Marc Trading Pty Ltd T/A SimpleClinic Online (us, "SimpleClinic")
ABN: 76 627 121 920
65 Grand Plaza Drive
Browns Plains QLD 4118
Phone: +61 7 3040 0385
You, the customer.
Your details are those provided to us when you signed up for your SimpleClinic account.
1. About this agreement
SimpleClinic provides cloud-based practice management for naturopaths ("the SimpleClinic application"), giving you all the tools you need to integrate your marketing, manage your clinic, book appointments, invoice your patients, and streamline prescriptions and dispensing.
This agreement commences on the date when you are first provided with access to the SimpleClinic application ("the Commencement Date.")
Your acceptance of these terms is also binding on any entity on whose behalf you registered to use the SimpleClinic application, and any person or organisation that uses your right of access to the SimpleClinic application. It is your responsibility to keep your access information secure and ensure that only you and those you trust are authorised to access your SimpleClinic account. This is required not only by your agreement with us, but also by your professional duty of confidentiality to your patients.
(1) Access to the SimpleClinic application is provided on a monthly basis, for which you pay month by month in advance.
(2) At the end of each month, this agreement automatically renews for a further monthly term and continues to do so until either party provides the other with written notification of non-renewal.
(3) Notification of non-renewal must be provided at least fifteen days prior to your next monthly payment date. If your notification is received later than this, your next monthly payment will be processed, and your notification will take effect in the month following.
(4) Renewal of this agreement pursuant to clause 2(2) is subject to our consent, which will not unreasonably be withheld. However, you agree that we may require an adjustment of the Charges set out in clause 8 as a condition of providing our consent to renewal, and It will not be considered unreasonable for us to review our charges and raise them over time.
(5) If there is to be an adjustment of the Charges, we will notify you by email at least thirty days in advance. If you do not consent to the adjustment of Charges, it is your responsibility to provide us with a notification of non-renewal in accordance with clause 2(3). If you choose not to renew, it is your responsibility to find a new platform and arrange for migration of your data before your SimpleClinic account expires.
3. Provision of access
(1) Under the terms of this agreement, we will provide you with access to the SimpleClinic application ("your SimpleClinic account") and any other services specified in this agreement, including the Document Library, troubleshooting and technical support ("our Services").
(2) You agree that you may only acquire and make use of your SimpleClinic account and our Services for the sole purpose of meeting the internal business needs of your practice.
(3) In order to fulfil our obligation and provide you with your SimpleClinic account and our Services, we may require you to procure certain consents for us. This may include:
a. your patient's consent to your using the SimpleClinic application to access, store and disclose their personal and sensitive information (Patient Data); and
b. your business or organisation's consent to your using the SimpleClinic application to access, store and disclose business information, patient lists, trade secrets, and other confidential information (Customer Data).
(4) Our access to Patient Data and Customer Data is dealt with under clause 4 Data and Access, and clause 13 Confidentiality. You agree that:
a. you are responsible for procuring any required consent relating to Patient Data and Customer Data for us ("Consent");
b. we are entitled to assume that Consent has been procured;
c. our supply of your SimpleClinic account and our Services is conditional on Consent having been procured; and
d. you will comply with any reasonable request we may make for confirmation that Consent has been procured.
(5) We may configure the SimpleClinic application and determine the nature and manner of its internal technical support at our discretion. Our intention in doing so is to maximise convenience for our customers without compromising the safety of Patient Data and Customer Data. You agree to comply with any access and use procedures (including as to communications and security) that we may notify you of from time to time.
(6) You agree to use your SimpleClinic account and our Services only as expressly permitted by this agreement and will not do or permit anything to be done in respect of the SimpleClinic application or our Services that is contrary to or outside of the terms of this agreement. This includes:
a. removing or modifying any of Simple Clinic's markings or branding on the SimpleClinic application;
b. making programs or materials resulting from the SimpleClinic application or our Services available to any third party for use in the third party's business without our prior written consent, and subject to any requirements that we may impose;
c. commercially exploiting the SimpleClinic application or our Services (including by making it available to any third party) without our prior written consent and subject to any requirements that we may impose; and
d. distributing or transmitting any part of the SimpleClinic application or our Services by any means without our prior written consent and subject to any requirements that we may impose.
(7) You shall use reasonable efforts to prevent unauthorised third parties from accessing your SimpleClinic account, the SimpleClinic application or our Services.
