MyHealth1st – Practitioner Terms and Conditions
22 January 2018
1st Group Limited (ABN 25 138 897 533) (1stGroup) owns, operates and provides Services through the MyHealth1st online appointment booking platform as well as through other related online digital platforms.
These Practice Member Terms and Conditions (T&Cs) set out the terms on which You may access and use the Services provided by 1stGroup. These T&Cs, accompanied by a completed Form, constitute the Practice Member Agreement (Agreement) between 1stGroup and each applicable Practice Member. If Your Services are attached to a third party directory or portal any additional terms of those third party services will also apply.
means the MyHealth1st online healthcare platform including MyHealth1st.com.au, and any related platforms operated by 1stGroup.
means 1stGroup’s Acceptable Use Policy set out in the Schedule to this Agreement.
means an online account made available to a Practice Member by 1stGroup to enable the Practice Member to access the Services and to manage among other things its profile and Appointment Book Calendar and access other digital services provided by 1stGroup.
Appointment Book Calendar
means the Appointment Book Calendar through which the Practice Member publishes their available appointments and which is able to record appointments with the Practice Member made by Public Users through the Website.
means all trade secrets, ideas, know-how, concepts, methods of working, management, operations, procedures, financial and business information whether in writing or otherwise relating to the parties, but does not include information that is in the public domain for reasons other than unauthorised disclosure.
Data Use Policy
means 1stGroup’s Data Use Policy in relation to the MyHealth1st Platform set out in the Schedule to this Agreement
means the amounts invoiced to a Practice Member by 1stGroup or otherwise payable by a Practice Member to 1stGroup for the Services.
means the online registration pages or other 1stGroup registration forms or agreement a Practice Member completes in signing up for the Services, together with the information provided in them, and also includes any 1stGroup form submitted by a Practice Member requesting services from 1stGroup, and any variation to the Form agreed by 1stGroup.
means the initial term of this Agreement as defined in clause 8.1.
means being at risk of being unable to pay the debts as they become due, and includes any form of bankruptcy or administration.
Intellectual Property Rights
means all intellectual property rights throughout the world, including rights in relation to any copyright (including under the Copyright Act 1968 (Cth)), patents, inventions, designs, trademarks, domain names, trade secrets, know-how, and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967 (whether registered or unregistered), and any application or right to apply for registration of any of those rights.
means existing patients and clients of a Practice Member who have not yet become Public Users through the use of the Website.
means a Practice Member’s Practice Management Software.
means a healthcare practice, centre, clinic or office within which one or more Practitioners provide healthcare services (which could be a sole practitioner or an entity or other association).
means a group or association of Practices or Practitioners owned or affiliated in some way.
means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a Practice).
means any details, content, images, data or information submitted, uploaded or stored by a Practice Member or Public User accessing and using the MyHealth1st Platform or Services.
includes a person or organisation named as “Practitioner”, a "Practice," a “Practice Group,” or identified as a practitioner user of the Services in a Form.
means the members of the public who use the Website and includes those members of the public who book appointments with a Practice Member.
means publishing, managing and matching online appointments with Public User searches, and related services provided by 1stGroup through the MyHealth1st Platform or other related platforms, including through Service Providers, for use by each Practice Member named as a user of the Services in a Form, by agreement with 1stGroup.
means providers of Services to You and each Practice Member for use in conjunction with the Services, including the SMS and Survey Service Providers.
means the period from commencement of the Initial Term of the Agreement until termination or expiry of the Agreement in accordance with clause 9 and includes any renewal period.
means MyHealth1st.com.au or any related online appointment booking website operated by 1stGroup, and includes any online appointment booking widget operated by 1stGroup on the Practice Member’s own website.
means the person or entity entering into the Agreement and includes Your employees, agents and representatives.
1. The Services
1.1. You appoint 1stGroup to provide the Services in accordance with the Agreement for the Term and You and each Practice Member’s access and use of the Services is governed by the Agreement.
1.2. From the commencement of the Initial Term, You accept and agree to the Agreement. You acknowledge that You are fully aware of and agree to all of the following terms, conditions, and provisions, and You represent that You have had the opportunity to consult with a lawyer about Your rights and obligations under the Agreement, and You are entering into a legally binding agreement. You are also deemed to have agreed to the Agreement on behalf of any entity for whom You access and use the Services. You must include the Australian Company Number or the Australian Business Number of the entity entering into the Agreement.
