SaaS Terms of Use

CareMonitor products and services are owned and operated by CareMonitor Pty Ltd (ABN 50 616 417 728).

General use of the CareMonitor website located at www.caremonitor.com.au (the “Website”) is governed by the terms accessible here.

These Terms of Use apply only to GP Practices, General Practitioners, Practice Staff, and Care Team Members (as defined below). If you are a user of CareMonitor SaaS who does not fall into any of these categories (for example, if you are an employee of a government department, primary health network, or a health insurer) your access to CareMonitor SaaS is governed by the terms of an Access Agreement between CareMonitor and your employer. You should refer to your employer for information as to your rights and obligations in respect of your use of CareMonitor SaaS.

By accessing and/or using CareMonitor SaaS, you agree to the Website Terms of Use, and these SaaS Terms of Use, which include our Privacy Policy (Terms). You should review our Privacy Policy and these Terms carefully and immediately cease using our Website and services if you do not agree to these Terms. These Terms of Use form an agreement between each Practice and CareMonitor, and each CareMonitor User and CareMonitor (each an “Agreement”).

In these Terms, ‘CareMonitor’, 'us', 'we' and 'our' means CareMonitor Pty Ltd and our related bodies corporate .

These Terms may be amended by CareMonitor from time to time. CareMonitor will use reasonable efforts to ensure that any changes to these Terms are made available to you not less than 30 days prior to taking effect. Your continued use of CareMonitor SaaS following the date such amended terms take effect will be deemed to be acceptance of any amended Terms. If you do not agree to these Terms, or to any update to these Terms, your sole recourse is to cease using CareMonitor SaaS in accordance with this Agreement.

1 About CareMonitor

CareMonitor is a patient care management system delivered to health care professionals as software-as-a-service (“CareMonitor SaaS”) and to patients via a mobile application (“CareMonitor App”). These terms apply to use of CareMonitor SaaS. If you are a patient who has downloaded the CareMonitor App the App Terms of Use apply to you, not these SaaS Terms of Use.

2 Disclaimer

CareMonitor is designed to assist medical practitioners and other health professionals to manage the care of their patients. It is provided on an “as-is” and “as-delivered” basis and all warranties of fitness and merchantability are excluded to the maximum extent possible at law. CareMonitor does not warrant that CareMonitor SaaS will be constantly available, uninterrupted, secure, or error-free.

Practices and CareMonitor Users acknowledge and agree that:

(a) CareMonitor SaaS has not been prepared to meet the Practice’s or CareMonitor Users’ individual needs;

(b) it is the Practice’s or CareMonitor Users’ obligation to ensure CareMonitor SaaS is suitable for the Practice’s or CareMonitor Users’ needs; and

CareMonitor SaaS may contain pre-filled information in respect of certain medical conditions (“Pre-Filled Information”). The Pre-Filled Information has been reviewed by a medical practitioner, however CareMonitor does not make any warranties that such Pre-Filled Information conforms with current best practice and it is the obligation of the treating GP to ensure that all data recorded in a Patient Record and provided to the Patient (whether via the CareMonitor App or otherwise) is appropriate and accurate for the treatment of the Patient.

It is each CareMonitor User’s responsibility to ensure that, and each CareMonitor User warrants that, all information (including all patient information, diagnosis information and treatment information) entered into CareMonitor SaaS by the CareMonitor User is accurate and is appropriate for the relevant patient in the CareMonitor User’s sole judgment and each CareMonitor User indemnifies CareMonitor from and against any and all claims, costs, damage, liability, expense, and loss arising from any breach of this warranty. CareMonitor does not provide medical advice and does not review the data entered by CareMonitor Users. CareMonitor disclaims any liability in connection with the CareMonitor User’s use of CareMonitor SaaS to the maximum extent possible at law.

