Software User Agreement – Standard Profiles for Allied Health Practices
Last updated: July 25, 2022
1.1 HotDoc Online Pty Ltd ABN 84 159 662 558 (We, Our or Us) operates a cloud-based patient engagement platform known as ‘HotDoc’ and the supporting software applications, services and processes (Platform), including the Listing Services.
1.2 Together with the Terms of Service, this Agreement sets out the basis on which We permit You to use the Platform. By accessing and using the Platform, You agree to be bound by this Agreement and the Terms of Service.
1.3 We may amend this Agreement and the Terms of Service at any time by publishing amended versions on Our website or by otherwise providing written notice to You. Any such amended version will apply to Your Use of the Platform from the date of its publication or Our written notice to You.
2. Your access to the Platform
2.1 You acknowledge that Your licence to access and use the Platform during the Subscription Period:
(a) is limited to Your use and access of Standard Profiles only; and
(b) does not permit You to use and access the Platform for any other purposes, including to communicate with Your patients or manage Your Practice, unless You enter into a separate agreement with us to do so.
3. Fees and Payment
3.1 In exchange for the licence to the Platform set out in this Agreement, You must pay Us the Fees in accordance with this clause 3.
3.2 The New Patient Fees are payable monthly in arrears.
3.3 We will issue invoices to You for the New Patient Fees on a monthly basis, commencing one month from the Activation Date.
3.4 You must pay all Fees within fourteen (14) days of receiving any correctly rendered invoice (without withholding, deduction or set-off of any kind).
3.5 We will provide You with a report of each New Patient, including their initial appointment details, to which the previous months’ New Patient Fees applied. If you consider that any New Patient Fee has been applied in respect of a patient that does not constitute a New Patient you will be able to dispute the charge. You will not be entitled to a pro rata refund of any Fees if You elect to stop using the Platform or terminate this Agreement within that period. Where a Fee is paid for a particular period of access to the Platform (for example, the subsequent month), You will not be entitled to a pro rata refund of any Fees if You elect to stop using the Platform or terminate this Agreement within that period.
3.6 All transactions will be processed in Australian Dollars (AUD).
3.7 During the Subscription Period, we may increase the Fees (Fee Increase) by providing prior written notice to You (Fee Notice). If You do not, within fourteen (14) days of receiving the Fee Notice:
(a) dispute the Fee Increase by written notice to Us; or
(b) otherwise terminate this Agreement in accordance with clause 5, the Fee Increase will become operative on and from the date that is thirty (30) days after the Fee Notice was provided to You.
4.1 Terms used in this clause 4 have the same meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth):
(a) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
(b) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
(c) If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party.
5. Subscription Period and Termination
5.1 This Agreement commences on the Commencement Date and will continue until terminated in accordance with this clause 5 (Subscription Period).
5.2 Either party (a notifying party) may terminate this Agreement immediately (in whole or in part) by notice to the other party:
(a) if the other party has materially breached any of its obligations under this Agreement and the breach:
(i) is not capable of being remedied; or
(ii) is not remedied by the other party within thirty (30) days of being requested to do so by the notifying party.
5.3 For the avoidance of doubt, Your use of the Platform other than in accordance with this Agreement or the Terms of Service and any failure by You to pay the Fees when due and payable will constitute a material breach of this Agreement by You.
5.4 Either party may terminate this Agreement at any time and for any reason by providing thirty (30) days’ written notice to the other party.
5.5 On expiry or termination of this Agreement for any reason:
(a) all rights and licences granted to You under this Agreement and the Terms of Service will cease; and
(b) all outstanding Fees payable by You to Us under this Agreement will immediately become due and payable.
5.6 Expiry or termination of this Agreement for any reason will not affect:
(a) the rights of either party against the other that accrued before expiry or termination or that otherwise relate to or may arise at any future time from any breach or non-observance of obligations under this Agreement that arose before expiry or termination; or
(b) any provision of this Agreement that are intended by their nature to survive termination or expiration.
6. Your obligations
6.1 You must comply and must procure that each member of Your Personnel who You have enabled to use the Platform complies with this Agreement and the Terms of Service, and any other operating procedures and instructions as notified by Us, at all times.
6.2 Any breach of this Agreement or the Terms of Service by Your Personnel will be deemed to be a breach by You.
6.3 You represent and warrant that You:
(a) have full capacity and authority to enter into and perform this Agreement and the Terms of Service; and
(b) will comply with all applicable laws in connection with the exercise of Your rights or performance of Your obligations under this Agreement and the Terms of Service, including by obtaining any licences or approvals that You may require for that purpose.
6.4 You are solely responsible and We are not responsible for Your Content and Your Profile, including where a draft of Your Profile is pre-populated by Us prior to its online publication by You, and You assume all liability in relation to Your Content and Your Profile, including any individual’s reliance on their completeness, quality or accuracy.
6.5 You undertake to ensure that Your Content and Your Profile does not comprise any Content that:
(a) is false, inaccurate or intentionally misleading;
(b) violates any third-party right (including Intellectual Property);
(c) contains material that is unlawful; or
(d) breaches this Agreement or the Terms of Service.
