Effective from: 6th September 2023
Consultmed is a user-friendly referral management and automated workflow platform that connects primary health care providers (eg general practitioners) directly to secondary health care providers (e.g. specialists, clinics and hospital networks). It is a cloud-hosted platform that is accessible at https://app.consultmed.co (including any subdomains) or by any online portal, site or platform approved by Consultmed which utilises the public-facing or provider-facing platform (“Platform”).
Consultlink, is a specialised platform within Consultmed’s ecosystem, focused on facilitating ‘Consults’ or e-consults. Powered by Consultmed’s core referral management software, Consultlink empowers primary care providers to seek specialist opinions or engage in consults using asynchronous messaging technology. It is also a cloud-hosted platform, available for access at https://app.consultlink.co (including any subdomains), or through any online portal, site, or platform approved by Consultmed that utilises the public-facing or provider-facing platform (“Platform”).
These Terms set out how ConsultX Pty Ltd trading as Consultmed (“Consultmed”), Consultlink Pty Ltd (ACN 661 722 578) trading as Consultlink (“Consultlink”) and any wholly or partly owned subsidiaries of Consultmed and/or Consultlink (“we”, “us” or “our”) offers our Platform and Services to you.
By accessing and using our Platform and Services, you agree to be bound by and abide by the Terms set out below.
1. Who this applies to
1.1 In these Terms, “you” and “Users” means:
(a) primary or secondary health care providers using the Platform to refer Patients (“Referrers”);
(b) secondary health care providers that receive Referrals for Patients from primary health care providers via the Platform (“Receivers”);
(c) secondary health care providers that receive Referrals for Patients from primary health care providers via the External Platform (“External Receivers“);
(d) primary or secondary health care providers or Patients using the External Platform for Referrals (“External Referrers“);
(e) Patients who are referred via the Platform (“Patients”); and/or
(f) any other person who browses the Website or registers to use the Platform or the Services.
In these Terms, the following expressions have the following meanings, unless otherwise stated:
“Account” means your Consultmed or Consultlink account that facilitates your use of the Platform;
“AHPRA” means the Australian Health Practitioner Regulation Agency;
“Approved Third Party Platforms” means any third party online site, portal or platform that is accessible and usable through the Platform or the External Platform with or without a Consultmed or Consultlink account, which includes (without limitation) any Approved Third Party Software Providers.
“Approved Third Party Software Providers” means third party providers approved by us from time to time to integrate with the Platform (including the External Platform);
“Charges” means the charges set out in clause 11, calculated at the rates set out in clause 11 or as otherwise agreed by us or published by us on the Platform from time to time;
“Consult” or “Advice & Guidance” means an asynchronous messaging-based request for specialist opinion or guidance made by a primary care provider to a secondary healthcare provider.
“Consultpilot AI” means the Azure OpenAI powered optional add-on to the Platform used to Transform documents to assist the User to enter information to the Platform, including for the purpose of creating Referrals and Consults.
“External Platform” means any online portal or site approved by us which utilises the public-facing or provider-facing Platform with or without a Consutmed or a Consultlink account.
“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable), including, but not limited to, all rights in respect of technical information, know-how, copyright (including future copyright), trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Material” means any information, data, software (source code and object code), drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Platform or otherwise displayed, uploaded or published on, or via, the Platform;
“Privacy Act” means the Privacy Act 1988 (Cth), its regulations, and any other related laws;
“Referral” means electronic request from one health care professional to another health professional or service regarding the treatment of a Patient.
“Referral Recipient” means either a Receiver, External Receiver or Patient.
“Registration Data” means information provided by you to us for the purposes of your registration to access certain sections of the Platform;
“Services” refers to the Platform and any associated services we provide as set out in clause 5 of these Terms;
“Subscription Term” means the period of the subscription to the Platform as agreed between each Receiver and us;
“Terms” means these Platform Terms of Service, as amended by us from time to time in our discretion;
“Transform” means converting files and images (e.g., JPEG, PDF, etc) of handwritten or printed text into a computer-readable form.
