Please make sure to also check clause 16 at the end of this document to see terms that may apply specifically to the territory in which you reside, if outside Australia.
1.1. To access the Services, you must set up an account.
(a) You agree and acknowledge that:
(i) all information you provide Better Clinics will be true, accurate, current and complete; and
1.2. If your Subscription permits, you may add your other team members to your account for them to access the Services.
1.3. You are responsible for maintaining the confidentially of your account and password and for all activity on or through your account (including unauthorised access by third parties) and you must not sell, transfer, license or assign your account, username, or any account rights. Better Clinics may charge a fee to reset your password.
1.4. You must notify Better Clinics immediately of any unauthorised use of your account. Better Clinics are not liable for any loss or damage arising in connection with any unauthorised use of your account.
2. Trial Period
2.1 If you are first time user of the Services, Better Clinics may provide you with access to the Services for a 30 days free of charge (Trial Period).
2.2 During the Trial Period:
(a) the Services will be provided for evaluation only;
(b) to the extent permitted by law and subject to consumer laws applicable to you, the Services are provided “as-is” and “as-available”, Better Clinics does not make any warranties and exclude all liability arising from your use of the Services, including loss of data or Your Data; and
(c) Better Clinics may terminate your access to the Services at any time in Better Clinic’s sole discretion.
2.3 At the end of the Trial Period:
(d) you must pay the Fees as defined in Section 5.1 to continue using the Services;
(e) any data entered or collected from the Services will be lost unless you purchase a Subscription or you export such data by printing reports prior to the expiry of the Trial Period.
3.1 Better Clinics grants you a non-exclusive, non-transferable, limited licence to access and use the Services in accordance with your Subscription, including any new releases and updates of Services Better Clinics may make available from time to time.
3.2 Better Clinics may upgrade or update the Services at any time in its sole discretion.
3.3 You acknowledge and agree that:
(a) the speed of internet access will vary and may be affected by factors beyond Better Clinic’s control; and
(b) the Services do not constitute advice and you should seek legal, accounting, medical or other relevant independent professional advice before taking any action in reliance on the Services.
3.4 You are solely responsible for:
(a) determining whether the Services are suitable for your needs;
(b) protecting Your Data, including backing-up Your Data in addition to us and taking appropriate measures to protect Your Data from accidental, unlawful or unauthorised access, use or disclosure;
(c) complying with all applicable accounting, tax and other laws. You must check that storage of and access to Your Data will comply with all laws, including any laws requiring you to retain records.
3.5 You must not:
(a) use or access the Services in any unlawful way or for any illegal purpose;
(b) use the Services in a manner that is excessive or unusual or creates an unfair burden on the provision of the Services, or similar services, to others (as judged in Better Clinic’s reasonable discretion);
(c) infringe the intellectual property rights, privacy or confidentiality of any third party;
(d) impersonate any third person or attempt to impersonate any person when using the Services;
(e) use the Services to distribute, send or publish any e-newsletters, bulk emails, unsolicited electronic messages or other forms of “spam”;
(f) knowingly transmit any virus, worm or other disabling or malicious feature, or attempt to interfere with the operation of the Services;
(h) on-sell, transfer, rent, lease or assign any copy of the Service to any third-party;
(i) violate or attempt to violate any aspect of the security of the Services; or
(j) modify, reverse engineer, disassemble, decompile, copy, or cause damage, disruption, unintended effect to, or interfere with, any portion of the features available through, or software in connection with Better Clinic’s provision of the Services.
4.1 Better Clinics may update and carry out scheduled maintenance of the Services, so Better Clinics may have to suspend access to, or functionality on, the Services from time to time. Better Clinics will notify you of any scheduled maintenance that may interrupt the Services.
4.2 Better Clinics will provide you with support in accordance with its technical support policy available on the Website for which additional fees may be charged. If you encounter any errors with the Services, you must contact Better Clinics by phone or using the support section on the Website.
