Terms of Service for Health Academy
This End User Licence Agreement (EULA) is entered into between Singular Health Pty Ltd (ABN 49 636 261 919) (the Licensor) and the person specified in the Order particulars applicable to this EULA (the Licensee) and the terms of the EULA supplement and apply in connection with any document marked ‘purchase order’ or ‘order’ which attaches or references this EULA regarding the provision of a platform and software licence and related services by the Licensor to the Licensee (an Order).
1 TERM & EXECUTION
1.1 The initial term of this EULA is 12 months starting on the date this EULA is executed in accordance with clause 1.3(the Commencement Date) (the Initial Term).
1.2 Unless terminated earlier, the term of this EULA will extend for a further 12 months upon expiration of the Initial Term or the expiration of any subsequent 12 month term (each a Subsequent Term).
1.3 By issuing an Order, the Licensor is deemed to have electronically executed this EULA in connection with that Order. By electronically signing or otherwise electronically accepting the Order through the Licensor’s purchase order system (Executing), the Licensee acknowledges and represents that it has read and understood the Order and this EULA and agrees to be bound by the both the Order and this EULA.
1.4 The Licensee warrants that the person Executing this document on its behalf has authority to Execute this agreement on behalf of the Licensee.
2 LICENCE
2.1 During the Term, the Licensor hereby grants to the Licensee, and the Licensee accepts, a personal, non-exclusive, non-transferable and non-assignable licence to:
(a) access and operate the Health Academy platform (the Platform) for educational purposes;
(b) access and use the Virtual Anatomy software (the Software) for its business purposes on the Designated
Equipment situated at the Location;
(c) use the Documentation internally within its organisation to support its use of the Platform and Software in accordance with the terms of this EULA,
(the Licence).
2.2 The Licensee may only allow such number of Users as specified in the Order to have access to the Platform and
Software at any one time.
2.3 The Licence is granted on such terms as expressly set out in this EULA and all rights not directly set out herein are reserved by the Licensor, in particular the Licensee must not:
(a) use the Software on any equipment other than the Designated Equipment, provided that if the Designated Equipment becomes temporarily or permanently inoperable, then the Licensee may use the Software on back up equipment until the Designated Equipment is repaired or replaced;
(b) grant, willingly or unwillingly, any third party direct access to the Platform or Software, including, without limitation, by way of lease, download, as an application service provider, or any other method;
(c) sub-license or otherwise transfer the use of the Platform and Software, whether in whole or in part, to any third party;
(d) modify, translate or create derivative works based on the Software, nor reverse assemble, de-compile or reverse engineer the Platform or Software, whether in whole or in part, nor shall it permit, whether directly or indirectly, any third party to do any of the same;
(e) make any copies of the Platform or Software, provided that the Licensee may copy the Platform or Software into any machine readable or printed form for back-up purposes in order to use such copy in place of the original Software should a failure occur on the Designated Equipment and provided that the Licensee agrees to keep any such copy safe and secure from third party or unauthorised access; or
(f) remove any proprietary notices or labels on the Software.
2.4 The Licensor may request the Licensee to provide such information as it reasonable required in order for the Licensor to generate a personal account and login details which shall be provided by the Licensor to the Licensee for the purposes of registering the Licensee’s use of the Platform pursuant to the Licence and the Licensee hereby acknowledges that:
(a) log in details are required for it to operate and use the Platform; and
(b) the Licensor may withhold, withdraw or terminate a registration on the Platform:
(i) upon termination of this EULA for any reason, including in accordance with clause 8; or,
(ii) in the event the Licensee breaches any terms of this EULA, as determined by the Licensor acting reasonably.
2.5 The Licensor, or any nominated representative of the Licensor (which may include the Reseller), may, at its discretion, inspect the Licensee’s Designated Equipment during Business Hours in order to verify the Licensee’s compliance with the terms of the Licence and this EULA.
3 LICENCE FEES
3.1 As consideration for the Licence granted in accordance with this EULA, the Licensee shall pay the Reseller or Licensor (as applicable as stated in the Order) (the Invoicing Party) the Fees set out in the Order.
3.2 The Invoicing Party may invoice the Licensor the Licence Fees in accordance with the invoicing schedule set out in the Order (an Invoice), with any Invoice required to:
(a) clearly state the Platform and Software to which it relates;
(b) clearly identify the manner of calculating the amount payable by the Licensee under the Invoice; and
(c) be a valid tax invoice for GST purposes and comply with any other tax requirements.
3.3 The Licensee must pay the amounts specified in an Invoice to the Invoicing Party at the account details provided on the Invoice within 30 days of receipt of the Invoice (the Payment Period).