3 GP Practices, GPs, Practice Staff, and the Care Team

3.1 The CareMonitor System

The CareMonitor system is based around the GP/patient relationship. GPs may use CareMonitor to assist in managing the care of their patients. Practices or other authorised health service providers may create records (“Patient Records”) in CareMonitor SaaS in respect of patients that are being actively treated by a GP attached to that Practice, or are otherwise clients of the health service provider (each a “Patient”).

Full utilisation of the CareMonitor system requires the Patient to download the CareMonitor App to enable the collection, monitoring, and delivery of healthcare information.

CareMonitor SaaS allows other healthcare professionals to be given access to a Patient Record in CareMonitor and to assist in the delivery of healthcare services via CareMonitor. These healthcare professionals are referred to as the “Care Team” and each such healthcare professional is a “Care Team Member”. Each Care Team Member must be expressly invited to join a Patient’s Care Team by, or on behalf of, the treating GP or another person authorised to create a Patient Record under an Access Agreement.

3.2 Permitted Users

Users of CareMonitor must be:

(a) general practitioners who are employed by or contracted to a Practice that has registered with CareMonitor (a “GP”);

(b) other staff of a Practice that has registered with CareMonitor (“Practice Staff”); or

(c) other medical or allied health practitioners who have been invited to join a Care Team by, or on behalf of, a GP or another user of CareMonitor empowered to create Patient Records under an Access Agreement (“Care Team Members”).

The terms of use for each category of user are set out more fully below.

References to “CareMonitor Users” in these Terms apply to all categories of user.

References to “Practice Users” refer to GPs and Practice Staff.

4 GP Practices

4.1 GP Practice Registration

GP Practices must register with CareMonitor before GPs at that practice are able to create Patient records.

A Practice must be registered using the CareMonitor SaaS Practice Signup functionality by a person who has authority to enter into agreements on behalf of the Practice. Upon registration these Terms form a binding agreement between CareMonitor and the Practice, and Practice Users will be permitted to create accounts in CareMonitor SaaS.

Each Practice will be verified by CareMonitor before Practice Users can be attached to the Practice within CareMonitor SaaS. Upon request, Practices must provide CareMonitor with a list of all GPs and Practice Staff employed by the Practice. Practices must provide CareMonitor with such updates of this list as are necessary to ensure the details held by CareMonitor are accurate and current.

Each Practice is liable under these Terms for all acts and omissions made by GPs and Practice Staff attached to that Practice in CareMonitor SaaS.

4.2 Grant of rights to Practices

Subject to compliance with these Terms and payment of the Fees by the relevant Practice (where applicable), CareMonitor grants the Practice and each Practice User attached to that Practice the non-exclusive, non-transferable, non-sublicenseable right to access CareMonitor SaaS via the Website and use the services provided via CareMonitor SaaS. Practices and Practice Staff must not allow any unauthorised person to access or use CareMonitor SaaS.

4.3 Payment Obligations

Certain functionality of CareMonitor SaaS is currently available at no cost. CareMonitor SaaS reserves the right to charge for such functionality at any time.

In respect of paid functionality, unless the Practice is provided with access under a Funding Agreement (as defined below) each Practice will be invoiced in accordance with CareMonitor’s Schedule of Fees, which CareMonitor may change from time to time. Practices will be issued invoices in respect of all services provided by CareMonitor to Practice Staff attached to that Practice.

Each Practice must pay each invoice in accordance with the details set out on that invoice. Failure to pay an invoice by the due date may result in access to CareMonitor SaaS being suspended or terminated for some or all CareMonitor Users attached to that Practice, in accordance with the terms of this Agreement.

5 GPs

5.1 GP Registration

GPs must register to access CareMonitor SaaS. Each GP must be attached to at least one Practice.

When a GP registers and activates its account, it will provide us with personal information such as the GP’s name and email address, telephone number, and Australian Health Practitioner Regulation Agency registration details (or details from another registering body approved by CareMonitor). In addition, GPs must provide details about the Practice or Practices at which they work. Each GP may be attached to multiple Practices. GPs must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.

When a GP registers and activates its account, we will provide the GP with a user name and password. GPs are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name.

