Terms and Conditions

This Agreement is between JHL ADVANCED DIGITAL MARKETING PTY LTD (ACN 683 586 058), (we, us or our) and you, the person or entity stated in the Schedule (you or your), together the Parties and each a Party. This Agreement forms the terms under which we will provide Services to you, as set out in the Schedule.

• Services
  • In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
  • You agree to:
    • provide us with all information, access, and cooperation reasonably necessary for us to perform the Services;
    • ensure your Systems and data are appropriately backed up and up to date before we perform any Services that may affect them; and
    • notify relevant parties of any planned outages or downtime necessary for the performance of the Services.
  • You acknowledge that failure to comply with clause 2.2 may impact the performance or results of the Services, and we will not be liable for any issues arising from such non-compliance.
• Third Party Services
  

  Where you engage third parties to operate alongside the Services (for example, your web-hosting platforms and any third-party software systems you wish to integrate with the Services), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise.

• Variations
  • All variations to the Services or additional services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.
• Software Licence
  • You agree that the Software Licence permits you to access and use the Services in accordance with this Agreement and any limitations set out in the Schedule.
  • You must not:
    • access or use the Services except as permitted by the Software Licence, or through an interface provided by us;
    • use the Services in any way that is improper or breaches any Laws, infringes any person's rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability;
    • interfere with the Services, our System, or others' use of the Services;
    • share account access or authentication details;
    • sell, resell, sublicence (except to End User), or otherwise commercialise access to the Services to any third party without our prior written consent. This includes, charging fees for access to the Services and bundling the Services with other products or services for commercial gain;
    • introduce any viruses or any other malicious code into the Services;
    • use the Services to carry out security breaches or disruptions of a network;
    • attempt to access any data or log into any server or account that you are not expressly authorised to access;
    • circumvent or attempt to circumvent security measures of any of network, account or host or those of any third party; or
    • use the Services to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
• End Users
  • You may grant access to End Users to the Services as contemplated by this Agreement.
  • You acknowledge and agree:
    • to use reasonable efforts to inform End Users of the appropriate use of the Services;
    • to ensure that all End Users have an AHPRA registration number;
    • that End Users need to sign our EULA before they are provided with access to our Services; and
    • that we have the right to suspend the End User’s access to the Services if we reasonably believe that the End User has breached the EULA while accessing the Services.
• Availability
  • From time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the Services in order to continue to supply the Services to you and our other customers (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the Services, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the Services as a result of any Scheduled or Emergency Maintenance.
  • The Services may interact with, or be reliant on, products or services provided by third parties, such as generative AI providers and cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
  • We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Services.
• Payment
  • In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms.
  • If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
    • after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
    • charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
  • If we refer you to a third-party provider, we may receive a financial incentive (such as a referral fee) from that provider.
• Your Obligations and Representations
  • You agree that you are:
    • responsible for ensuring that your Personnel comply with this Agreement (including any of your Personnel whom you grant access to the Services); and
    • liable for all acts and omissions of your Personnel in connection with this Agreement.
  • You agree to:
    • comply with this Agreement, all applicable Laws, and our reasonable requests;
    • provide all assistance, information, documentation, access (including to your Systems and premises if applicable), facilities and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;
    • provide us with all information, access, and cooperation reasonably necessary for us to perform the Services and ensure all information provided to us is kept current and accurate;
    • to make any changes to your Systems, such as System upgrades, that may be required to support the delivery and operation of any Services;
    • ensure that all content you create, upload or manage within the Services, including questions, answers and any other information in your content library, is accurate, compliant with all applicable laws and regulations governing health information, and consistent with current health advice;
    • notify relevant parties of any planned outages or downtime necessary for the performance of the Services;
    • not (or not attempt to) disclose, or provide access to, the Services to third parties without our prior written consent;
    • ensure that where you grant any of your Personnel access to the Services, they will agree to our End User Licence Agreement as notified by us to you from time to time in order to access the Services;
    • not sell or attempt to sell access to the Services, as specified in clause 4.2(e); and
    • notify us of any breach or suspected breach of this Agreement by you, within 48 hours of becoming aware of any such breach or suspected breach.
  • You acknowledge that failure to comply with clauses 9.2(a)-(f) may impact the performance or results of the Services, and we will not be liable for any issues arising from such non-compliance.
  • You acknowledge and agree that:
    • we assume no responsibility or Liability for Your Data. You are solely responsible for Your Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up Your Data;
    • you will be responsible for the use of any part of the Services by your Personnel, and you must ensure that no person uses any part of the Services:
      • to break any Law or infringe any person’s rights (including Intellectual Property Rights);
      • to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
      • in any way that damages, interferes with or interrupts the supply of the Services.
• Warranties and Representations
  • Each Party represents and warrants that:
    • it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
    • this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
  • You represent and warrant that:
    • all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
    • you will not use the AI-generated content, or recommend that End Users use such content, for:
      • generating medical advice or diagnoses;
      • marketing or promotional purposes without our express consent; and
      • any purpose that could reasonably be expected to cause harm or create liability for us.
    • no insolvency events (including bankruptcy, receivership, voluntary administration, liquidation or creditors’ schemes of arrangement) affecting you or your property are occurring or are likely to occur; and
    • if you enter into this Agreement as a trustee of a trust, then:
      • you are the sole trustee of the relevant trust and have been validly appointed;
      • you have full and valid power, authority, consents and approvals under the relevant trust to execute the Agreement and carry out the transactions contemplated by the Agreement; and
      • you have the right to be indemnified out of the assets of the relevant trust for all liabilities incurred by you under the Agreement.
  • We agree:
    • to use reasonable efforts to ensure all of our obligations under this Agreement will be carried out by suitably competent and trained Personnel and in an efficient and professional manner; and
    • that we own or have the right to all Intellectual Property in the Services (excluding Third-Party Services) necessary to grant you the Software Licence without infringing any third party’s Intellectual Property Rights.
• Intellectual Property
  