3.4 The Licensee will be liable to pay interest on any amounts not paid within the Payment Period at the rate of interest (percent, per annum) quoted as the default interest rate for business overdraft reference rates by the Commonwealth Bank of Australia as may be changed from time to time, calculated daily and compounded monthly in arrears, from expiration of the Payment Period to the date of actual payment, both days inclusive.
3.5 The Licensor may, at its sole discretion, increase the Fees payable by the Licensee in respect of any Subsequent Term, provided that such increase will not exceed the Perth All Groups CPI change for the preceding year as published by the Australian Bureau of Statistics, by more than twenty percent (20%).
3.6 In this clause 3.6, a word or expression defined in the GST Act which is not otherwise defined in this agreement has the meaning given to it in the GST Act. All consideration provided under this agreement is exclusive of GST (which has the meaning given in the GST Act) unless it is specifically expressed to be GST inclusive. If a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST). The additional amount must be paid by the Recipient by the later of:
(a) the date when any consideration for the taxable supply is first paid or provided; and
(b) the date when the Supplier issues a tax invoice to the Recipient.
This clause 3.6 will survive the termination of this EULA by any party.
4 INSTALLATION AND SUPPORT
The Platform and Software shall be implemented, maintained and supported by the Invoicing Party pursuant to the terms of a separate agreement entered into between the Licensee and the Invoicing Party and nothing in this EULA obliges the Licensor to provide any implementation, maintenance or support in respect of the Software save as expressly stated herein.
5 EXCLUDED ERRORS
Neither the Licensor, nor the Reseller (if applicable), shall be liable for any delay, failure, breakdown, damage, loss, costs, claim, penalty, fine or expense arising from any Excluded Error.
6 SOFTWARE WARRANTIES
6.1 The Licensor warrants that:
(a) it is entitled to grant the Licence;
(b) whilst not warranting that Platform and Software will be error-free, the Platform and Software will conform and continue to conform in all material respects to the Functional Specifications to a standard and reliability similar to industry standard software like the Platform and Software provided by software providers like the Licensor;
(c) it will remedy any Defects in the Platform and Software within a reasonable time; and
(d) the Platform and Software will not infringe any Intellectual Property Rights of any third party, and the Licensor shall, at its cost, defend the Licensee against any claim that the Platform and Software, infringes any such right of a third party, provided that the Licensee gives prompt notice to the Licensor of such claim, the Licensor controls the defence thereof and the Licensee gives its permission, on receipt of a written request, for its name to be used in proceedings (such permission not to be unreasonably withheld or delayed) and provide at the Licensor’s expense, all reasonable assistance in defending any action or claim.
6.2 Should any third party obtain an injunction or other determination, that is adverse to the Licensor, from a court with competent jurisdiction for the infringement of any Intellectual Property Rights, the Licensor, shall, at its sole discretion and within 30 days of the infringing software having been found to so infringe:
(a) obtain for the Licensee the right to continue using the infringing Platform and Software or the parts thereof which constitute the infringement;
(b) replace the infringing Platform and Software or the parts thereof which constitute the infringement with another product which does not infringe and which operates substantially in accordance with the Functional Specifications;
(c) alter the infringing software in such a way as to render it non infringing while still in all respects operating substantially in accordance with the Functional Specifications; or failing any of the above
(d) withdraw any infringing software and refund to the Licensee the full amount of the Fees paid by the Licensee during the current 12 month term of this EULA (be it the Initial Term or any Subsequent Term), in respect of the Software.
6.3 The warranties provided pursuant to this clause 6 do not apply to any failure of the Platform and Software:
(a) caused by an Excluded Error;
(b) caused by the defective implementation of the Platform and Software by the Reseller;
(c) caused by the defective hardware implemented by the Reseller; or
(d) caused or contributed to by any malicious act of software disruption, theft, or analogous matters such as hacking, malware, computer virus or ransomware.
(e) Caused or contributed to by any content added or delivered by the platform and/or software that has been created, added, modified, or deleted by the user.
7 INTELLECTUAL PROPERTY RIGHTS
The Licensee agrees and acknowledges that:
(a) all Intellectual Property Rights in and to the Platform and Software are and will remain the sole property of the Licensor and the Licensee shall not question or dispute the ownership of such rights at any time during the Term or thereafter; and
(b) the Platform and Software constitute the Confidential Information of the Licensor.