4.3 If you initiate a support request, you grant Better Clinics direct access to your account to provide you with such support.
4.4 You acknowledge Better Clinics may charge you for fault resolution services at Better Clinic’s then current rates if Better Clinics responds to a request from you that is not covered by the technical support policy.
5. Fees and payment
5.1 In consideration of Better Clinic’s provision of the Service, you agree to pay Better Clinics the fees as set out on the Website for the Subscription you have selected, plus any applicable taxes (Fees). Better Clinics may change the Fees payable on notice to you.
5.2 Your Subscription will automatically renew, unless you give Better Clinics notice prior to the end of the current term.
5.3 You may upgrade or downgrade your Subscription, however you will not be given a refund for a Subscription downgrade.
5.5 You must nominate to have the Fees debited from your nominated credit card and you authorise Better Clinics to charge the Fees to your nominated account each month.
5.6 If you fail to pay an invoice by the due date (as a result of a dishonoured payment on your nominated credit card), Better Clinics may charge interest on overdue amounts at the rate of 1.5% per month, or the maximum amount permitted by law (whichever is greater) with interest accruing daily, and/or suspend your account and access to the Services until all overdue amounts are paid.
6. Third Party Products
6.1 The Services may contain features that interface with Third Party Products. If Third Party Products form part of your Subscription or Services, the following will apply:
(a) your use of, and access to, any Third Party Products is subject to separate terms and conditions issued by the third party supplier of those products from time to time;
(b) if requested, Better Clinics will liaise with the third party supplier of the Third Party Products on your behalf;
(c) Better Clinics makes no representations or warranties in relation to any Third Party Products;
(d) Better Clinics may suspend your use of, or access to the Third Party Products if you breach the terms and conditions applicable to the Third Party Products or if Better Clinics no longer uses such Third Party Products.
6.2 You acknowledge and agree Better Clinics will make Your Data available to the providers of the Third Party Products.
7. Intellectual property rights
(c) You consent to Better Clinics naming you as a client and reproducing your business name and logos for marketing and publicity purposes.
8. Confidentiality and privacy
8.3 Neither party may use or disclose the Confidential Information except:
(a) to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this clause 8;
(b) as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
(c) with the other party’s prior written consent.
9.1 Subject to clause (c) and to the fullest extent permitted by law:
(a) the Services are provided “as-is” without warranty of any kind or representations regarding the use, performance or results of the use, of the Services;
(b) in no event shall Better Clinics be liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise:
(i) for any Third Party Products;
(ii) for any Consequential Loss, indirect, incidental, punitive or special losses of any kind, nor for any loss of data, profit, business interruption or a security breach); and
(iii) any loss arising from activity on your account, including additional usage fees, loss of data or downtime caused by deliberate, inadvertent or unauthorised access by any party, or files that you upload, transmit, install or otherwise use in connection with the Services; and
9.2 To the fullest extent permitted by law, where a mandatory term or statutory right cannot be waived, Better Clinic’s liability is limited, at Better Clinic’s option, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods; or
(iv) the payment of the cost of having the goods repaired; or
9.3 if the breach relates to services:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
9.4 General information relating to medical conditions, treatments or public or private health issues may be posted on the Website or accessed by the Services (Health Information). The information available on or obtained via the Website or Services is not intended or implied in any way to usurp, take precedence over or to form the basis of, appropriate and timely medical consultation, diagnosis and treatment by a qualified doctor, physiotherapist or other health professional. You acknowledge that you have sole responsibility for ensuring that your patients undertake the correct exercises and obtain the correct treatment. We disclaim all liability in respect to Health Information.
10. Security and Data
10.1 Better Clinics will use reasonable precautions to prevent unauthorised disclosure of Your Data, but Better Clinics shall not be responsible for any breach of its systems by any unauthorised third party unless such breach arises as a result of Better Clinic’s gross negligence.
10.2 Better Clinics does not represent or warrant that the Services are entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and that Better Clinics has no control over the privacy of any communications or the security of any data outside of Better Clinic’s internal systems.