1.3. The Agreement is taken to be entered into by You and each Practice Member authorised by You as a user of the Services in a Form. You are responsible for and must ensure that each person authorised to access and use the Services has been provided with the T&Cs that apply to their use of and access to the Services, and You must ensure that each person authorised to access and use the Services agrees to and complies with the T&Cs. You will also ensure that each Public User or any third party authorised by You to use the Services complies with the AUP while using and accessing the Services.
2. Licence to Use the MyHealth1st Platform
2.1. For the purpose of providing the Services, 1stGroup grants each Practice Member a non-exclusive, worldwide, non-transferrable licence to access and use the MyHealth1st Platform in accordance with this Agreement during the Term, for its internal business purposes only.
2.2. You agree that only a Practice Member named as a user of the Services in a Form is permitted to access the Services as an authorised user.
2.3. The licence under clause 2.1 permits the publishing of the number of Appointment Book Calendars as agreed between the parties for each Practice Member, based on the number of full time equivalent Practitioners using the MyHealth1st Platform. You may request additional or extended licences from 1stGroup, subject to agreement in writing on any relevant terms (including additional Fees).
3. The Appointment Book Calendar
3.1. An Appointment Book Calendar will be allocated to each Practice Member named as a user of the Services in the Form. The Appointment Book Calendar must only be used to manage the appointments of the Practitioner or Practitioners within that Practice to whom it is specifically allocated, and not for any other Practitioners or healthcare service providers.
3.2. In providing the Services, 1stGroup will publish the available appointments in a Practice Member’s Appointment Book Calendar on the Website for booking by Public Users. 1stGroup will have sole discretion of the display order of the Practice Member directory list on the Website.
3.3. Each Practice Member must contact a Public User directly as soon as practicable:
(a) upon receiving the Public User’s booking request or enquiry to confirm their appointment; and
(b) in the event the Practice Member wishes to change or cancel such a booking made by the Public User.
3.4. Each Practice Member must actively and consistently ensure its Appointment Book Calendar is accurate and up to date.
3.5. Each Practice Member agrees that it will not misuse the Appointment Book Calendar, will ensure that the Appointment Book Calendar is not used for another healthcare service provider’s bookings and does not list appointments which are not available.
4. Use of the Services
4.1. You agree to obtain any necessary support required to integrate the Practice Member’s PMS directly from the relevant PMS to the MyHealth1st Platform. 1stGroup is not responsible for providing integration support. You must give 1stGroup 14 days’ notice of any changes to the PMS and you agree to pay the reasonable additional Fees to allow 1stGroup to perform the necessary changes to its system resulting from the changes to the PMS.
4.2. Each Practice Member is responsible for providing their own internal facilities (including if applicable, terminal, server, software, SQL database licenses, modem and telecommunications facilities or services) necessary for accessing Services. 1stGroup accepts no responsibility for any deficiency in the Practice Member’s internal access facilities or services.
4.3. In order to access the Services, each Practice Member: (a) grants 1stGroup an exclusive license to access and use the PMS and any Practitioner Content on the PMS for the purposes of providing the Services and integrating the PMS with the MyHealth1st Platform;
(b) must register an Account and ensure that its Account information is accurate and up to date at all times.
4.4. Each Practice Member must keep confidential and secure any passwords or other security credentials supplied by 1stGroup. Each Practice Member agree to take reasonable steps, including implementing reasonable security measures to ensure that no unauthorised person gains access to the MyHealth1st Platform and there is no unauthorised use of the Services.
4.5. Each Practice Member agrees that its use of the Services including access to the Website, its Account and Appointment Book Calendar will be for lawful purposes only and will comply with the AUP. Each Practice Member further agrees that it will not use the Services to: (a) post or transmit any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful, or racially or ethnically or otherwise objectionable;
(b) encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
(c) impersonate a person or entity or falsely state their affiliation with a person or entity;
(d) upload, post, transmit or otherwise make available any content that infringes the rights of another party including but not limited to trademark, copyright and other Intellectual Property Rights; (e) advertise or perform any commercial or other form of solicitation that is in breach of law or not authorised by 1stGroup under the Agreement;
(f) transmit or otherwise make available any material that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (g) assist with the development of a competitive or replacement scheduling booking system.