8 TERMINATION
8.1 In the event the Licensee:
(a) fails to pay any amount due and payable under this EULA;
(b) fails to comply with any term or condition of this EULA and fails to remedy such default within 14 days of receipt written notice from the Licensor requiring the Licensee to remedy such default, or
(c) suffers an Insolvency Event,
then the Licensor may, without prejudice to any other rights which it may have at law or under this EULA, terminate this EULA upon written notice.
8.2 Either Party may terminate this EULA for convenience on provision of no less than 2 months written notice, provided that should the Licensee terminate this EULA pursuant to this clause 8.2, the Licensee will note be entitled to any refunds of Fees paid by the Licensee and such termination will not relieve the Licensee of any accrued obligations to the Licensor.
8.3 Upon termination, cancellation or expiry of this EULA the Licensee shall immediately cease its use of the Platform and Software and shall, within 7 days of the date of termination hereof, deliver up to the Invoicing Party, or at the Invoicing Party’s option, destroy all copies of the Platform and Software and any other Confidential Information in its possession and procure that an authorised officer of the Licensee certify that same has been done.
8.4 Termination of this EULA will not affect:
(a) the enforceability of any provisions of this EULA which are intended to operate after the expiry or termination; or
(b) the accrued rights of the Licensor under this EULA.
9 LIMITATION OF LIABILITY
9.1 The Licensors maximum liability for general and, or, direct damages for any breach of this EULA shall be limited to an aggregate amount of Fees which would be paid by the Licensee during a 12 month period following the date on which the relevant cause of action first arose and such maximum amount shall be an aggregate amount for all claims arising under this EULA.
9.2 Neither party shall be liable to the other for any consequential, incidental, indirect or special damages (including, without limitation, arising from loss of income, loss of goodwill or profits, business interruption) arising out of this EULA. However, notwithstanding anything to the contrary contained in this EULA, no limitation or exclusion of liability shall apply in the case of:
(a) any breach of confidentiality or intellectual property undertakings;
(b) indemnification obligations;
(c) wilful misconduct; or
(d) gross negligence,
by the Licensee.
10 INDEMNITY
The Licensee indemnifies the Licensor and its personnel against any loss, claim, damage, expense, cost (including legal costs on a full indemnity basis), proceeding, liability or charge of any nature that the Licensor may sustain or incur as a result or as a consequence of the Licensee’s breach of this agreement or any negligent, unlawful, wilful or fraudulent act or omission of the Licence or its personal in connection with this agreement.
11 CONFIDENTIALITY
11.1 The parties agree to keep all Confidential Information confidential and to disclose it only to their officers, directors, employees, consultants and professional advisers who:
(a) have a need to know (and then only to the extent that each such person has a need to know);
(b) are aware that the Confidential Information should be kept confidential;
(c) are aware of the party’s obligations pursuant with respect to Confidential Information pursuant to this EULA; and
(d) have been directed by the relevant party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
11.2 This clause does not apply to information that is required to be disclosed by a party by Law, including pursuant to the rules of the Australian Securities Exchange. Refer to the Privacy Policy published on the website.
12 PRIVACY
In relation to any personal information (as that term is defined in the Privacy Act 1988 (Cth) (the Privacy Act)) (Personal Information) provided to the Licensor in connection with this EULA or the supply of the Licence, the Licensee warrants to the Licensor that it will comply with the Privacy Act with respect to the collection, use, storage or disclosure of Personal Information to the Licensor.
13 NOTICES
13.1 A notice, demand, consent, approval or other communication under this EULA (Notice) must be in writing, in English
and sent to the other parties notice details as set out in an Order.
13.2 A Notice given in accordance with clause 13.1 takes effect when taken to be received and is taken to be received:
(a) if hand delivered, upon delivery;
(b) if sent by post, on the second Business Day after despatch; and
(c) if sent by email, immediately, unless the party issuing the Notice receives a notice from its email system that the Notice was not delivered,
but if the time it is taken to be received is not a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
14 FORCE MAJEURE
No party is liable for any failure to perform or delay in performing its obligations under this EULA if that failure or delay is due to anything beyond that party’s reasonable control, including but not limited to, fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage or epidemic. However this clause does not apply to any obligation to pay money.
15 DISPUTES
15.1 In the event of any dispute arising from the performance of the EULA between the Licensor and the Licensee then either party may issue a written notice of dispute to the other party setting out the matters in connection with the EULA that are in dispute. The notice of dispute must adequately identify the subject, matters, or differences in dispute.
15.2 The parties shall make every effort to negotiate a settlement of any notified dispute. If after thirty (30) days from the date of receipt of a written notice of dispute, or such other time as may be mutually agreed in writing by both parties, the dispute has not been resolved either party may refer the dispute for mediation to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement, by a person appointed by the Chair of Resolution Institute or the Chair’s designated representative. Any mediation will be conducted in accordance with the Resolution Institute Mediation Rules.