“User” is defined in clause 1.1 above; and
3. About these Terms
3.1 By registering with us and using the Platform, you indicate your acceptance of these Terms (including our Charges). By accepting these Terms, you agree to the obligations imposed on you under these Terms and, in exchange, we agree to provide you with access to the Platform and our Services. If you do not agree to these Terms you should immediately cease accessing the Platform and using the Services.
3.2 We reserve all rights to alter these Terms at our discretion. Each time you use the Platform or Services, it is your responsibility to be aware of our current terms. Your continued use of the Platform following the posting of changes to these Terms will be deemed your acceptance of those changes.
3.3 These Terms, as amended by us from time to time, continue to apply for the duration of your use of the Platform and Services or until terminated in accordance with clause 13.
4. Purpose of the Platform
4.1 The purpose of the Platform is to provide Referrers with an integrated referral management system that enables them to send electronic Referrals and Consults for their Patients to Receivers and External Receivers.
4.2 The purpose of the External Platform is to provide External Referrers with a referral platform that enables them to send electronic Referrals and Consults to Receivers or External Receivers.
4.3 The Platform is to be used only for non-emergency, non-acute medical Referrals and Consults.
4.4 If a Patient is acutely unwell or is experiencing a medical emergency, the relevant healthcare practitioner (e.g. Referrer, External Referrer, Receiver or External Receiver) should refer the Patient to appropriate acute medical services (e.g. emergency department, hospital) through means outside the Platform.
5. Overview of Services
5.1 We will provide a number of Services through the Platform to Users including those set out in clauses 5.3 and 5.4 (the “Services”).
5.2 We provide the Services as a platform provider. We do not in any way constitute a health care provider nor do we provide health services.
5.3 As a Referrer or Receiver, you will be able to:
(a) access the provider-facing part of the Platform;
(b) add Patients to the Platform, as well as to send and/or receive Referrals and Consults for your Patients;
(c) add your own personal and occupation and work details including primary and secondary places of practice;
(d) with the consent from of your Patient, add Patient personal and health information for the purposes of sending/receiving a Referral or Consult;
(e) with the consent of your Patient, pre-populate a Referral or Consult with Patient personal and health information taken from Approved Third Party Software Providers or an Approved Third Party Platform;
(f) receive notifications and tracking of any Referrals that you have sent or received through the Platform and via an approved workplace email address;
(g) access to our support services, including onboarding support and technical support for the Platform;
(h) contact our support services directly;
(i) contact other Users directly via the secure message delivery feature in the Platform in order to respond to enquiries, respond to Referrals and Consults, and provide updates;
(j) if your account access permission allows, use Consultpilot AI to assist with entering data into the Platform;
(k) as a Referrer, send an electronic Referral or Consult to a Receiver and explain the reasons for referring the Patient, including any information about the Patient’s condition and any attached relevant medical correspondence including pathology, imaging and other documentation;
(l) as a Receiver, receive Referrals or Consults from Referrers electronically, triage the Referral or Consult, and respond directly to the Referrer and Patient electronically;
(m) accept, return, schedule an appointment or waitlist any Referrals or Consults that have been received or sent;
(n) manage all Referrals and Consults that have been received or sent within the secure database of the Platform; and
(o) access and use of External Platforms and Approved Third Party Platforms as part of your access to the Platform.
5.4 As a Patient, you will be able to:
(a) access, view and download a PDF copy of your Referral through the Patient-facing part of the Platform, via secure email;
(b) receive notifications and tracking of any Referrals that have been made on behalf of the Patient from the Referrer to the Receiver via secure email;
(c) submit electronic consent for the Referral and Consult process, granting permission for the sharing of relevant medical information between healthcare providers involved in your care;
(d) attach supporting documents, such as clinical records or images, to your Referrals to provide additional context and information for the receiving healthcare professionals;
(e) if your account access permission allows, use Consultpilot AI to assist with entering data into the Platform
(f) receive updates and notifications regarding your Referrals and Consults;
(g) provide feedback and ratings regarding the quality of care and service received from the healthcare providers involved in your Referrals or Consult; and
(h) seek support or assistance from the Platform’s customer service team regarding any technical issues, inquiries, or concerns you may have.