6.6 You confirm that You have obtained the consent of any individual about whom information or images are contained in or published via Your Profile.
6.7 You understand that we have the right, but no obligation whatsoever, to moderate Your Content and Your Profile and we may choose not to display Your Content or Your Profile (for example, if we consider that either of these are not accurate or breach this Agreement or the Terms of Service).
6.8 You may not imply or communicate that Your Content or Your Profile is in any way sponsored or endorsed by Us.
7. Dispute Resolution
7.1 If there is a dispute, controversy, difference or claim, arising out of or in connection with this Agreement or the subject matter of this Agreement between the parties (Dispute), then within five (5) Business Days of a party notifying the other party of a dispute (Dispute Notice), senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions.
7.2 If a Dispute cannot be resolved by negotiation in accordance with clause 7.1 within thirty (30) Business Days of the Dispute Notice, then the parties agree to resolve the Dispute by mediation. In this event:
(a) the mediator will be mutually agreed, or if the parties cannot agree within five (5) Business Days of either party nominating a mediator, will be appointed by the President of the Law Institute of Victoria;
(b) the mediation will be held in Melbourne, Victoria, within a reasonable time following the appointment of the mediator, and unless they agree otherwise the parties will pay equal shares of the mediator’s fees;
(c) if the mediation does not proceed within the agreed timetable or is not successful in resolving the dispute, each party is free to terminate the mediation and pursue any other remedies available to it.
7.3 Except in cases where it seeks urgent interlocutory relief, each party agrees that it will not commence any legal proceedings or take any other action in relation to a Dispute without first following the procedures set out in this clause.
8.1 Where it has not been otherwise excluded by the terms of this Agreement, Our cumulative liability for any Loss or claim sustained by You under or in connection to this Agreement will not exceed an amount which is equal to the greater of:
(a) the Fees paid by You to Us within the six (6) month period before the date on which any claim of liability is made by You; or
(b) the cost of the re-supply of Standard Profiles provided, as applicable.
8.2 You indemnify, hold harmless and defend Us and Our Personnel (together, those indemnified) from and against any Loss incurred or suffered by any of those indemnified in connection with any allegation or claim brought against any of those indemnified by a third party:
(a) due to a breach of this Agreement or the Terms of Service by You; or
(b) that Your Content or Your Listing infringes a third party’s rights (including Intellectual Property) or breaches any applicable law.
(a) Activation Date means the date on which you have set up, completed and activated your online Practice profile on the Platform.
(b) Agreement means this Software User Agreement – Clinic Listings, as amended from time to time.
(c) Booking means a medical appointment that is booked with a Practitioner via the Platform.
(d) Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Melbourne, Australia.
(e) Commencement Date means the date on which you agree to this Agreement.
(f) Content means text, images, photos, audio, video, logos or other branding information (in any form) and all other forms of media, data, materials or communications.
(g) Dispute has the meaning given in clause 7.1.
(h) Dispute Notice has the meaning given in clause 7.1.
(i) Fee means any amounts payable by You to Us under this Agreement and includes the New Patient Fee.
(j) Fee Increase has the meaning given in clause 3.7.
(k) Fee Notice has the meaning given in clause 3.7.
(l) Intellectual Property means all intellectual property rights throughout the world, whether registered or unregistered, including rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and the right to apply for registration of such rights.
(m) Loss means loss, damage, liability, charge, expense, outgoing payment or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
(n) New Patient means a patient who, after 1 August 2022:
(i) makes a Booking with Your Practice for the first time using the HotDoc App or HotDoc website (this does not include bookings through the widget on your own website);
(ii) nominates themselves as a ‘new patient’ on the Platform at the time of making the Booking;
(iii) has not made any previous Bookings with Your Practice (as shown in Your Practice’s practice management software records), and
(iv) attends the relevant Booking and does not reschedule or cancel the Booking.
(o) New Patient Fee means $25 per New Patient, excluding GST.
(p) Patient means a patient or consumer of health services of a Practice.
(q) Personnel means a party’s and its subcontractors’ employees, partners, agents and subcontractors.
(r) Practice means a medical practice, healthcare practice, practitioner or other organised or incorporated body that provides allied healthcare services and has entered into this Agreement with Us for access to and use of the Platform.
(s) Practitioner means (without limitation) an allied health practitioner, who:
(i) is suitably qualified to provide medical or healthcare treatment to a patient; and
(ii) You accept Bookings on behalf of via the Platform.
(t) Standard Profiles means the Platform functionality that enables Practices to create an online Practice profile within a directory on the Platform, accept and manage Bookings, and other necessary ancillary services that enable that functionality.
(u) Subscription Period has the meaning given in clause 5.
(v) Terms of Service means HotDoc’s terms of service for all Practices and their representatives that are published on the HotDoc website at https://practices.hotdoc.com.au/terms-of-services-clinics/, as amended from time to time.
(w) You or Your is a reference to you, a Practice user of Standard Profiles.
(x) Your Content means Content that You submit or transmit to, through or in connection with the Platform, including information that You upload to Your Practice profile or account.
(y) Your Profile means Your online Practice profile on the Platform.