15.3 It is a condition precedent to the right of either party to commence arbitration or litigation (other than for interlocutory relief) that it has first offered to submit the dispute for mediation in accordance with clause 15.2.
15.4 Each party shall continue to perform their respective obligations under the EULA irrespective of the existence of any dispute.
16 MISCELLANEOUS
16.1 This EULA constitutes the entire agreement between the parties in respect of the subject matter hereof and neither party shall be bound by any undertakings, representations, warranties or promises not recorded in this EULA.
16.2 No variation or consensual cancellation of this EULA and no addition to this EULA shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.
16.3 No waiver of any of the terms and conditions of this EULA will be binding or effectual for any purpose unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
16.4 Should any of the terms and conditions of this EULA be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.
16.5 This EULA will be governed by and construed in accordance with the laws of Western Australia and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
16.6 Notwithstanding termination of this EULA, any clause which, from the context, contemplates ongoing rights and obligations of the parties, shall survive such termination and continue to be of full force and effect.
16.7 Each party shall bear and pay its own fees and costs of and incidental to the negotiation, drafting, preparation and execution of this EULA.
16.8 This EULA may be executed electronically in counterparts. Counterparts may be executed in accordance with clause 1.3 and may, upon the written request of either party, be exchange by email or other electronic exchange. All executed counterparts constitute one document.
17 INTERPRETATION
17.1 If a party discovers any inconsistency between documents comprising the EULA it shall immediately notify the other party in writing. In the case of any such inconsistency the agreed order of precedence of documents shall be as follows;
(a) this EULA;
(b) the Order;
(c) the Functional Specifications;
(d) the Documentation (excluding the Functional Specifications); and
(e) the Licensor’s website.
17.2 In the event of an inconsistency or ambiguity within any of the parts of this EULA as set out at clause 17.1 then the interpretation less onerous to the Licensor (as determined by the Licensor) shall apply whether or not it is more onerous to the Licensee and the Licensee shall be deemed to have allowed for such interpretation when entering the EULA.
17.3 Headings and sub-headings are inserted for information purposes only and shall not be used in the interpretation of this EULA.
17.4 Unless otherwise stated, references to clauses, sub-clauses or paragraphs are to be construed as references to clauses, sub-clauses or paragraphs of this EULA.
17.5 References to:
(a) persons shall include natural persons, companies, corporations and partnerships;
(b) any party shall, where relevant, be deemed to be references to, or to include, as appropriate, their respective successors or permitted assigns;
(c) the singular shall include the plural and vice versa;
(d) any one gender shall include a reference to all other genders.
17.6 When any number of days or months is prescribed in this EULA, same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next Business Day.
17.7 The rule of construction that the EULA shall be interpreted against the party responsible for the drafting or preparation of the EULA, shall not apply.
17.8 The words “include”, “includes”, and “including” means “include without limitation”, “includes without limitation”, and “including without limitation”. The use of the word “including” followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it.
17.9 Terms other than those defined within the EULA will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry specific practice, will be interpreted in accordance with their generally accepted meanings.
18 DEFINED TERMS
18.1 In this agreement:
(a) any term defined within, as indicated in bold within parentheses, has the meaning given therein.
(b) Business Day means any day which is not a Saturday, a Sunday or a public holiday in Western Australia.
(c) Business Hours means 8.00am to 5.00pm on a Business Day.
(d) Confidential Information means all information of a party whether verbal, written, or in electronic form including which:
(i) is by its nature confidential;
(ii) is designated by a party as confidential; or
(iii) a party knows or ought to know is confidential.
(e) Defect means a reproducible programming error, malfunction or defect in the Platform or Software, other than an Excluded Error, that causes the Platform or Software to fail to operate substantially in accordance with the Functional Specifications. A Defect shall be “reproducible” for purposes of this EULA if it can be reproduced and verified using the specific input data and other conditions, as reported by the Licensee to the Licensor, that generated the reported error, malfunction or defect.
(f) Designated Equipment means the equipment on which the Platform and Software will be loaded, which equipment shall be required to meet the minimum hardware specification as notified by the Licensor to the Licensee from time to time, provided that the Licensee acknowledges that:
(i) such specification may change from time to time in accordance with any upgrades or modifications to the Software; and
(ii) and depending on the Licensee’s configuration of such equipment, performance may vary.