4.6. You and each Practice Member, not 1stGroup, is responsible for all Public Users’ use of the Services which must be in accordance with the AUP. Any disputes between a Practice Member and a Public User must be addressed between the Practice Member and the Public User. You should treat a booking via the MyHealth1st Platform as merely a request in respect of a particular Appointment Book Calendar.1stGroup does not guarantee that a Public User will accept, be available for, or attend a booking, or follow through to complete a booking obligation. 1stGroup does not accept, and excludes to the full extent permitted by law, any responsibility for:
(a) any booking or payment disputed by a Public User;
(b) any claims resulting from fraudulent use of the MyHealth1st Platform;
(c) any breach of an agreement or offer between a Practice Member and a third party;
(d) any booking and/or payment obligation which was not fulfilled by each Practice Member or a Public User; or
(e) any bookings which may, through known or unknown reasons, overlap either partially or fully with any other booking.
4.7. You acknowledge that 1stGroup may send electronic messages, which may or may not be on your behalf with details of the Practice Member, to Public Users and Patients, including confirmation electronic messages, reminder electronic messages, electronic messages requesting feedback and Commercial Electronic Messages, as defined under the Spam Act 2003 (Cth).
4.8. You agree that You and each Practice Member are solely responsible for ensuring that a Public User or Patient has consented to receiving Commercial Electronic Messages that You send and all such Commercial Electronic Messages are in compliance with the requirements under the Spam Act 2003 (Cth), including the identity of the entity authorising the Commercial Electronic Message and a functional unsubscribe facility.
4.9. You warrant that You and each Practice Member agree not to use 1stGroup’ s name, trade marks, links or products on non-permission based emails or pop-up internet advertisements that is not authorised by 1stGroup under the Agreement. Sending Commercial Electronic Messages with a 1stGroup link attached may result in us terminating the Agreement.
4.10. You warrant that You and each Practice Member agree to promptly notify 1stGroup of any complaints received by it from any person relating to the Services particularly any complaints relating to use or disclosure of personal information or complaints of any nature relating to delivery of Commercial Electronic Messages.
4.11. 1stGroup acknowledges that it will act in accordance with the Data Use Policy when sending electronic messages under clauses 4.7 and 4.8.
5. Practitioner Content
5.1. 1stGroup will deploy and maintain appropriate security systems and technologies intended to protect against unauthorised access, modification or disclosure of Practitioner Content, and against misuse, interference, loss or corruption of Practitioner Content.
5.2. It is Your and each Practice Member’s responsibility to have appropriate back-up processes in place to protect against unexpected data corruption or loss. We strongly recommend You regularly export Practitioner Content from the MyHealth1st Platform to Your own systems to protect against any data loss caused by system or hardware failure.
5.3. If You delete Practitioner Content, deliberately or accidentally, 1stGroup may not be able to retrieve it and it may be lost permanently depending on when the server auto-purges the data from the system.
5.4. Subject to clause 9, 1stGroup will hold Practitioner Content for a period of 12 months or longer at our discretion. You should contact us if You require permanent deletion of some or all of Practitioner Content periodically, and we will assist the You with this.
5.5. You will ensure that all Practitioner Content and any other information uploaded to the Website is accurate and up to date and remains accurate and up to date.
5.6. You warrant that the Practitioner Content does not infringe the Intellectual Property Rights or other rights of any third party.
5.7. 1stGroup acknowledges that Practitioner Content will remain Your property and all Intellectual Property Rights in Practitioner Content remain vested in You. You grant 1stGroup an irrevocable licence to use and access Practitioner Content for the purpose of providing the Services during the Term.
5.8. You agree that 1stGroup may use Your business name, logo and trade mark for its promotion and marketing purposes. You grant 1stGroup an irrevocable licence to use such content in this way, providing that 1stGroup does not use Your business name, logo and trade marks for promotion or marketing purposes in a way which would clearly detract from Your good name and reputation.
6. Practice Member Qualifications and Insurance
6.1. You warrant that each Practice Member is licensed with all relevant regulatory boards and/or other bodies, councils or authorities to entitle the Practice Member to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practice Member is offering such healthcare services.