5.5 As an External Receiver, you will be able to:
(a) view and download a PDF copy of the Referral or Consult; and
(b) have the option to create an account and manage Referrals and Consults within the Platform.
5.6 As an External Referrer, you will be able to:
(a) send Referrals and Consults via an External Platform;
(b) have the option to create an account and manage Referrals and Consults within the Platform; and
(c) receive a limited number of email Referral and/or Consult status notifications
6. Delivery of Referrals
6.1 In this clause 6 only:
(a) Platform means the Platform or External Platform; and
(b) Referrer means a Referrer or External Referrer.
6.2 Where a Referral or Consult is sent via the Platform by a Referrer or External Referrer to a Referral Recipient, we will:
(a) use reasonable efforts to ensure that the Referral or Consult is successfully sent;
(b) send a limited number of email reminders and notifications to the Referral Recipient of the Referral or Consult; and
(c) send email reminders and notifications to the Referrer of outstanding Referrals or Consults which are pending action.
6.3 We do not guarantee that a Referral or Consult sent via the Platform, email or any form of electronic communication will be opened, reviewed or actioned by the Referral Recipient and is not liable for a Referral or Consult in any respect, including for any failure to open, review or action a Referral or Consult by the Referral Recipient. It is the responsibility of the Referrer to ensure that the Referral Recipient acts on a Referral or Consult.
7. Using the Platform and Services
7.1 Any information that we provide is supplied in good faith, but we do not guarantee the accuracy or completeness of any information provided by us or any third party, including any User. It is your responsibility to make enquiries as to the accuracy or completeness of any information input into the Platform.
7.2 You will bear the sole responsibility for any activity that occurs on your Account. You must keep your Account details and password secure, as you are responsible for any activity on your Account (whether undertaken by you or anyone else). You must notify us immediately if you become aware of or suspect any security breach or unauthorised use of your password or Account.
7.3 The Website and the Platform may contain links to other third party websites. Those links are provided for convenience only and may not be current. Any hyperlinks or banners advertising other websites on the Website, or other third party websites that advertise the Website, are not subject to our control or privacy standards, policies and procedures. We will not be responsible for the content or privacy practices associated with such linked websites and we recommend that you make your own enquiries as to the privacy and other policies of those third parties.
7.4 You must take precautions to ensure that when accessing the Platform and Services, accessing and/or using any Approved Third Party Platform, or linking Approved Third Party Software Providers to the Platform, you do not expose your telecommunications or computer systems to viruses, malware or other forms of interference that may damage your telecommunications or computer systems. We are not responsible for any such damage to your telecommunications or computer systems which may arise in connection with your access to the Website and use of the Services.
7.6 You may access the support services via the Platform and the External Platform (as the case may be) and by submitting enquiries to firstname.lastname@example.org.
7.7 We may, at our absolute discretion, terminate, suspend or delete your Account or restrict your access to the Services (or any part of the Services) for any reason without notice. This includes for security, technical, maintenance, legal or regulatory reasons or due to any breach of these Terms. If we do this, you may be prevented from accessing all or parts of the Services, your Account details or other content contained in your Account. We will not be liable to you for doing so.
7.8 If you fail to comply with these Terms, we may, at our absolute discretion and without liability:
(a) immediately withdraw your right to access and use the Services and the Platform (including the deletion of your Account), either temporarily or permanently;
(b) take any other legal action against you; or
(c) refer or report any suspected fraudulent, abusive or illegal activity to relevant law enforcement authorities.
8. Using the External Platform
8.1 Any information that we provide via the External Platform or an Approved Third Party Platform is supplied in good faith, but we do not guarantee the accuracy or completeness of any information provided by us or any third party, including any User. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information inputted into the External Platform or an Approved Third Party Platform.
8.2 By using the External Platform or an Approved Third Party Platform, you represent and warrant to us that the information provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of the information provided as necessary and/or as required by us.
8.4 If you fail to comply with these Terms, we may, at our absolute discretion and without liability:
(d) immediately withdraw your right to access and use the External Platform, either temporarily or permanently;
(e) take any other legal action against you; or
(f) refer or report any suspected fraudulent, abusive or illegal activity to relevant law enforcement authorities.