  Our Intellectual Property Rights

  • As between the Parties, you acknowledge and agree that we own all Intellectual Property Rights in the Services, including the software, any feedback, and all Intellectual Property which is created, owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property and the Services and any output generated by your use of the Services (other than Your Data). Even where we have customised the Services and you are white-labelling to End Users, we will continue to own all Intellectual Property Rights in the Services (other than Your Data).
  • You agree that we may use feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any feedback.
    

    Your Data

  • As between the Parties, you own all Intellectual Property Rights in:
    • all Intellectual Property created, owned or licensed by you or your Personnel and any improvements, modifications or enhancements of such Intellectual Property; and
    • the information, library content questions and answers you have created, materials, logos, brandings, documents, qualifications and other Intellectual Property or data inputted by you or your Personnel into the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement,

    (Your Data).

  • You acknowledge that you are solely responsible for ensuring that all content you input into the Services is compliant with all relevant laws, regulations, and industry standards.
  • You must ensure that any content you input into the Services, including library content questions and answers is:
    • compliant with relevant health laws, regulations, industry standards, and public health advice; and
    • reviewed and approved by your medical, legal, and marketing teams as appropriate.
    Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.
  • You grant us a non-exclusive, revocable, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use, copy, transmit, store, backup, and access Your Data solely for the purposes of:
    • providing and improving the Services;
    • performing our obligations under this Agreement;
    • enabling you and your Personnel to access and use the Services;
    • diagnosing problems with the Services; and
    • developing other services, provided we de-identify Your Data.
  • You represent, warrant, acknowledge and agree that you have all necessary rights to provide Your Data to us, and that our use of it as contemplated by this Agreement will not violate any Laws or third-party rights, including Intellectual Property, privacy, or publicity rights.
  • If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
    