6.2. You agree to notify 1stGroup of any changes to any Practice Member’s qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to the Public Users or of any breaches or alleged breach of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence which may impact the Practice Member’s ability to provide healthcare services to the Public Users.
6.3. You will ensure each Practice Member maintains all necessary insurance policies, including but not limited to “Professional Indemnity” (including medical negligence if required) and “Public Liability” insurance in relation to the services offered by the Practice Member to the level usually required as part of any registration requirements.
7. Payment Terms
7.1. With effect from 1stGroup’s authorisation of Your access to the Services and the the installation of 1stGroup’s appointment book synchronisation software, You agree to pay the relevant Fees in return for the Services, as specified in the Form (or as agreed separately in writing with 1stGroup). You must pay either:
(a) a separate Fee for each Practitioner named as a user of the Services in the Form;
(b) a separate Fee for each booking made using the Services; or
(c) any other Fee as agreed between You and 1stGroup.
7.2. 1stGroup also charges additional Fees for certain Services You may use from time to time on an ad hoc basis. These include, for example, Fees for connection and setup, training, consulting and development, customisation and styling. The terms of any additional Services, and the payments for them, will be provided in the Form or agreed separately in writing with 1stGroup.
7.3. Certain Services, including optional services such as ‘SMS notification’, ‘SMS reminder’ and ‘comments and feedback’ services may require You to pay additional Fees and purchase credits in advance. Terms and conditions in addition to these T&Cs may apply to any such additional services, including payment, which will be provided in the Form or agreed separately in writing with 1stGroup.
7.4. Unless otherwise agreed in writing with 1stGroup, You must pay all Fees monthly in advance during the Term.
7.5. If a trial period applies, the payment and related terms applicable to any trial period will be as specified in the Form or otherwise as agreed in writing with 1stGroup.
7.6. You will pay the Fees online by credit card or, if You have provided the required direct debit authority, by direct debit.
7.7. If You do not make any payment in full (without deduction or setoff) within 14 days of the due date 1stGroup may, in its discretion, do all or any of the following:
(a) Suspend or cancel the Account;
(b) Suspend or cancel an Appointment Book Calendar;
(c) Suspend or cancel access to the Services; and
(d) Cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered by 1stGroup.
7.8. 1stGroup may vary components of the Fees by giving You 30 days’ notice in writing. You acknowledge and agree that if 1stGroup registers what it considers to be exceptional server resource loads or support relating to Your usage of the Services, then 1stGroup may require an increase in Fees for Your continued use of the Services in accordance with this clause.
7.9. Unless indicated otherwise, all Fees stated are exclusive of GST and other applicable taxes, which must be paid by You.
8.1. The Initial Term of this Agreement will commence on the date You submit a valid and complete Form requesting registration with 1stGroup. The Initial Term will continue until 30 June following the commencement of the Initial Term.
8.2. At the end of the Initial Term under clause 8.1, the Agreement will automatically renew each year for subsequent 12 month periods, unless You notify 1stGroup in writing at least 30 days prior to the end of the then current Term, of Your wish to terminate the Agreement. Each year of a Term will commence on 1 July of the relevant year.
9.1. During the Initial Term and any further Term, You may terminate the Agreement at any time by giving 1stGroup 30 days’ notice in writing. 1stGroup will only accept notices of termination in writing from the practice owner or person whose credit card and authority was used to authorise payment of Fees. 1stGroup will not be obliged to provide You with any refund or credit of or in relation to Fees paid prior to the date of termination under this clause in respect of Services it has provided to You, including any setup or connection fees.
9.2. 1stGroup may in its absolute discretion terminate the Agreement at any time by giving 30 days’ notice in writing. In the event of termination pursuant to this clause only, 1stGroup will provide a refund of any pre-paid Fees for which Services will not be provided. 1stGroup is not obliged to provide a refund of any Fees in respect of Services it has provided to You, including any setup or connection fees.
9.3. 1stGroup may, on giving notice to You in writing, immediately terminate this Agreement or suspend the Services provided under it in the event that:
(a) You or a Practice Member commit a breach of a material term of this Agreement, and that breach is not remedied within 14 days of 1stGroup notifying You of the breach;
(b) You or a Practice Member suffer any form of Insolvency; or
(c) a Practice Member loses its relevant regulatory or other licence or authority to deliver the relevant healthcare; or
(d) 1stGroup reasonably believes that terminating Your or a Practice Member’s use of the Services is necessary for security reasons or to preserve the proper continued operations of the Services. 1stGroup will not be obliged to provide You with any refund or credit of or in relation to Fees paid prior to the date of any notice under this clause.