11. Suspension and termination
11.1 You may terminate the Services at any time by electronic notice via the Website.
(a) fail to remedy a breach within 7 days’ notice from Better Clinics requesting the breach be remedied;
(c) becomes insolvent or enter into liquidation to the extent permitted by law.
(a) you must pay all outstanding Fees to Better Clinics
(b) you must pay any reasonable costs incurred by Better Clinics as a result of the termination (including third party cancellation fees and administrative costs), except where you have terminated for our breach;
(c) on Better Clinic’s request you must securely destroy Better Clinic’s Confidential Information; and
(d) Better Clinics will not allow you access to Your Data and you must download Your Data prior to termination or expiration. .
12. Force Majeure Event
12.1 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
(a) if posted by Better Clinics on the Website, within 6 hours of the time of the post; or
(b) if sent by email or by electronic message sent via the Services, when the sender receives an automated message confirming delivery or within 24 hours of that message being sent (as recorded on the device from which the sender sent the message).
13.3 If you want to contact Better Clinics you may do so by sending a message to Better Clinics via the Website or emailing Better Clinics at email@example.com.
14. General terms
15. Definitions and interpretation
(a) Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:
(i) is identified as confidential or ought to have been known to be confidential; and
(ii) relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,
(c) Consequential Loss means any loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
(d) Content means all exercises, advice sheets, videos, information, text, material, graphics available via the Services or Website;
(e) Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
(ii) is beyond the reasonable control of that party.
(c) Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, trade secrets, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.
(e) Better Clinics means the business owned by Reckon Limited (ACN 003 348 730).
(f) Services means the online accounting software available on the Website.
(g) SMS Service means SMS messages of up to 149 characters which you may send via the Services.
(h) Subscription means the subscription type selected by you on the Website.
(i) Third Party Products means any third party products and/or services, including band data feeds.
(j) Your Data means the data, content, software, documents, files, information and materials you store, develop, host or publish on Better Clinic’s infrastructure using the Services.
(k) Website means Better Clinic’s websites, including www.betterclinicsapp.com.
(l) a reference to a person includes a natural person, corporation, unincorporated association or partnership;
(o) the singular includes the plural and vice versa;
(p) other grammatical forms of a defined word or expression have a corresponding meaning;
(q) “including” and similar words do not imply any limitation;
(r) a reference to any agreement or document is a reference to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time; and
(s) a reference to a statute includes a reference to that statute as amended or replaced from time to time.
16. Territorial clauses
16.1 United Kingdom
(b) For the purposes of clause 5.1 you acknowledge and accept that you shall be responsible for the payment of all VAT (and/or similar sales or transaction taxes) that may be chargeable on the Fees.
(c) Your Data may contain data which is classified as be ‘personal data’ in the United Kingdom (as defined by Directive 95/466/EC or by Regulation 2016/679, the ‘GDPR’). Where that is the case both parties agree and acknowledge that you are and shall remain the ‘data controller’ and that Better Clinics shall be the ‘data processor’.
(f) Your Data may be stored in facilities which are located outside of the European Economic Area, by using the Service you are agreeing that Your Data may be sent to such facilities and that you have obtained from all data subjects whose personal data you may send to Better Clinics all necessary consents and permissions to permit it to store such data in this way.
(g) In the event that any data subject chooses to exercise any statutory right in relation to any personal data contained within Your Data, Better Clinics shall grant all reasonably requested assistance to you in order to assist you in complying with your statutory obligations.
(h) You undertake to indemnify and hold harmless Better Clinics against all costs, claims, damages or expenses incurred by it which may be caused by any failure by you to comply with any obligation set out in this clause 16.1. You further agree that Better Clinics is reliant upon you for direction as to the extent to which it is entitled to use and process Your Data; accordingly Better Clinics shall not be liable for any claim brought by any data subject which arises from any action or omission, to the extent that such action or omission resulted directly from your instructions.
16.2 New Zealand