9.1 To access the Services, you must register via the Platform and provide us with the relevant information required to set up your Account. This includes for Referrers and Receivers:
(b) AHPRA registration number;
(c) Medicare provider numbers;
(d) Professional association and membership numbers;
(e) contact details;
(f) occupation details; and
(g) billing information (including credit card details),
and for Patients includes:
(i) date of birth;
(j) Medicare number;
(k) contact details;
(l) carer and guardian details;
(m) next of kin contact details,
and any other information that may be required by us or the provider for the purposes of submitting and/or receiving a Referral (Registration Data).
9.2 We reserve the right to decline your registration request if you do not pass our verification process. In particular, all Referrers and Receivers must be healthcare practitioners registered with AHPRA and no Referrals or Consult can be sent using the Platform until this information is verified.
9.3 If you provide Registration Data to us, you represent and warrant to us that the Registration Data provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and/or as required by us.
9.4 If you provide us with Registration Data, you consent to the following:
(a) we may use your Registration Data as required for the purposes of providing the Services;
(b) you will receive an email from us confirming the details of your registration and a link for access to your Account, providing you with necessary information relating to your access and use of the Services and any subscriptions to the Services made through your Account; and
(c) from time to time, we may email you regarding our Services or third-party products and services which we believe may be of interest to you, such as new products, services, features, special offers and updated information. The emails may contain code that enables our database to track your usage of the emails, including whether the email was opened and/or what links (if any) were clicked. We may combine that information with other information which we have about you and may use that information to improve your site experience and/or provide customised email communications to you.
10. Privacy and Consent
10.1 When you:
(a) Refer a Patient;
(b) receive a Referral or Consult for a Patient; or
(c) request an Approved Third Party Software Provider to pre-populate a Patient’s health information in a Referral or Consult,
via the Platform (including the External Platform or an Approved Third Party Platform), you (or the Approved Third Party Software Provider, as the case may be) are collecting or disclosing (as the case may be) the health information of that Patient.
10.2 In undertaking any of the actions set out in clause 10.1, you represent and warrant that:
(a) you have sought and obtained all required consents (including verbal and/or written consent) from:
(i) the Patient (or a parent or guardian of a Patient who is a minor); or
(ii) any other relevant person; and
(b) you have otherwise fully complied with the Privacy Act and all other relevant legislation and regulations pertaining to the collection, storage, use and disclosure of health information, including all applicable legislation and regulations in your jurisdiction of practice.
10.3 You agree to indemnify us for any liability, costs and expenses (including our reasonable legal costs) which we incur as a result of a breach by you of your privacy obligations.
11. How much do we charge for the Services?
11.1 The Platform may be accessed for free by Referrers and Patients, with no charges applied unless otherwise agreed with us. However, please note that we reserve the right to introduce charges for Referrers in the future. Any changes to the charging policy will be communicated to Referrers in advance.
11.2 Receiver access to the Platform is subject to certain fees, including:
(a) implementation costs (if applicable);
(b) ongoing subscription fees; and
(c) any other costs as agreed between the Receiver and us,
11.3 The specific Charges for each Receiver will be agreed separately in writing between us and the Receiver.
11.4 The Charges are exclusive of GST unless otherwise specified.
12. What are your obligations?
12.1 You must at all times comply with your obligations under these Terms and fulfil your obligations in a timely manner. A failure to comply with these obligations may, at our absolute discretion, result in the suspension or termination of your Account.
12.2 You may not use a Platform other than for its intended purpose as set out in clause 4 or as otherwise communicated to you by us.
12.3 When using the Platform, you must not advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation, or mental or physical handicap.
12.4 Referrers must:
(a) act in the best interests of the Patient;
(b) collect only relevant health information in a Referral or Consult that is sent over the Platform;
(c) only send Referrals and Consults through the Platform to appropriate Receivers and External Receivers; and
(d) only share the health information through the Platform to Receivers and External Receivers and any other Users in relation to a Referral or Consult and with the full consent of the Patient.