9.4. Upon termination of this Agreement:
(a) all rights granted to You will terminate immediately; and
(b) You will:
i. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
ii. immediately cease to use the Services.
9.5. 1stGroup reserves the right to delete Practitioner Content and any data associated with Your use of the Services within 30 days of termination of the Agreement.
10. Ownership of Intellectual Property
10.1. All Intellectual Property Rights in the materials comprising the Services, including all 1stGroup software, platforms and methodologies used in providing or incorporated into the Services or the Website, remain vested in 1stGroup.
10.2. You agree, and will ensure that any Practice Member or Public User agrees not to copy, alter, modify, reproduce or distribute any part of the materials comprising the Services, unless expressly permitted under this Agreement.
10.3. You must not use, and agree to ensure that any Practice Member does not use, any 1stGroup logo, trade mark or other distinctive brand features (unless expressly permitted under this Agreement and in materials, specifically approved by 1stGroup) without the prior written consent of 1stGroup.
10.4. You acknowledge that You and any Practice Member have no right to access the software code, including the object code, intermediate code and source code of the MyHealth1st Platform, either during or after the Term of this Agreement.
11. Third Party Content
11.1. The MyHealth1st Platform, Website or Services may contain information and advertising from third parties and links to third party websites and Service Providers (3rd Party Content). 1stGroup accepts no responsibility for 3rd Party Content. You acknowledge and agree that 1stGroup is not liable for any loss or damage which may be incurred by You as a result of the availability of 3rd Party Content, or as a result of Your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, third party websites or resources.
11.2. 1stGroup does not endorse any of the goods or services that are promoted, visible, accessible or transacted through the MyHealth1st Platform, Website or Services.
12. Promoting the Services
12.1. You agree to:
(a) actively work with 1stGroup to promote to existing Patients of the Practice Member the existence of 1stGroup and the Practice Member participation with the Service so that those Patients may become Public Users; and
(b) encourage Patient use and referral of the Service by distribution of in-Practice materials including but not limited to brochures, flyers, decals and posters and by way of co-branding and marketing to those Patients and where and when relevant the use of direct links from the Practice website, if there is one, to the Website for that Practice Member’s appointments and availability.
13. SMS Service Provider
13.1. 1stGroup provides optional Services to enable Practice Members to send recall and reminder SMS to a Public User or Patient (SMS Service Provider Services) through an authorised SMS Service Provider on payment of additional Fees.
13.2. 1stGroup will not be responsible for any loss or damage to You, any Practice Member, Your clients or customers, or any third party as a result of, caused by or arising out of Your or the Practice Member’s use or access to SMS Service Provider Services.
13.3. To use the SMS Service Provider Services, You will ensure each Practice Member will read, understand and accept the SMS Service Provider’s terms and conditions, including any policies relating to spam and privacy, available on their website
14. Survey Service
14.1. 1stGroup provides Services to enable comments or feedback from a Public User or Patient (Feedback Services).
14.2. 1stGroup will not be responsible for any loss or damage to You, any Practice Member, Your clients or customers, or any third party as a result of, caused by or arising out of any use or access to the Feedback Services.
14.3. 1stGroup will not be liable for any comments or feedback given by any Public User or Patient’s through the Feedback Services. 1stGroup will not be obliged to act in any manner to give effect to the content of a Public User’s or Patient’s comments or feedback.
15. Disclaimers, exclusions and limitations
15.1. You and each Practice Member acknowledge and agree that 1stGroup is not a healthcare service provider and cannot be held liable for the care of a Public User which will at all times, as between the Practice Member and 1stGroup, remain the sole responsibility of the Practice Member.
15.2. You agree that Your access to and use of the Services is at Your own discretion and Your own risk. The Services are provided ‘as is’ and ‘as available.’ To the extent permitted by law, neither 1stGroup nor any of its affiliates, employees, representatives or agents make any representation or warranty about the Services in respect of its accuracy, reliability, fitness for purpose or non-infringement.