(8) You agree not to make or permit any use of your SimpleClinic account, the SimpleClinic application or our Services in a way which is unacceptable. Use is unacceptable if:
a. it involves anything which is false, defamatory, harassing or obscene;
b. it involves sending unsolicited electronic messages (spam);
c. it would involve the contravention of any person's rights (including intellectual property rights);
d. it may offend any laws;
e. it may otherwise be regarded by us, on reasonable grounds, to be unacceptable (and we may from time to time notify you of circumstances which we regard as unacceptable);
f. it involves any fraudulent activity; or
g. if it involves the sale or promotion of any illegal business activities or prohibited products or services.
(9) You agree that if we have reasonable grounds for believing you have significantly breached this agreement, we may immediately suspend all or any part of your SimpleClinic account, the SimpleClinic application and our Services, and remove or disable access to anything or anyone that contravenes the restrictions in clauses 3(6)-(8) or is otherwise in breach of this agreement.
4. Data and access
(1) We agree, in accordance with clauses 3(3)-(4) (Consent), clause 5 (Document Library) and clause 13 (Confidentiality) that the Patient Data and Customer Data is your Confidential Information.
(2) You agree that you have sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all the Customer Data, and that all Patient Data complies with your obligations under the Privacy Act 1988 (Cth) and the rules of your professional association.
(3) You also agree that there are limitations to the SimpleClinic application's ability to assist in your business. You agree that the SimpleClinic application:
a. does not detect faulty or aberrant input data;
b. does not take into account all of the matters that should be considered in decision making regarding matters of relevance to your business; and
c. should not be used as a substitute for your independent and appropriately qualified decisions regarding matters of relevance to your business.
(4) You warrant that you will not make or permit any access to or use of the SimpleClinic application unless you have in place appropriate strategies, in addition to (and not reliant on) your use of the SimpleClinic application and our Services, to manage all risks attendant on your business.
(5) You are responsible for providing your own telecommunications equipment, networks, systems and any other facilities that you use or require for accessing and making use of your SimpleClinic account and our Services ("Customer Access Facilities"), other than the SimpleClinic application and any specific facilities we agree to make available under this agreement.
(6) You warrant and agree that you are responsible for ensuring that all Customer Access Facilities meet the security standards that we require, including compliance with any updates we notify you of from time to time, and are reasonably appropriate for use in conjunction with the SimpleClinic application and our Services.
(7) It is your responsibility to ensure that your Customer Access Facilities are up-to-date and remain free from any circumstances (including viruses) which may adversely affect SimpleClinic, the SimpleClinic application or our Services. It is an essential term of this agreement that, at all your times, your computer has current and up-to-date antivirus software, malware protection and an updated operating system, as this is required for our compliance with the Payment Card Industry Data Security Standards.
(8) Subject to clause 5 (Document Library) and clause 13 (Confidentiality) we own all rights, including intellectual property rights, in anything developed or delivered under this agreement.
(9) Third party facilities, including software programs, may be necessary or appropriate for access to or use with the SimpleClinic application. Examples include your website, accounting programs and payment gateways. You agree that your right to make any use of such facilities is governed by the terms of the relevant third-party licence or services agreement and not by this agreement.
5. Document Library
(1) Your SimpleClinic account includes access to a Document Library feature that allows you to send documents to your patients.
(2) When uploading documents to the Document Library you take full responsibility for ensuring that:
(a) all documents are free of viruses and malware; and
(b) your intended use of the documents does not infringe the intellectual property rights of any third party.
(3) Documents uploaded to the Document Library are included in the definition of Customer Data.
(5) Without limiting clauses 3(3)-(5), you agree to provide any information, and to obtain any consents, relevant to your use of the SimpleClinic application, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in your Customer Data or Patient Data.
7. Compliance with law
(1) We are not liable to you for any loss or damage you may suffer that results from your misuse of your SimpleClinic account, or any of our Services, in breach of this agreement or contrary to any obligations, including those owed under contract or any laws.
(2) We may (but are not obliged to) make the information we hold on your behalf available to any person who provides us with reasonable evidence of their right to access it, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom the information pertains. This information includes:
(a) Customer Data;
(b) Patient Data; and
(c) any other information (in any form) relevant to your relationship with us under this agreement.