12.5 External Referrers must:
(a) act in the best interests of the Patient;
(b) collect only relevant health information in a Referral or Consult that is sent over the External Platform or an Approved Third Party Platform;
(c) only send Referrals and Consults through the External Platform to appropriate Receivers and External Receivers; and
(d) only share the health information through the External Platform to Receivers and External Receivers and any other Users in relation to a Referral or Consult and with the full consent of the Patient.
12.6 Receivers must:
(a) act in the best interests of the Patient;
(b) act on any Referral or Consult received through the Platform as is expected of medical practitioners in their duty of care.
(c) be responsible for managing a Referral or Consult received through the Platform and any subsequent actions or necessary care required for the Patient; and
(d) communicate appropriately with the Referrer and the Patient in the best interests of the Patient.
12.7 External Receivers must:
(a) act in the best interests of the Patient;
(b) act on any Referral or Consult received through the Platform as is expected of medical practitioners in their duty of care and;
(c) communicate appropriately with the Referrer and the Patient in the best interests of the Patient.
12.8 At all times Referrers and Receivers must act in the best interest of the relevant Patient and may communicate outside of the Platform as required to advance the Referral or Consult.
12.9 Any complaints regarding abuse or derogatory behaviour on the part of any User may (in our absolute discretion) result in such User(s) being removed from the Platform, termination or suspension of their Account, and/or restricted access to the Services,.
12.10 You acknowledge and agree that, in order for us to be able to provide the Services to you without interruption you will, at your cost, at all times:
(a) cooperate with and reasonably assist us to provide the Services;
(b) promptly provide us with full and accurate information, data and explanations with regard to any dispute, complaint, issue or otherwise that may arise, as and when required; and
(c) inform us of any abusive, allegedly abusive, or unlawful behaviour from any User on the Platform.
12.11 You must procure all necessary consents or authorisations from any third parties which may be required from time to time in order for us to be able to provide the Services to you.
13.1 In addition to our other express rights under these Terms (including clauses 5.5 and 12.9), we may, in our absolute discretion, terminate these Terms or cease to supply you with the Services, if:
(a) it transpires that you have provided false or misleading information via the Platform;
(b) you are found by us to be offensive or abusive to any User;
(c) you accumulate repeated reports of User dissatisfaction, to be determined at our discretion;
(d) you no longer hold all legal authorisations required to operate via the Platform (for example, if a Referrer or Receiver is found not to be a registered Australian Medical Practitioner; and/or the relevant AHPRA registration number is invalid, expired or does not exist; and/or AHPRA agrees to an undertaking, or imposes a restriction or condition on the you that would inhibit your operation of the Platform);
(e) you do not comply with your obligations under these Terms; or
(f) it is commercially reasonable for us to cease providing the Services to you (exercising our reasonable discretion).
13.2 Without limiting any other clause in these Terms, if a Receiver fails to address a Referral sent to them through the Platform and does not communicate adequately or in a timely fashion with the Referrer or Patient, we may immediately terminate these Terms or cease to supply that Receiver with the Services.
13.3 Unless otherwise agreed with us in a separate agreement, a Patient or Referrer may terminate the arrangement at any time by ceasing to use the Platform and notifying us.
13.5 Each of us and a Receiver may terminate this arrangement by giving at least 60 days’ prior written notice to the other party in accordance with the terms of the services agreement between the parties.
13.6 At the end of the Subscription Term the arrangement for Receivers will automatically roll over for a further 90 day Subscription Term unless the Receiver notifies us in writing at least 30 days prior to the Subscription end date. If a Receiver wishes to terminate the arrangement before the end of their Subscription Term, we will be entitled to charge a break fee of up to 100% of the outstanding amounts that would be due under the remaining Subscription Term (in our sole discretion).
13.7 If your access to the Services is terminated for any reason, we will be entitled to payment for all outstanding Charges properly incurred by us up to the date of termination and any Charges incurred during any applicable notice period or otherwise specified in these Terms.
14.1 We will, within a reasonable period of time, investigate any alleged error or other issue regarding any of the Services, provided that you notify us in writing within seven (7) days of becoming aware of the error or other issue and give us all necessary information to be able to investigate the error or other issue. Notwithstanding, you agree that our liability will be limited in any event to the right to attempt redelivery of the Services to you, and otherwise in the manner set out in these Terms.