To create an account, the GP must be:

(a) at least 18 years of age;

(b) possess the legal right and ability to enter into a legally binding agreement with us;

(d) provide services from at least one Practice; and

(e) agree and warrant to use the Website and CareMonitor SaaS in accordance with these Terms (including the User Rules).

6 Practice Staff

6.1 Practice Staff Registration

When a member of Practice Staff registers and activates its account, we will provide the Practice Staff member with a user name and password. Practice Staff are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name.

To create an account, a Practice Staff member must be:

(f) at least 18 years of age;

(g) possess the legal right and ability to enter into a legally binding agreement with us;

(h) be employed by a Practice; and

(i) agree and warrant to use the Website and CareMonitor SaaS in accordance with these Terms (including the User Rules).

7 Care Team Members

7.1 Invitations to join a Care Team

GPs or other persons authorised to create and maintain Patient Records under an Access Agreement (“Authorised Persons”) may use functionality of CareMonitor SaaS to send an invitation to appropriately qualified health care professionals to join a Patient’s Care Team. The invitation will include a link permitting the Care Team Member to create an account in CareMonitor SaaS.

7.2 Care Team Member Registration

When a Care Team Member registers and activates its account, we will provide the Care Team Member with a user name and password. Care Team Members are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name.

To create an account, a Care Team Member must:

(a) be at least 18 years of age;

(b) possess the legal right and ability to enter into a legally binding agreement with us;

(c) be a registered medical practitioner or other allied health professional in the jurisdiction in which the Care Team Member provides their services; and

(d) agree and warrant to use the Website and the CareMonitor SaaS in accordance with these Terms (including the User Rules).

7.3 Rights to Use

Upon registration and activation of a Care Team Member’s account the Care Team Member will only have access to such Patient Records as they have been expressly linked to by the treating GP (or other authorised Practice User) or Authorised Person. A treating GP (or other authorised Practice User) or other Authorised Person may remove a Care Team Member’s access to a Patient Record at any time.

In the event a treating GP or Authorised Person loses the right to access and use CareMonitor SaaS (whether individually or as a result of that GP’s Practice or Authorised Person’s organisation ceasing to be licensed to use CareMonitor SaaS) the Care Team Member will no longer be able to access Patient Records linked to that GP, Practice, or organisation.

7.4 Provision of Services

Care Team Members must only provide services to Patients located in jurisdictions where the Care Team Member is appropriately qualified and licensed to provide such services.

8 Use of CareMonitor SaaS

8.1 Use for Current Patients Only

Practices must only create records in CareMonitor SaaS in respect of patients that a GP employed by or contracted to the Practice is currently actively treating (each a “Patient”). Practices must not create any Patient Records in respect of Patients that they are not currently actively treating.

8.2 Consent of Patients and Importation of Patient Data

Practices must obtain the consent of each Patient prior to creating a record in respect of that Patient in CareMonitor SaaS. To the extent that a Practice utilises CareMonitor functionality to import patient data from any third party practice management system the Practice must ensure, and warrants to CareMonitor, that such importation does not breach the terms of use of the relevant practice management system, and will not infringe the rights of any third party. Each Practice indemnifies CareMonitor from and against any and all claims, costs, damage, loss, liability, and expense arising from any breach of this warranty by the Practice.

8.3 Addition of Care Team Members

It is each Practice’s obligation to ensure that:

(a) Care Team Members added to a Care Team by Practice Users attached to the Practice are appropriately qualified to provide the relevant services and can legally provide the relevant services to the Patient in the applicable jurisdiction;

(b) the Patient has consented to treatment by the Care Team Member; and

(c) the Patient has consented to the disclosure of the Patient’s personal information (including sensitive health information) to the Care Team Member,

and the Practice indemnifies CareMonitor from and against all claims, costs, damage, liability, loss, and expense arising from a breach of this obligation.