15.3. You acknowledge that there are certain risks inherent in using the internet and electronic communications generally, which are out of 1stGroup’s control and for which 1stGroup is not responsible. 1stGroup does not guarantee that Services provided will be free of delays, uninterrupted, error free or free of viruses or bugs. 1stGroup accepts no responsibility or liability for any loss or damage that You may incur, including any damage to software or hardware, delivery failures, system malfunction, or loss of Practitioner Content, arising from Your use of or access to the Services.
15.4. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Nothing in the Agreement excludes or limits 1stGroup’s liability that may not be lawfully excluded or limited by applicable law. Accordingly, only the limitations that are lawful in Your jurisdiction apply to You and 1stGroup’s liability is limited to the maximum extent permitted by law.
15.5. 1stGroup excludes, to the maximum extent permitted by law, all direct and indirect liability that may arise as a result of Your use of or access to the Services however arising under any theory of liability, including negligence.
15.6. 1stGroup excludes, to the maximum extent permitted by law all implied rights, remedies, guarantees, conditions and warranties of or in favour of You or a third party in respect of goods and services related to Your use of the Services and in particular, if any term, condition or warranty is implied into this Agreement and cannot be excluded, then warranty will be limited to:
(a) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services, the supplying of the services again (directly or indirectly) or the payment of the cost of having the services supplied again.
15.7. You warrant and represent that You have not relied on any term, undertaking, inducement or representation made by, or on behalf of, 1stGroup which has not been expressly stated in this Agreement.
15.8. 1stGroup limits its aggregate liability under or in connection with the Agreement and the Services to the Fees paid under this Agreement during the most recent 3 consecutive calendar months prior to the relevant claim being made.
15.9. To the extent applicable and permitted by law, You agree that the provisions of clauses 15 and 16 apply equally to You and to each Practice Member for whom You are responsible for.
16.1. You agree to unconditionally indemnify 1stGroup and its affiliates, employees, agents, representatives and Service Providers against any claims, damages, loss or liabilities of any nature arising out of or in connection with Your breach of this Agreement or Your access to and use of Services, including from:
(a) any outdated or inaccurate content published on the Website;
(b) any content published by the Practioner Member on the MyHealth1st Platform;
(c) integration of the MyHealth1st Platform with Your own or the Practice Member’s PMS and systems;
(d) any non-compliance with laws and regulation, including regarding the collection of personal and sensitive information and sending of Electronic Messages.
17.2. You will ensure that each Practice Member has been notified of 1stGroup’s practices and policies relating to the collection, use and storage of personal information.
17.3. You and each Practice Member must comply with all applicable privacy and information laws and regulations so far as they relate to the You and each Practice Member’s collection and use of personal and sensitive information via the MyHealth1st Platform. You warrant that You have made and will make all necessary disclosures, and have obtained and will obtain any necessary consents from individuals in relation to personal information which You or each Practice Member collect and disclose to 1stGroup.
17.4. You unconditionally indemnify 1stGroup for Your or a Practice Member’s non-compliance with this provision.
17.5. You agree:
(a) to notify 1stGroup immediately in the event of a potential or actual data breach or complaint concerning a Patient’s or Public User’s personal information;
(c) that for the purposes of Part IIIC of the Australian Privacy Act 1988, 1stGroup will decide whether the data breach is an eligible data breach and the form and method of the notification after meaningful consultation with You.
18.1. Each party must keep the other party’s Confidential Information (including the terms of this Agreement) confidential, and neither party will disclose or allow any written or electronically recorded Confidential Information to be copied other than for the purposes of this Agreement, as the other party expressly agrees or as required by law.
19. Dispute Resolution
19.1. The parties must endeavour to settle any dispute in connection with the Agreement by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within seven days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute, (ACN 008 651 232) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.
19.2. It is a condition precedent to the right of either party to commence arbitration or litigation other than for urgent interlocutory relief, that it has first offered to submit the dispute to mediation.
19.3. Despite the existence of a dispute, the parties must continue to perform all their respective obligations under the Agreement.
20.1. Changes to the Services
1stGroup may update, add, make changes to, or remove certain Services, the Website, its internal processes, the interface of the Services or features and functionalities of the MyHealth1st Platform from time to time as it considers appropriate. To the extent practicable, 1stGroup will give You 30 days’ notice in writing (which may be by e-mail) of any such changes that are material to Your use of the Services.
You acknowledge and agree that 1stGroup may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services.