(3) You agree to indemnify us against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of:
(a) our collection, use, disclosure, storage or other involvement with your Patient Data and Customer Data and any other information (in any form) relevant to your relationship with us under this agreement; and
(b) acting in accordance with subclause 7(2).
(1) In this agreement, "Charges" means the Charges for your SimpleClinic account and our Services as advised by us in writing, from time to time.
(2) You agree that we may also autobill you for additional Charges as set out in Schedule 1 or as advised from time to time:
(a) where you have requested us to supply you with goods or services not expressly required by this agreement, such as SMS messages,
(b) (without limiting our remedies at law) where we incur reasonable costs or are reasonably required to carry out work in connection with your non-performance of this agreement, including to reactivate an account that was closed for non-payment, and
(c) any other commonly incurred additional Charges, including fees charged by our financial institution for payments that are declined due to insufficient funds or any other reason.
(3) You agree to provide us with your credit card details and authorise us to automatically bill you on a monthly basis for the Charges and any other amount payable under or in connection with this agreement.
(4) If you dispute the whole or any portion of an amount charged by us to your credit card, you agree to notify us in writing (within seven days of receipt of invoice) of your reasons for disputing the amount charged. We will contact you within 7 days to discuss the disputed charges and attempt to negotiate a mutually satisfactory resolution.
(5) If it is resolved that some or all of the amount in dispute ought not to have been charged, we will refund the agreed amount.
(6) If a payment that is properly due to us is rejected by your financial institution due to insufficient funds in your account, or for any other reason, you agree to pay us that amount in full, plus an administration fee of \$25.00.
(7) We are registered for GST in Australia, and amounts charged to Australian customers are inclusive of GST. "GST" means the same as 'GST law' in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other goods and services tax, or any tax applying to this agreement in a similar way.
(8) If you fail to pay the Charges by the due date and have not raised a dispute, we will deactivate your account. You will need to contact us, pay any overdue invoices, and pay a reactivation fee (as set out in Schedule 1) for your account to be reinstated. The reactivation fee covers our reasonable administrative costs.
9. Conditions of Licence
(1) You warrant to us that all material stored in the SimpleClinic application:
(a) complies with the terms of this agreement;
(b) does not contain data that we might reasonably regard as inappropriate, inaccurate, defamatory or otherwise offensive;
(c) does not infringe any law, regulation, standard or relevant industry code; and
(d) does not infringe any intellectual property rights of any person.
(1) Without limiting the generality of any other clause in this agreement, we may terminate this agreement, or suspend performance of our obligations under this agreement for a specified period, immediately by notice in writing if:
(a) you are in breach of any term of this agreement and such breach is not remedied within seven days of notification;
(b) you are, or are likely to become, involved in any form of insolvency administration;
(c) you are in a partnership that dissolves, or appears likely to dissolve;
(d) you die; or
(e) you cease or threaten to cease conducting your business in the normal manner.
(2) You agree that on expiry or termination of this agreement for any reason, all of your rights in respect of your Simple Clinic account shall end.
(3) You agree and acknowledge that we have no obligation to retain any information relating to you (including Customer Data and Patient Data) and that all such information may be irretrievably deleted by us after one month from the date of any suspension, termination or expiry of this agreement.
11. Implied terms
(1) Subject to clause 11(2), any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
(2) Where legislation implies in this agreement any condition or warranty that cannot be modified or excluded, such as consumer guarantees under Australian Consumer Law, that condition or warranty will be deemed to be included in this agreement. However, our liability for any breach of such condition or warranty will be limited to supplying the services again.
(3) To the full extent permissible by law, we do not provide any guarantee in relation to the performance of your business as a result of using the SimpleClinic application or our Services. This is because the performance of your business is reliant on a wide range of factors that are outside our knowledge or control.
12. Our Liability
(1) To the extent permitted by law, we exclude all liability in respect of any injury, loss or damage (including loss of profits, loss of goodwill, loss of data and any special, direct or consequential loss or damage) which you or your business may suffer. or which may arise in any way in connection with this agreement or your use of your SimpleClinic account. This exclusion extends to any officer, agent, employee or related entity of ours.
(2) If any liability is not able to be excluded by law, the total amount of our liability for all claims in aggregate, will be limited to the total amount you have paid us for the relevant period, and you accept that this will be your exclusive remedy. In no event will we be liable to you for consequential or special damages.