9 User Rules

9.1 Prohibited Activity

Practices and CareMonitor Users must not:

(a) commit any act that would constitute a breach of either the privacy (including uploading or otherwise enabling CareMonitor SaaS to collect private or personal information (including any sensitive health information) without an individual's consent) or any other of the legal rights of individuals;

(b) attempt to undermine the security or integrity of CareMonitor’s systems or networks or, where a service is hosted or provided by a third party, that third party’s system or network;

(c) make any use of CareMonitor SaaS which is unlawful, offensive, indecent, objectionable, harassing, obscene, pornographic, threatening, abusive, defamatory, libellous, fraudulent, tortious, or invasive of another’s privacy or which constitutes a breach of any other of the legal rights of individuals (including with respect of the Spam Act);

(d) use, or misuse, CareMonitor SaaS in any way which may impair the functionality of CareMonitor SaaS, the CareMonitor system, or any other network or system used to deliver CareMonitor SaaS or the CareMonitor System;

(e) attempt to gain unauthorised access to any materials other than those to which the Practice or CareMonitor User has been given express permission to access;

(f) transmit or input into CareMonitor SaaS:

(i) any files that may damage CareMonitor SaaS or any other person’s computing device or software; or

(ii) any illegal or offensive content or content that otherwise infringes any law or regulation; or

(g) attempt to modify, copy, adapt, reproduce, disassemble, decompile, create derivative works from or reverse engineer any computer programs used to deliver the CareMonitor SaaS, the CareMonitor App, or any of CareMonitor’s other products or services.

9.2 Passwords and Usernames to be kept secure

Practices and CareMonitor Users must ensure that all CareMonitor SaaS usernames and passwords are kept secure and confidential. Practices and CareMonitor Users must immediately notify CareMonitor of any unauthorised use of a username or password or any other breach of security.

9.3 Diligence of Care

As between each GP or Care Team Member and CareMonitor it is the GP or Care Team Members’s sole responsibility to ensure that the care and treatment of Patients (including any treatment information or plan provided via CareMonitor SaaS) is safe, appropriate, and accurate, and conforms with all relevant laws and regulations.

9.4 Obligation to Inform

GPs and Care Team Members must discuss with each Patient the appropriate and safe use of all diagnostic and treatment information entered into CareMonitor SaaS or otherwise provided to the Patient via CareMonitor SaaS, including all treatment plans.

9.5 Communication Obligations

CareMonitor Users must only use communication functionality of CareMonitor SaaS to communicate with Patients or other CareMonitor Users for genuine treatment-related issues, and must not use CareMonitor SaaS for any private, non-professional communications unrelated to the Patient’s health care.

9.6 Privacy Obligations

Practices and CareMonitor Users acknowledge that the data held by CareMonitor includes sensitive information (as defined in the Privacy Act) and will ensure that the Practice and CareMonitor User complies with its obligations under the Privacy Act in respect of all personal information (including sensitive information).

9.7 Insurance Obligations

Practices, GPs, and Care Team Members must maintain professional indemnity insurance at an industry-standard level for the duration of the Term of this Agreement.

Practices, and CareMonitor Users must only use CareMonitor SaaS for their own lawful business purposes, in accordance with these Terms of Use, and any other notice sent by CareMonitor or posted on the Website.

10 Fees and Charges

10.1 Fees

Certain elements of the CareMonitor SaaS are available to Practices and CareMonitor Users free of charge. CareMonitor may elect to impose charges for the use of such functionality at any time in its discretion.

Where a Practice is obligated to pay fees for the use of CareMonitor SaaS such fees will be payable on a subscription basis, monthly in advance (unless otherwise agreed). Any failure to make timely payment of such subscription fees will give CareMonitor the right to suspend provision of CareMonitor SaaS to the Practice, all relevant Practice Users, and all attached Care Team Members, or to terminate this Agreement in accordance with its terms.

10.2 Funding Agreements

CareMonitor may enter into agreements with third parties (for example, with primary health networks or government departments) under which the third party pays CareMonitor to provide CareMonitor SaaS access to certain Practices and CareMonitor Users (a “Funding Agreement”).

