Terms of Service
MedApps provides the Application, which is an online application that assists Users to view content, policies, information, communications and other similar content online and interact with other Users regarding such content.
These terms of service set out the terms and conditions on which MedApps will provide access to the Application to a User who downloads or is otherwise provided with access to the Application. If the User is accessing an Account to which a Customer Contract applies, the terms and conditions of that contract will apply to the User’s access and use of that Account, to the extent that the Customer Contract conflicts with these terms. Where the User is accessing an account which is managed by MedApps, or there is no applicable Customer Contract, then these Terms of Service will apply to that user.
By clicking the ‘I accept’ button, registering and accessing an account or otherwise confirming the User’s acceptance of these terms electronically the User agrees that it has read, understood and will be bound by these terms.
The User is required to agree to and comply with these terms in order to access and use the Application.
1. Definitions and interpretation
In these terms, unless the context otherwise requires:
(a) Account means a dedicated section of the Application allocated to a Customer or managed by MedApps which is accessed by a User when using the Application
(b) Apple means Apple Inc, a California corporation with its principal place of business at One Infinite Loop, Cupertino, California 95014, U.S.A.
(c) Application means the online application downloaded by, or otherwise provided to, the User and accessed pursuant to these terms. It includes both web or native mobile application.
(d) Commencement Date means the date the User clicks the ‘I accept’ button or otherwise confirms the User’s acceptance of these terms electronically.
(e) Consequential Loss means Loss beyond the normal measure of damages and includes indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
(f) Customer means the organisation or business which employs, contracts or otherwise engages the User to provide services at its premises.
(g) Customer Contract means an agreement entered between a Customer and MedApps for a dedicated account in the Application.
(h) Documentation means any manuals, guides, reference materials or other similar documents in any form made available by MedApps to the User in connection with the Application.
(i) Improvement means any modification, alteration, development, new use or other change to the Application which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way preferable.
(j) Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
(k) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
(l) Permitted Purpose means accessing and using the Application for purposes in accordance with these terms and in accordance with, and as permitted by, the Usage Rules set out in Apple’s App Store Terms of Service.
(m) MedApps means MedApps Pty Ltd ACN: 605 294 960 of Level 4, 11 York Street Sydney, NSW, 2000.
(n) MedApps Policies means the then current policies of MedApps regarding the use of the Application, of which MedApps may notify the User from time to time during the Term.
(o) Terms means these terms and any other applicable conditions or use or acceptable use policy (if applicable) to the use of the Application by the User.
(p) Term means has the meaning given in clause 5.1 of these terms.
(q) User means the person who downloads or is otherwise provided with access to the Application.
In these terms, headings are inserted for convenience only and do not affect the interpretation of these terms and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
(d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and
(e) if there is any inconsistency between the provisions of these terms and the provisions of Apple’s App Store Terms of Service, the provisions of Apple’s App Store Terms of Service will prevail to the extent of the inconsistency.
MedApps and the User acknowledge that these terms are between MedApps and the User only, and not with Apple. MedApps, and not Apple, is solely responsible for the Application and the content thereof.
2. Access and Restrictions
2.1 Access to Application
MedApps allows the User to access the Application for the Permitted Purpose during the Term on iPhone, iPod touch, iPad, Android, other computer or any other devices owned or controlled by the User.
Access referred to under clause 2.1 permits the User to access and use the Application solely for the Permitted Purpose and the User must not access or use the Application for any other purpose. Without limiting the above, the User must not:
(a) make any copies of the Application (other than copies that are made to download the Application and install the Application for the Permitted Purpose on any iPhone, iPod touch, iPad, Android, or any other devices devices owned or controlled by the User as permitted by these terms and by the Usage Rules set forth in Apple’s App Store Terms of Service);
(b) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Application or the Content;
(c) attempt to circumvent or break any keys or any other encryption, decryption or other security device or technological protection measure contained in the Application;
(d) distribute any part of the Application or Content for commercial purposes or otherwise licence or resell the Application;
(e) create derivative works from all or any part of the Application or the Content;
(f) transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Application or the Content; or
(g) publish, communicate or otherwise make any part of the Application or the Content publicly available.