(3) You agree that this agreement contains the whole agreement between us, and you have not relied on any representation we have made which has not been stated expressly in this agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by us. This is because our advertising material may contain inadvertent errors, and may not reflect the most recent version of the SimpleClinic platform. If you have any questions or concerns, please ask us before proceeding.
(4) You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in this agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
(5) Where you have suffered any loss or damage (including legal costs, expenses or liability) caused by your own breach of your obligations under this agreement, or any wilful, unlawful or negligent act or omission on your part, you shall at all times indemnify us and hold us harmless, including our officers, employees, contractors and agents.
(1) Your Confidential Information is your Customer Data and Patient Data.
(2) Our Confidential Information includes:
(a) information relating to the SimpleClinic application; or
(b) information relating to our personnel, policies, business, systems and data that is not in the public domain; and
(c) information relating to the terms on which the Services are to be provided to you pursuant to this agreement;
(3) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information, unless legally compelled to do so.
(4) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.
(5) Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(6) This clause will survive the termination of this agreement.
14. Force Majeure
(1) We shall not be liable for any delay or failure to perform its obligations under this agreement if such delay is due to circumstances beyond our reasonable control. If a delay or failure is caused or anticipated due to such circumstances, we will act quickly to address the problem. In the unlikely event that an issue is unable to be resolved within 48 hours, we will contact all affected customers to explain the situation and available options.
(2) If this agreement is terminated pursuant to the preceding subclause, we are not liable to refund any moneys paid by you pursuant to this agreement.
(3) For the purposes of this clause, circumstances beyond our control (otherwise known as Force Majeure) include:
(a) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities (such as the telecommunications systems you use to access your SimpleClinic account); and
(b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes.
This agreement is personal to you. You must not assign, whether in whole or part, the benefit of this agreement or any of the rights or obligations contained in it.
No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
18. Dispute resolution
(1) A party will not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this agreement ('dispute') unless it has complied with this clause.
(2) A party claiming that a dispute has arisen must notify the other parties, giving details of the dispute.
(3) During the twenty one day period after a notice is given under clause 18(2) (or longer period agreed in writing by the parties to the dispute) ('initial period') each party to the dispute ('disputant') must use its best efforts to resolve the dispute.
(4) If the disputants are unable to resolve the dispute within the initial period, each disputant agrees that the dispute must be referred for mediation in accordance with the Mediation Rules of Queensland, at the request of any disputant, to:
(a) a mediator agreed on by the disputants; or
(b) if the disputants are unable to agree on a mediator within seven days after the end of the initial period, a mediator nominated by the Qld Complaints Commission.
(5) The role of any mediator is to assist in negotiating a resolution of the dispute. A mediator may not make a decision that is binding on a disputant unless that disputant has so agreed in writing.
(6) Any information or documents disclosed by a disputant under this clause:
(a) must be kept confidential; and
(b) may not be used except to attempt to resolve the dispute.
(7) Each disputant must bear its own costs of complying with this clause and the disputants must bear equally the costs of any mediator engaged.
(8) After the initial period, a disputant that has complied with this clause 18 may terminate the dispute resolution process by giving notice to each other disputant.
(1) This agreement is governed by the law in force in Queensland, Australia.
(2) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland, Australia, and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
(3) Any provision of this agreement which refers to the words "include," "includes," or "including" shall be deemed to be followed by the words "without limitation".
(4) A notice, approval, consent or other communication in connection with this agreement must be in writing unless expressly specified otherwise. Written communication for this purpose expressly includes email.
(5) Any document in an action including any writ of summons or other originating process or any third or other party notice may be served on a party by being delivered to or left for that party at its address for service of notices. For us, that is the address specified in this agreement. For you, that is the address you gave us when you set up your SimpleClinic Account. It is your responsible to ensure that your address and other contact details are kept current and up to date.
(6) Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received.
(7) Any present or future legislation which operates to vary an obligation or right, power or remedy of a party in connection with this deed is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
(8) References to any party to this deed shall include the executors, administrators, successors and permitted assigns of that party.
(9) Words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency.
(10) Headings included in this agreement are for convenience only and shall be disregarded in the construction of this agreement.
Schedule 1 -- Additional Charges
|Reason for incurring charge
|SMS services (autobilled monthly)
|10c ex GST per 160 characters
|Reactivation of SimpleClinic account closed due to non-payment
|Dedicated mobile phone number for SMS
|$8.50 ex GST per month
|Failed payment fee (where a payment is declined by your financial institution for any reason)