Where a Practice or CareMonitor User is provided with access to CareMonitor SaaS under a Funding Agreement:

(a) no Fees (other than Additional Service Fees, if applicable) will be payable by the Practice or CareMonitor User; and

(b) in the event that the counterparty to the Funding Agreement fails to make payment of any amounts due under the Funding Agreement, is otherwise in default under the Funding Agreement, or where the Funding Agreement terminates or expires for any reason, CareMonitor will not have any obligation to the Practice or CareMonitor User to continue to provide access to CareMonitor SaaS and may suspend or terminate such access in its discretion.

10.3 GST and Tax

Unless otherwise specified, subscription fees are inclusive of GST and other similar taxes. The Practice is responsible for paying all other taxes and charges in connection with the Practice’s (and all Practice Users’) use of CareMonitor SaaS.

11 Additional Practice Services

11.1 CareMonitor may from time to time agree that a Practice may deliver services via the CareMonitor App (Additional Services). All Additional Services must be performed in a diligent a professional manner by appropriately qualified and registered practitioners.

11.2 Where CareMonitor and a Practice agree to the provision of Additional Services the parties will agree the fees charged by the Practice in respect of such Additional Services (Additional Fees).

11.3 The Additional Fees will be displayed to Patients within the CareMonitor App and Patients may use the CareMonitor App to procure the services.

11.4 CareMonitor will collect the Additional Fees via the CareMonitor App and remit the Additional Fees to the Practice less any fees, commissions, or other amounts agreed between the parties from time to time. Each Practice authorises CareMonitor to collect the Additional Fees on its behalf and appoints CareMonitor as its agent solely for the purpose of collecting the Additional Practice Fees.

11.5 Each Practice acknowledges that a Patient will only be able to procure Additional Services from the Practice identified by the Patient as the Patient’s “Primary Practice” in the CareMonitor App. GPs acknowledge that where they are attached to multiple Practices the fees charged for their services will be the Additional Fees charged by the Practice identified by the relevant Patient as its “Primary Practice”.

12 Support

12.1 Technical Issues

In the case of technical or other availability issues with CareMonitor SaaS you must make all reasonable efforts to investigate and diagnose such issues prior to contacting CareMonitor. If you require additional support you can contact CareMonitor at support@caremonitor.com.au.

12.2 Service Availability

CareMonitor may, on occasion, make CareMonitor SaaS or other elements of the CareMonitor system unavailable for the purposes of performing maintenance or development. CareMonitor will use reasonable endeavours to publish details of such maintenance or development on the Website, and will use reasonable endeavours to ensure that such maintenance or development is conducted during time periods that minimise disruption of the CareMonitor Service to Practices and CareMonitor Users. All users acknowledge that CareMonitor may be required to perform urgent maintenance or development at any time and under such circumstances CareMonitor may make CareMonitor SaaS or any other element of the CareMonitor system unavailable without notice for the purposes of performing such urgent maintenance or development.

13 Term and Termination

13.1 Term

The Term commences upon a Practice or CareMonitor User (as relevant) registering an account and concludes on the date of termination as set out in in this Clause 13.

13.2 Subscription

Where a Practice accesses CareMonitor SaaS on a subscription basis the Term of this Agreement continues for so long as the Practice continues to pay subscription fees, unless it is otherwise terminated in accordance with its terms. A Practice may choose to terminate its subscription at any time by giving CareMonitor 30 days written notice. The Practice will be obligated to pay all subscription fees payable up to the effective date of termination. Where a Practice terminates this Agreement all Practice Users attached only to that Practice will not be able to access CareMonitor SaaS

13.3 Termination for Convenience

A Practice or CareMonitor User may terminate this Agreement at any time upon 30 days written notice to CareMonitor. Where a Practice terminates this Agreement all Practice Users attached only to that Practice will not be able to access CareMonitor SaaS.