14.2 You agree to use your reasonable endeavours to ensure that the information you supply to any User or to us is complete and accurate and notify us (and, if relevant, the User(s)) in writing if there is any change to the information supplied.
14.3 Except as provided in these Terms, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance or fitness for purpose of the Services provided in accordance with these Terms is given by us, other than as required by law. All implied warranties are hereby excluded.
14.4 To the extent that you acquire goods or services from us as a ‘consumer’ (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. Nothing in these Terms operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would:
(a) contravene that statute; or
(b) cause any term of these Purchase Terms to be void,
15.1 We do not provide any direct patient care, medical or other health care interventions, diagnosis, advice or treatment whatsoever.
15.2 If you are a Patient, you acknowledge that:
(a) the Platform is not a substitute for medical advice, diagnosis or treatment and should never be relied on to suggest a particular course of treatment for a particular individual;
(b) you should always seek advice from your doctor or an appropriately qualified health practitioner before starting any medical treatment, continuing with medical treatment or discontinuing medical treatment and with any questions you may have regarding any medical condition;
(c) you should never disregard medical advice, nor delay in seeking it, because of anything on the Platform;
(d) it is always your responsibility to seek proper medical advice as to the suitability (or otherwise) of any information on the Platform having regard to your individual circumstances;
(e) the responsibility of the health care and medical treatment of each Patient is that of the relevant Referrer or External Referrer and, if accepted, the relevant Receiver or External Receiver, and is not the responsibility of us or our personnel under any circumstances; and
(f) it is the responsibility of a Referrer, External Referrer, Receiver or External Receiver on the Platform or the External Platform to allow access and use of your information to an Approved Third Party Platform and as such, you acknowledge that we are not liable whatsoever to any damages cause as a result of any access and use of your information by an Approved Third Party Platform.
15.3 To the extent permitted by law and except in relation to the Non-excludable Obligations, all warranties and conditions whether implied at law or under any applicable legislation, save those expressly set out in the Terms, are hereby excluded.
15.4 By including a Referrer, External Referrer, Receiver or External Receiver on the Platform, and in addition to clause 6.3, we do not make any warranty or guarantee regarding:
(a) the work or advice provided by such Users;
(b) the delivery or receipt of a Referral to a Referral Recipient;
(c) the delivery or receipt of a Referral sent, whether by the Platform or External Platform, to an External Receiver’s email inbox;
(d) whether such Users will respond to Referrals or enquiries on the Platform, or the time within which such responses will be made;
(e) the appropriateness of any Referrals from such Users; or
(f) any other information regarding Users on the Platform.
15.5 To the extent permitted by law and except in relation to the Non-excludable Obligations, we will not be liable for any loss, expenses, liabilities, costs or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of any part of the Platform or downloading of any material or content posted on it, or on any website linked to it. We recommend that you have up-to-date virus checking software installed.
15.6 To the fullest extent permitted by law and except in relation to the Non-excludable Obligations, we are not responsible for dealing with, and not liable for, any disputes or complaints made by you or any User in relation to the Referrals or information on, or via, the Platform (including any dispute or complaint regarding Patient treatment).
15.7 Except in relation to the Non-excludable Obligations, and otherwise to the extent permitted by law, you agree that we will not be liable for any indirect, consequential, special or exemplary losses, expenses or liabilities or any loss of profits, loss of revenue, downtime costs, economic loss, loss of goodwill, loss of or damage to reputation, corruption or alteration of data, failure to realise anticipated savings, insurance costs, medical negligence claims, medical or healthcare costs, loss of opportunity, expectation loss or loss of production arising out of, or in connection with, the provision or use of the Services, the Platform or these Terms, whether based in contract, tort, negligence, strict liability theories or otherwise.
15.8 Subject to clause 15.7, and except in relation to the Non-excludable Obligations, and otherwise to the extent permitted by law, you agree that our maximum aggregate liability to you under or in connection with these Terms (and whether based in contract, tort, negligence, strict liability theories or otherwise) will be an amount equal to the total Charges that you have paid in the 90 days preceding the claim.