2.3 Protection measures
The User acknowledges that the Application may contain keys or other technological protection measures and may use the keys or other protection measures to disable or suspend the Users access to the Application:
(a) following the termination of access; or
(b) if the User breaches (or MedApps reasonably suspects the User has breached) any provision of these terms.
3. Updates and support
3.1 The User acknowledges that nothing in these terms imposes obligations on MedApps to develop, release or install for the User any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Application (Updates). However, if MedApps does develop or release any Updates, it may require that all such Updates be used by the User.
3.2 The User also acknowledges that nothing in these terms imposes obligations on MedApps to provide any services to the User in respect of the Application including (without limitation) development or customisation services, technical support, training or maintenance services.
3.3 The User and MedApps acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application (whether under these terms or pursuant to any applicable law).
4. Documentation and policies
The User must use only the most recent version of the Documentation provided or made available by MedApps, and must follow any directions in the Documentation regarding the Use of the Application. The User must also ensure that its access to and use of the Application complies with all current MedApps Policies.
5. Term and termination
These terms apply from the Commencement Date and will continue until terminated pursuant to clause 5.2.
MedApps may terminate the service and access granted under clause 2.1 effective immediately on providing written notice of termination to the User if:
(a) the User breaches a term or condition of these terms and fails to remedy such breach within seven days after being provided with written notice of the breach by MedApps;
(b) the User breaches a term or condition of these terms which MedApps considers cannot be remedied; or
(c) MedApps terminates its provision of the MedApps services to the Customer under these terms or terminates the User’s access to, or use of, the Application under the Terms (as applicable).
5.3 Post termination obligations
Immediately on termination of the service, the User must:
(a) cease all use of the Application; and
(b) permanently delete all copies of the Application from any devices in its possession, custody or control.
5.4 Survival of certain terms
The party’s obligations under clauses 2.2, 5.3, 6, 7.3 and 9 of these terms will survive notwithstanding any termination of access.
6. Intellectual Property
6.1 MedApps’ Intellectual Property
The User acknowledges that, subject to clause 2.1, nothing in these terms grants the User any ownership of, or rights in respect of, the Intellectual Property in the Application or any Documentation or any Improvements to the Application or any Documentation.
Any Intellectual Property in respect of the Application or Documentation (including any Intellectual Property in any Improvements to the Application or Documentation) which is created by, or vests in, the User during the Term is assigned to MedApps immediately on the Intellectual Property being created or vesting in the User and the User agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
6.3 Promotion and marketing
(a) The User agrees that, for the purposes of promoting, improving and marketing MedApps and the Application, MedApps may use aggregated usage data obtained through use of the platform.
(b) The User acknowledges and agrees that MedApps may provide Users with emails, text messages, push notifications, alerts and other messages (Notifications) related to the Application and/or Medapps Products and/or products, services or education materials related to the User’s area of practice or place of work.
(c) The User may change their Notification preferences through the Application or unsubscribe to emails.
6.4 Personal Information
(a) MedApps may collect and use a User’s personal information for the purposes of:
(i) providing a User with access to, and use of, the Application or other MedApps products and services and for any necessary related purposes; and
6.5 Third Party Intellectual Property
MedApps and the User acknowledge that, in the event of any third party claim that the Application or the User’s possession and use of the Application infringes that third party’s intellectual property rights, MedApps (and not Apple) will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
7. Consumer Guarantees
7.1 Australian Consumer Law
The Australian Consumer Law (ACL) may confer certain consumer guarantees in relation to the Application or the performance of MedApps obligations under these terms if the User acquires the Application as a ‘consumer’ within the definition of section 3 of the ACL.