CareMonitor may terminate this Agreement at any time on written notice to a Practice or CareMonitor User, however where this Agreement is terminated without cause CareMonitor will use reasonable efforts to provide the Practice or CareMonitor User with not less than 30 days notice of such termination.

13.4 Termination for Breach

If a Practice or CareMonitor User:

(a) breaches any term of this Agreement that is not capable of remedy;

(b) breaches any term of this Agreement that is capable of remedy and does remedy that breach within 7 days of receiving notice of the breach from CareMonitor; or

(c) becomes insolvent or bankrupt, or goes into liquidation, or has a receiver or manager appointed to any of its assets, or makes any arrangement with its creditors,

then CareMonitor may, in its discretion, do any one or more of the following:

(d) terminate this Agreement and the Practice’s or Caremonitor User’s access to CareMonitor SaaS;

(e) suspend the Practice’s or CareMonitor User’s use of CareMonitor SaaS;

(f) suspend or terminate the Practice’s or CareMonitor User’s access to any Data; or

(g) take any of the above steps in respect of any other person who has access to a CareMonitor service or to the Data, including any Patient.

For the avoidance of doubt, where the foregoing applies to any Practice CareMonitor may, in its discretion, exercise its rights in respect of all Practice Users attached to that Practice.

13.5 Accrued Rights

Termination of this Agreement is without prejudice to any rights or obligations of the parties accrued up to and including the date of termination. On termination of this Agreement Practices remain liable for all accrued charges and amounts payable as of the date of termination. Each Practice’s and each CareMonitor User’s right to access and use CareMonitor SaaS ceases immediately upon termination of this Agreement for any reason. In the event that this Agreement is terminated as between CareMonitor and any Practice, CareMonitor may, in its election, suspend or terminate the operation of this Agreement in respect of any CareMonitor User attached to that Practice or to any Patient Record maintained by that Practice in CareMonitor SaaS.

14 Indemnity

14.1 Practice Indemnity

Each Practice indemnifies CareMonitor from and against all claims, costs, damage, liability, loss, and expense arising from:

(a) any breach of this Agreement by the Practice; and

(b) any acts or omissions of a Practice User, or breach of this Agreement by a Practice User, where that Practice User is acting as an employee or service provider of that Practice.

14.2 CareMonitor User Indemnity

Each CareMonitor User indemnifies CareMonitor from and against all claims, costs, damage, liability, and loss arising from:

(a) any breach of this Agreement by the CareMonitor User; and

(b) any acts or omissions of the CareMonitor User in relation to the treatment of any Patient.

15 Intellectual property rights

Unless otherwise indicated, CareMonitor owns or licenses from third parties all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property rights) in the CareMonitor SaaS, the CareMonitor App, other elements of the CareMonitor system and in all of the material (including all text, graphics, and logos) made available on any of the foregoing (Content).

Practices’ and CareMonitor Users’ use of CareMonitor SaaS and use of and access to any Content does not grant or transfer any rights, title or interest to Practices or CareMonitor Users in relation to CareMonitor SaaS or the Content. However CareMonitor grants Practices and CareMonitor Users the right to access CareMonitor SaaS and view the Content on the terms and conditions set out in this Agreement and, where applicable, as expressly authorised by us and/or our third party licensors.

Any reproduction or redistribution of CareMonitor SaaS or the Content is prohibited and may result in civil and criminal penalties. In addition, a Practice or CareMonitor User must not copy the Content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.

All other use, copying, reproduction, or reverse engineering of CareMonitor SaaS, the Content or any part of it is prohibited, except to the extent permitted by law.

16 Confidentiality

Each party will preserve the confidentiality of all Confidential Information of the other party obtained in connection with this Agreement. Neither party will disclose any Confidential Information of the other party other than where the other party has given its prior written permission or where the Confidential Information must be disclosed by law.

“Confidential Information” means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by the Practice or Practitioner User or CareMonitor or which is otherwise learned or accessed by the Practice or Practitioner User or CareMonitor as a result of entering into this Agreement.