15.9 This clause 15 survives termination or expiry of these Terms.
16.1 Without limiting clause 16.2, you indemnify us, and hold us harmless, from and against any and all claims, loss, damage, taxes, liabilities and/or expenses that may be incurred by us arising out of, or in connection with:
(a) claims of intellectual property infringement by any person in relation to you uploading, posting, transmitting or otherwise making available any Material via the Services or the Platform;
(b) your use of the Platform or the Services or any breach by you of these Terms; and
(c) any access and use to a Patient’s information by an External Platform or an Approved Third Party Platform,
except to the extent that the claims, loss, damage, taxes, liabilities and/or expenses were caused by or contributed to by us.
16.2 You agree and acknowledge that we will not be liable or responsible for any loss or damage suffered by any User due to your actions or inaction, and you will indemnify us from and against any and all claims by any User in relation to any and all content created by you or any actions or inaction by you, except to the extent that the loss or damage was caused by or contributed to by us.
16.3 This clause 16 survives termination or expiry of these Terms.
17. Intellectual Property
17.1 You acknowledge that all Intellectual Property Rights in the Services are the property of us (or our licensors) and your use of, and access to, the Services does not give you any rights, title or interest in or to the Services. Unless expressly authorised either under these Terms or otherwise by the licensors, you may not reproduce, adapt, modify, display, perform or distribute the Services or any part of the Services.
17.2 You may not modify or copy the layout or appearance of the Services or any computer software or code contained in the Services, nor may you decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Services.
17.3 We grant you, for the duration of these Terms as determined in accordance with clause 3.3, a non-exclusive, non-transferable and revocable licence to use the Intellectual Property Rights embodied in the Services only to the extent necessary for you to use the Services (including the Platform) for your business purposes.
17.4 By uploading, posting, transmitting or otherwise making available any Material via the Services, you:
(a) grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to use, publish, reproduce and otherwise exploit that Material in any form to enable us to provide the Services and unconditionally waive any moral rights that you might have in respect of that Material; and
(b) represent and warrant that you either own the Intellectual Property Rights in that Material or have the necessary permission to upload, post, transmit or otherwise make available that Material via the Services.
18. Unavoidable Events
18.1 We will not be liable to you if we are prevented from, or delayed in, providing the Services due to acts, events, omissions or accidents beyond our reasonable control (“Unavoidable Events”). Where an Unavoidable Event occurs, we will attempt to recommence provision of the Services as soon as reasonably practicable.
19. Dispute Resolution
19.1 If you have a complaint about the performance of these Terms or the Services, you will contact us at email@example.com in the first instance and allow us reasonable time to consider your complaint, determine a possible solution and notify you of the solution.
19.2 This clause 19 survives the expiry or termination of these Terms.
20. Linking to the Platform
20.1 You may link to the Platform from your own website or otherwise, provided that you do so in a way that is fair and legal and does not damage, or take advantage of, our goodwill. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by us where none exists.
20.2 We reserve the right to withdraw linking permission under this clause 20 by updating these Terms or by notice to you.
21.1 We may assign, sub-contract, or otherwise transfer any or all of its rights and/or obligations under these Terms. You may only assign, subcontract, or otherwise transfer any or all of your rights and/or obligations with our prior written consent, which can be refused in our absolute discretion.
21.2 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.
21.3 We and you are independent. No contractor, agency, partnership, joint venture, fiduciary or employment relationship is created by these Terms. Neither we nor you will have, nor represent that we or you have, any authority to make any commitments on the other party’s behalf except expressly pursuant to these Terms.
21.4 Any provision of these Terms that is found to be void or unenforceable will, to the extent that it is void or unenforceable, be severed from these Terms without affecting the enforceability or validity of any other provisions.
21.5 These Terms are governed by the laws of New South Wales, Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts exercising jurisdiction there.
21.6 These Terms and any document expressly incorporated in them contain the whole agreement between us and you in respect of the subject matter of these Terms and supersede and replace any prior written or oral agreements, representations or understandings between the parties. The parties confirm that they have not relied on any representation that is not expressly incorporated into these Terms.