7.2 Limitation of liability
If the User makes a claim against MedApps regarding the goods or services provided under these terms in respect of a breach or alleged breach by MedApps of the consumer guarantee provisions of the ACL and the relevant goods or services are not of a kind ordinarily acquired for personal, domestic and household use, then to the extent permitted by law, MedApps’ liability to the User for such a breach or alleged breach of the consumer guarantee will be limited, at the election and discretion of MedApps, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of the equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(b) if the breach relates to services:
(i) the supply of the services; or
(ii) the payment of the cost of having the services supplied again.
7.3 Liability of Apple
The User and MedApps acknowledge that MedApps (and not Apple) is responsible for addressing any claims of the User or any third party relating to the Application or the User’s possession and/or use of the Application, including, but not limited to:
(a) product liability claims;
(b) any claim for the Application fails to conform to any applicable legal or regulatory requirement; and
(c) any claim arising under consumer protection or other similar legislation.
8. Warranties and liability
8.1 Warranty exclusions
MedApps does not warrant that the Application or any portion of the Application will meet the User’s requirements, the operation of the Application will be uninterrupted or error-free, the Application will be compatible with the User’s other software or systems or that the Documentation will be error free. Where a Customer Contract has been signed with a Customer uptime or service levels may be defined in the individual agreements. All express or implied warranties in relation to the Application are expressly excluded.
8.2 MedApps’ liability
(a) MedApps is not liable for any loss, liability or claim suffered or incurred by a User arising from its use of the Application.
(b) Notwithstanding any other provision of these terms MedApps is not liable for any loss or liability suffered by the User or a third party arising from a User’s use of the Application including, but not limited to, any clinical decisions made by that User in reliance on information made available on the Application.
(c) Subject to clause 7 and notwithstanding any other provision of these terms, the maximum aggregate liability of MedApps to the User under or in connection with this licence agreement (including for breach of this licence agreement by MedApps or any negligent act or omission of MedApps) shall be limited to the amount of any purchase or other fee paid by the User.
(d) MedApps will not be liable to the User for any Consequential Loss incurred by the User under, or in connection with, these terms or as a result of the User’s use of the Application, even if MedApps has been advised of the possibility of such Consequential Loss being incurred.
The User will indemnify MedApps and each of its directors, officers, employees, agents, contractors and related bodies corporate (Indemnified Parties), and keep each of them indemnified, against any claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:
(a) any breach by the User of these terms; or
(b) any negligent, or wilful acts or omission, theft, misconduct, dishonesty or fraud committed by the User.
10. General provisions
10.1 International conventions
The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to these terms or the subject matter hereof.
The User may not assign or otherwise deal with any of its rights or obligations under these terms without the prior written consent of MedApps. MedApps may assign, novate or otherwise deal with its rights under these terms at any time effective immediately upon MedApps notifying the User of the assignment or novation.
10.3 Entire agreement
These terms constitute the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the User and MedApps or their respective officers, employees or agents. Where a Customer Contract exists for an Account, the terms and conditions of that agreement will take priority over these terms.
10.4 Waiver and variation
These terms will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under these terms to a party constitutes a waiver and the party may still exercise that right in the future.
10.5 Liability of parties
If a party consists of more than one person:
(a) an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;
(b) a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
(c) a representation, warranty or undertaking made by those parties Is made by each of them.
10.6 Apple a third party beneficiary
MedApps and the User acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms and that, upon the end-user’s acceptance of the terms and conditions, Apple will have the right (and will be deemed to have accepted the right) as a third party beneficiary to enforce these terms against the User.
10.7 User’s Legal Compliance
The User represents and warrants that they are not:
(a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a ‘terrorist supporting’ country; and
(b) listed on any U.S. Government list of prohibited or restricted parties.
If any provision of these terms is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms or affecting the validity or enforceability of that provision in any other jurisdiction.
10.9 Contacting MedApps
The User may contact MedApps by email. Any questions or complaints with respect to these terms should be directed to MedApps by email at [email protected].
10.10 Governing law
These terms will be governed by and construed exclusively under the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Federal Court of Australia.