(g) Documentation means such documentation describing the Platform and Software and its Functional Specifications and the user documentation for the Platform and Software as may be made available by the Licensor from time to time, including the user documentation which accompanies the Platform and Software, or is included in the help files forming part of the Platform and Software, and online user documentation for the Platform and Software, which may be made available to the Licensee via the Licensor’s website, all of which shall be incorporated into this EULA by this reference.
(h) Excluded Error means any error, defect or malfunction in the Platform and Software caused by:
(i) hardware used with or by the Platform and Software including the Designated Equipment;
(ii) proven interference by any User or any third party platform or software, or any platform and software other than the Platform and Software;
(iii) modification or alteration of the Platform or Software by persons other than the Licensor;
(iv) the misuse or abuse of the Platform and Software by any User or other third party;
(v) use of Platform and Software on any system other than the Designated Equipment;
(vi) data supplied by the Licensee or any User which does not comply with the formats stipulated in the Documentation; or
(vii) operator error.
(i) Fees mean all fees and expenses payable pursuant to the terms of this EULA as set forth in the Order.
(j) Functional Specifications means the technical and functional specifications of the Platform or Software, as set out in the Documentation.
(k) Insolvency Event means in relation to a corporation, the occurrence of any of the following events:
(i) that corporation informs its creditors generally that it is insolvent;
(ii) a liquidator, administrator, trustee in bankruptcy, receiver or receiver and manager or similar office is appointed in connection with any of the assets of that corporation;
(iii) an application is made for the administration, dissolution or winding up of that corporation which application is not stayed within ten Business Days of being made;
(iv) an order is made for the administration, dissolution or winding up of that corporation;
(v) a resolution is passed for the administration or winding up of that corporation other than for the purposes of a solvent reconstruction or amalgamation on terms approved by the Company;
(vi) that corporation enters, or resolves to enter into or has a meeting of its creditors called to enter into any scheme of arrangement or composition with its creditors generally, or any class of its creditors, other than for the purposes of a solvent reconstruction or amalgamation on terms approved by the State; or
(vii) that corporation is unable to pay its debts when they fall due, or is deemed unable to pay its debts in accordance with an applicable Law.
(l) Intellectual Property Rights means all intellectual property rights, including:
(i) patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain
names, business names; and
(ii) any application or right to apply for registration of any of the rights referred to in paragraph (i).
(m) Law means any Commonwealth, Western Australian or local government legislation (including regulations, by- laws and other subordinate legislation thereof), common law and any Authorisation;
(n) Location mans the physical address of the site where the Designated Equipment is situated, as set out in the Order.
(o) Account and Login Details means the information, product authorisation key being a sequence of numbers, code or computer program provided by the Licensor to the Licensee to enable the Licensee’s continued use of the Platform or Software.
(p) Reseller means the Licensor’s appointed reseller in respect of the Platform and Software, as stipulated in the Order.
(q) Platform means the object code version of the Licensor’s proprietary software more fully described in the Order and includes:
(i) Any one or more modules and content resources thereof;
(ii) all upgrades and enhancements thereto; and
(iii) the Documentation.
(r) Software means the object code version of the Licensor’s proprietary software more fully described in the Order and includes:
(i) any one or more modules thereof;
(ii) all upgrades and enhancements thereto; and
(iii) the Documentation.
(s) Term means the Initial Term and any Subsequent Term.
(t) User means any member of the Licensee’s staff who has access to and uses the Platform or Software for the Licensee’s normal business purposes.
Category | Examples | Collected |
A. Identifiers | Contact details, such as real name, alias, postal address, telephone or mobile contact number, unique personal identifier, online identifier, Internet Protocol address, email address and account name | YES |
B. Personal information categories listed in the California Customer Records statute | Name, contact information, education, employment, employment history and financial information | YES |
C. Protected classification characteristics under California or federal law | Gender and date of birth | NO |
D. Commercial information | Transaction information, purchase history, financial details and payment information | NO |
E. Biometric information | Fingerprints and voiceprints | NO |
F. Internet or other similar network activity | Browsing history, search history, online behavior, interest data, and interactions with our and other websites, applications, systems and advertisements | NO |
G. Geolocation data | Device location | NO |
H. Audio, electronic, visual, thermal, olfactory, or similar information | Images and audio, video or call recordings created in connection with our business activities | NO |
I. Professional or employment-related information | Business contact details in order to provide you our services at a business level, job title as well as work history and professional qualifications if you apply for a job with us | NO |
J. Education Information | Student records and directory information | NO |
K. Inferences drawn from other personal information | Inferences drawn from any of the collected personal information listed above to create a profile or summary about, for example, an individual’s preferences and characteristics | NO |