    Intellectual Property Breaches

  • In the use of any Intellectual Property Rights in connection with this Agreement, each Party agrees that it must not (and must ensure that its Personnel do not) commit any Intellectual Property Breach. Where a Party reasonably suspects that such a breach may have occurred, it must notify the other Party immediately.
  • You agree not to, whether directly or indirectly, without our prior written consent:
    • copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Services or otherwise attempt to discover any part of the source code of the Services;
    • use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;
    • unless authorised under this Agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
    • rent or sublicence the use of the Services to any third parties, without our prior written consent or as otherwise permitted under this Agreement;
    • take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;
    • remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or
    • use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.
  • This clause 11 will survive termination or expiry of this Agreement.
• Analytics
  • You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
    • does not contain any identifying information; and
    • is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
  • We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
  • We may use and disclose to our service providers anonymous data about your access and use of the Services for the purpose of helping us improve the Services. Any such disclosure will not include details of your identity or personal information.
• Confidential Information
  • Each Receiving Party agrees:
    • not to disclose the Confidential Information of the Disclosing Party to any third party (subject to clause 13.1(c));
    • to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure;
    • to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided that those persons keep the Confidential Information confidential in accordance with this clause 13.1; and
    • to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.
  • The obligations in clause 13.1 do not apply to Confidential Information that:
    • is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
    • is authorised to be disclosed by the Disclosing Party;
    • is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or
    • must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
  • Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 13. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 13.
  • This clause 13 will survive the termination of this Agreement.
• Privacy
  • Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable Privacy Laws that may apply to it or the supply of the Services (Privacy Laws). You must not do anything which may cause us to be in breach of any Privacy Laws.
• Australian Consumer Law
  • Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
  • Subject to your Consumer Law Rights, we provide all material, work and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
  • This clause 15 will survive the termination or expiry of this Agreement.
• Limitations on liability
  • Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:
    • neither Party will be liable for Consequential Loss;
    • a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss;
    • in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
    • our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the amount of any fees paid by you to us during the 12 months immediately preceding the event giving rise to the Liability.
  • This clause 16 will survive the termination or expiry of this Agreement.
• Term and Termination
  • This Agreement will operate for the Term.
  • This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
    • the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
    • the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
  • Upon expiry or termination of this Agreement:
    • we will retain Your Data for 30 days (Retention Period). During this period, you may request a copy of Your Data. After the Retention Period, we may securely delete all of Your Data, except as required by law or regulatory requirements;
    • without limiting your Consumer Law Rights, other than where this Agreement is terminated by you in accordance with clause 20.3, there will be no refunds or credits for any unused Services (or part thereof); accordance with clause 20.3, there will be no refunds or credits for any unused Services (or part thereof);
    • you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
    • by us pursuant to clause 17.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
    • we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 13.
  • Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
  • This clause 17 will survive the termination or expiry of this Agreement.
• GST
  • If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
  • If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
  • If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
  • The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• General
  • Amendment: This Agreement may only be amended by written instrument executed by the Parties.
  • Assignment: Subject to clause 19.3 a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
  • Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
  • Force Majeure: Neither Party will be liable for any delay or failure in performance of its obligations under this Agreement resulting from a Force Majeure Event. The affected Party must promptly notify the other Party of the Force Majeure Event and use reasonable efforts to mitigate its effects. If a Force Majeure Event prevents performance of a material obligation for more than 60 days, the unaffected Party may terminate this Agreement upon notice. This clause does not apply to payment obligations. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
  • Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
  • Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
  • Professional Services Disclaimer: You acknowledge and agree that any information, advice, material or work provided by us as part of the Services does not constitute legal, financial, medical, due diligence or risk management advice.
  • Publicity: With your prior written consent, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
  • Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
• Definitions

  In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Order, and:

  ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

  Analytics takes the meaning given to it in clause 12.

  Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

  Commencement Date means the date this Agreement is accepted in accordance with its terms.

  Confidential Information means information which:

  • is disclosed to the Receiving Party in connection with this Agreement at any time;
  • relates to the Disclosing Party’s business, assets or affairs; or
  • relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

  whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

  Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Fees and any other amounts payable under this Agreement will not constitute “Consequential Loss”.

  Consumer Law Rights has the meaning given in clause 15.1.

  End Users means healthcare professionals such as doctors, who are granted access to the Services by you.

  End User Licence Agreement or EULA means the agreement that users must agree to before accessing the Services.

  Fees means the price set out in the Schedule, as adjusted in accordance with this Agreement.

  Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

  Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable .

  Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the provision of the Services.

  Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

  Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.

  Payment Terms have the meaning set out in the Schedule.

  Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

  Receiving Party means the party receiving Confidential Information from the Disclosing Party.

  Services means the services that we agree to perform under this Agreement, as further particularised in the Schedule.

  System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.

  Your Data means the information, medical papers, content library questions and answers, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel into the Services or stored by the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.