 7.
13. Termination 13.1 Termination by Smartsoft Smartsoft may terminate this Agreement by written notice to the Subscriber if:
(a) it no longer has the right to provide PracSuite for any reason whatsoever;
(c) it is notified, after having made reasonable inquiries, that the Subscriber;
(d) the Subscriber sells its business or enters into a Change of Control transaction and has not sought to change the registration details of the Subscriber and paid the appropriate Fee;
The payment of Fees is an essential term of this Agreement. Notwithstanding any other term of this Agreement, We may immediately terminate this Agreement if any Fee remains outstanding fourteen (14) days after its due date (whether or not We have given written notice of the outstanding Fee).
13.3 Actions Upon Termination or Expiry of the Term On termination of this Agreement for any reason (including by expiration of the Term):
(a) the Licence ends, and the Subscriber and its End Users must stop accessing and using PracSuite within seven (7) days;
(a) For all correspondence, including Notices in relation to this Agreement, the Subscriber is to contact Smartsoft at the address at the start of this Agreement.
13.5 Termination by the Subscriber You may terminate the Agreement by written notice to Smartsoft if:
14. Fair Use Policy 14.1 Fair Use by Subscriber (a) While Smartsoft does not impose limitations on access and use of PracSuite, We reserve the right to place technical limits on the use of Data in order to maintain serviceability, availability and performance for all End Users. In addition, Smartsoft may from time to time, set a limit on the amount of Data Smartsoft stores for the Subscriber. Where the Subscriber exceeds such Data storage limit the Subscriber must either reduce the Data stored by Smartsoft or pay Smartsoft a fee for such additional Data storage (which such additional fee will be as fixed by Smartsoft acting reasonably).
15. End Users (a) Subscriber's Obligation in Respect of End Users - Any acts or omissions of any End User will be deemed to be acts or omissions by You in respect of this Agreement and the Subscriber must procure that End Users comply with obligations in this Agreement as to the use of PracSuite.
(b) Direct Obligations of End Users - each End User that accepts these Terms of Service must comply with each obligation of an End User as set out in these Terms of Service and not do anything which would if done by the Subscriber, constitute a breach of these Terms of Service by the Subscriber.
16. Miscellaneous Provisions (a) Access to PracSuite from Outside the Jurisdiction - No representation or warranty is made that the PracSuite complies with the laws of any country outside of Australia unless set out in the Purchase Order or otherwise agreed between Smartsoft and You in writing.
Annexure - External Disclosures
Active Disclosures:
Background Disclosures:
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