20.3. Inconsistency If there is any inconsistency between any of the documents that comprise this Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Form prevail over the other documents to the extent of the inconsistency, and so on): (i) the Form;
(ii) these T&Cs;
(iii) any other document referenced or comprised in the Agreement.
Notice may be given by email. You agree that 1stGroup may give notice by sending an email to the address provided by You as part of the sign-up or account set-up process, or as later notified by You. You are responsible for ensuring the email address You have provided to 1stGroup is a current and monitored email account. You may send notices to 1stGroup at support@MyHealth1st.com.au.
20.5. Entire Agreement
Except as otherwise agreed in writing, this Agreement forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
20.6. Force Majeure
(a) A party to this Agreement is not liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure. In this Agreement, “Force Majeure” means a circumstance beyond the reasonable control of the non-performing party.
(b) If any delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended for the period of the delay.
(c) If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, any party may immediately terminate the Agreement upon notice in writing to the other parties.
(d) Nothing in this clause 20.6 applies to an obligation to pay money.
1stGroup may amend this Agreement or these T&Cs, or impose new T&Cs (including adding fees and charges for the Services) from time to time. Any changes will be effective immediately upon 1stGroup giving 30 days’ notice, which may be by any means, including posting on the Website or by email. 1stGroup will treat Your and a Practice Member’s continued use of the Services or the Website as acceptance of T&Cs as amended.
20.8. No Assignment
You may not assign or transfer any rights to any other person without 1stGroup’s prior written consent.
If any part of the Agreement is found by a court of competent jurisdiction to be illegal, void or unenforceable, that part is taken to be deleted from the Agreement and will not affect enforceability of the remaining provisions, unless the deletion would change what 1stGroup intends to be the effect of the Agreement.
20.10. No Merger
Nothing in the Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.
20.11. No Waiver
The failure or neglect by a party to enforce any of its rights under the Agreement will not be deemed to be a waiver of those rights.
20.12. Further Assurances
Each party agrees to do all things reasonably necessary, and ensure its employees or agents do all things reasonably necessary to give full effect to this Agreement.
Nothing in this Agreement creates a relationship of partnership, joint venture, agency, or employment between the parties.
20.14. Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
1stGroup Acceptable Use Policy
Use of the Services is subject to this Acceptable Use Policy (AUP).
If not defined here, capitalised terms have the meaning stated in the Agreement between You, or other authorised user (You) and 1stGroup.
You agree not to, and not to allow third-parties or Public Users, to use the Services:
- to generate or facilitate unsolicited commercial email including bulk email;
- to violate, or encourage the violation of, the legal rights of others;
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose;
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes or other items of a destructive or deceptive nature;
- to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorised resellers or other authorised users;
- to alter, disable, interfere with or circumvent any aspect of the Services;
- to test or reverse-engineer the Services in order to find limitations, vulnerabilities or evade filtering capabilities;
- to use the Services, or a component of the Services, in a manner not authorised by 1stGroup. Your failure to comply with the AUP may result in suspension or termination, or both, of the Services pursuant to the Agreement.
1stGroup Data Use Policy
1stGroup’s use of Practitioner Content in provision of the Services is subject to this Data Use Policy. If not defined here, capitalised terms have the meaning stated in the Agreement between You, or other authorised user (You) and 1stGroup.
1st Group does not disclose Practitioner Content to third parties unless it is to deliver 1stGroup Services or if it has the consent of the Patient, Public User or Practice Member.
1stGroup may use Practitioner Content relating to:
1. Public Users
- to facilitate booking activity including appointment reminders, recalls, payment information and feedback on the appointment experience and the Website;
- to cross promote complementary services to those offered by the Practice Member (eg fluvax) but never competitive services;
- to promote healthcare educational material in relation to the Practice Member’s practice;
- to provide campaigns for promotional material unless the Practice Member opts out of a campaign within 5 days of notification of the campaign;
- in an aggregated or deidentified form to assess and improve the Service; and
- with the approval of the Practice Member via an opt in mechanism, campaigns to: - to encourage the use of the Website; - to provide promotional material or healthcare educational material in relation to the Practice Member’s practice; and - to provide material relating to complementary services to those offered by the Practice Member, not competitive services;
- in an aggregated or deidentified form to assess and improve the Service; and