17 Data

All information entered into CareMonitor SaaS by Practice Users, including each Patient Record, remains the property of the Practice.

Upon termination of this Agreement for any reason, CareMonitor may retain patient and other data as required by law or the terms of any relevant insurance policy.

Each Practice agrees that CareMonitor may compile and de-identify any information it holds and use such de-identified data for any purpose. CareMonitor will comply with OAIC Guidelines in connection with any deidentification.

18 Limitation of Liability

18.1 To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall CareMonitor be liable for any direct or indirect loss, damage or expense, loss of profits, loss of revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, loss of business, or any other loss not arising naturally from the relevant breach – irrespective of the manner in which it occurs – which may be suffered due to a Practice’s or CareMonitor User’s use of CareMonitor SaaS or any other part of the CareMonitor system, or as a result of the inaccessibility of CareMonitor SaaS or any other part of the CareMonitor system and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up-to-date.

18.2 If a Practice or CareMonitor User is not satisfied with CareMonitor SaaS or the terms of this Agreement, the Practice or CareMonitor User’s sole remedy is to cease using CareMonitor SaaS and to terminate this Agreement in accordance with Clause 13.2.

18.3 Each Practice and CareMonitor User acknowledges that CareMonitor SaaS is delivered via a web application and is dependent upon web access for functionality. Accordingly, and without affecting any other limitation of liability set out in this Agreement, CareMonitor will not have any liability to a Practice or CareMonitor User in the event that the Practice or CareMonitor User is unable to access CareMonitor SaaS or any other element of the CareMonitor system as a result of:

(a) any internet outage;

(b) any failure of the Practice’s systems;

(d) the failure of any service provided by a technology provider of CareMonitor (such as a cloud service provider).

18.4 Notwithstanding the terms of this Clause 18, and subject to Clauses 18.5 and 18.6 below, to the extent that CareMonitor has any liability to a Practice or CareMonitor User, CareMonitor’s total aggregate liability to that Practice or CareMonitor User in connection with any breach of this Agreement by CareMonitor will be limited to the total amount of Fees actually paid to CareMonitor by the Practice or CareMonitor User under this Agreement.

18.5 To the extent that CareMonitor SaaS is in breach of any statutory warranty or guarantee that cannot be excluded by law the sole remedy of the Practice or CareMonitor User will be (at CareMonitor’s sole discretion):

(a) the resupply of the CareMonitor SaaS services to the Practice or CareMonitor User; or

(b) the payment of the cost of having the services supplied to the Practice or CareMonitor User again.

18.6 Notwithstanding anything else set out in this Agreement each Practice agrees that in the event of any loss or corruption of Practice data or any other data held by CareMonitor on the Practice’s or any CareMonitor User’s behalf (including Patient Records) CareMonitor’s sole liability to the Practice will be limited to using reasonable efforts to try to recover that data from CareMonitor’s available backups.

19 General

19.1 Entire Agreement

These SaaS Terms of Use, together with the Website Terms of Use and Privacy Policy, and the terms of any other notices or instructions given to Practices or CareMonitor Users under these SaaS Terms of Use supersede all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between the Practice and CareMonitor or CareMonitor User and CareMonitor relating to the use of CareMonitor SaaS and the other matters dealt with in these Terms of Use.

To the extent of any inconsistency between these SaaS Terms of Use and any other terms, these SaaS Terms of Use will prevail.

19.2 No Assignment

A Practice or CareMonitor User may not assign or transfer any rights under this Agreement to any third party without CareMonitor’s prior written consent.

19.3 Severability

If any part or provision of these SaaS Terms of Use is invalid, unenforceable, or in conflict with any law, that part or provision is excised from this Agreement and the remainder of the Agreement will be unaffected.

20 Jurisdiction and governing law

Your use of the website and these Terms are governed by the law of New South Wales and you submit to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.

Last Updated: 19 October 2020