Disclaimer
RxPad is a software as a service platform only. By using the Platform, you acknowledge and agree that nothing provided on the Platform by us may be taken to be advice about appropriate treatments, medications or prescriptions. We do not, in any way, seek to provide you confirmation that the medication you have prescribed is appropriate or otherwise, inappropriate. We provide the Platform as a software as a service platform provider for the sole purposes of allowing you to issue electronic prescriptions to your patients.
1) Our Disclosures
Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:
- Your Membership may be subject to a minimum term, as set out in your Account. Without limiting your rights under the Australian Consumer Law, you may only cancel your Membership at the expiry of the minimum term.
- Our liability under these Terms is limited to 12 months of Fees, and we will not be liable for Consequential Loss, any loss that is a result of a Third Party Service, or any loss or corruption of data.
- You indemnify us for your provision of electronic prescriptions to patients on the Platform and any breach of the warranties and privacy and confidentiality obligations outlined in these Terms.
- We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform or for featuring certain products or services on the Platform.
Nothing in these terms limit your rights under the Australian Consumer Law.
2) Introduction
2.1) These terms and conditions (Terms) are entered into between Telecare Australia Pty Ltd ACN 632 722 911 (we, us or our) and you, together the Parties and each a Party.
2.2) We provide a cloud-based, software as a service platform where doctors can prescribe medication for their patients electronically (Platform).
2.3) In these Terms, you means the person or entity registered with us as an Account holder or where you do not have an Account, the person or entity using the Platform.
2.4) If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
3) Acceptance and Platform Licence
3.1) You accept these Terms by accepting these Terms on the Platform or via any other platform we share with you.
3.2) You and each Authorised User must be at least 18 years old to use the Platform.
3.3) We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Membership with effect from the date of the change in these Terms by providing written notice to us. If you cancel your membership, (a) you will no longer be able to use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
3.4) Subject to your compliance with these Terms, we grant you and your Authorised Users a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.
3.5) When using the Platform, you and your Authorised Users must not do or attempt to do anything that is unlawful or inappropriate, including:
(a) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
(b) using the Platform to defame, harass, threaten, menace or offend any person, including using the Platform to send unsolicited electronic messages;
(c) tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);
(d) using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or
(e) facilitating or assisting a third party to do any of the above acts.
4) RxPad Services
4.1) In consideration for your payment of the Fees, we agree to provide you and your Authorised Users with access to the Platform and any other services we agree to provide as set out in your Account.
4.2) We agree to use our best endeavours to make the Platform available at all times. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Platform may be unavailable during the times we are performing such maintenance.
4.3) You acknowledge and agree that the Platform may be reliant on, or interface with third party systems that are not provided by us (for example, cloud storage providers, CRM systems, and internet providers) (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services.
4.4) You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Platform, you agree to maintain a backup copy of any data you input into the Platform.
4.5) To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Platform to be unavailable.
5) Accounts
5.1) To be eligible to use the Platform, you must first successfully register on the electronic script exchange. Subject to you providing evidence of successful registration on the electronic script exchange, you may then register on the Platform and create an account (Account) to access the Platform’s features. Each Authorised User will require a login that is linked to your Account in order to access the Platform.
5.2) You must provide basic information when registering for an Account including your business name, contact name, email address, prescribed number, prescriber type, provider number, AHPRA number, qualifications, healthcare identifier numbers, phone numbers, fax numbers, organisation name, and you must choose a password.
5.3) All personal information you and your Authorised Users provide to us will be treated in accordance with our Privacy Policy.
5.4) You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others with the exception of your Authorised Users.
5.5) You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, and any activity from one of your Authorised Users. Each Authorised User is responsible for keeping their login details confidential. You agree to immediately notify us of any unauthorised use of your Account.
5.6) When you create an Account, you must also select a membership (Membership). You may choose between different tiers of Membership with different services and different membership periods as set out on our Platform.
6) Authorised Users
6.1) If set out in your Account, you may be permitted to invite a number of users to the Platform, who will be permitted to access and use the Platform under your Account (Authorised Users). We agree to provide you with the number of Authorised Users as set out in your Account.
6.2) The Authorised Users will have permission to access certain features of the Platform and your Account, as detailed in your Account.
6.3) You will ensure that each Authorised User complies with these Terms.You are responsible and liable for the acts or omissions of your Authorised Users.
7) Memberships
7.1) You may purchase a Membership by paying the Membership fees outlined on the Platform (Fees) in advance on a monthly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).
7.2) Your Membership will automatically renew at the end of the Billing Cycle for the same period of time and you will be charged the Fees in connection with each subsequent Billing Cycle unless and until you cancel your Membership.
7.3) Your membership may begin with a free trial for the period specified on the Platform (Free Trial Period). Free trials are only available for new Account holders and we may limit eligibility to prevent free trial abuse. If you don’t cancel your Membership before the end of the Free Trial Period, the Billing Cycle will commence on the day after the Free Trial Period and the Fees are payable on the same date.
7.4) The payment methods we offer for the Fees are set out on the Platform. We may offer payment through a third-party provider [for example, Stripe]. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.
7.5) You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.
7.6) You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Platform.
7.7) Changes to your Membership: If you wish to change your Membership (for example, by upgrading to a different Membership tier, or varying the number of Authorised Users associated with your Account), you must provide notice to us through your Account or via email that you wish to vary your Membership at least 48 hours before the end of the current Billing Cycle. If you vary your Membership and the Fees increase, the increased Fees will apply at the start of your next Billing Cycle, and you will have access to the additional Membership features at the start of your next Billing Cycle.
7.8) The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.
7.9) We may need to change what is available as part of your Membership (for example, the inclusions, exclusions, updated features) from time to time. If we change what is available as part of your Membership, we will provide you with at least 30 days’ notice of the change. After the notice period has lapsed, we will apply the changes to your Membership. If the changes adversely affect your enjoyment of the Membership, you may cancel your Membership with effect from the date we apply the changes to your Membership by providing written notice to us. If you cancel your membership, (a) you will no longer be able to use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
7.10) We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the updated Fee to your Membership. If the updated Fee is not acceptable to you, you may cancel your Membership in accordance with the ‘Cancellation of Memberships’ clause.
8) Our Intellectual Property
8.1) You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available on the Platform, the Platform itself, and any algorithms or machine learning models used on the Platform (Our Intellectual Property) will at all times vest, or remain vested, in us.
8.2) We authorise you to use Our Intellectual Property solely for your internal business use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party. Use must be limited to Authorised Users on devices that are controlled or approved by you.
8.3) You must not, without our prior written consent:
(a) copy, in whole or in part, any of Our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
(c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.
8.4) This clause will survive the termination or expiry of your Membership.
9) Your Data
9.1) You own all data, information or content you and your Authorised Users upload into the Platform (Your Data).
9.2) You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:
(a) communicate with you (including to send you information we believe may be of interest to you);
(b) supply the Platform to you and otherwise perform our obligations under these Terms;
(c) diagnose problems with the Platform;
(d) enhance and otherwise modify the Platform;
(e) perform Analytics;
(f) develop other services, provided we de-identify Your Data; and
(g) as reasonably required to perform our obligations under these Terms.
9.3) You agree that you are solely responsible for all of Your Data that you and your Authorised Users make available on or through the Platform. You represent and warrant that:
(a) you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
(b) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
9.4) 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 Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.
9.5) We do not endorse or approve, and are not responsible for, any of Your Data.
9.6) This clause will survive the termination or expiry of your Membership.
10) Warranties
10.1) You represent, warrant and agree that:
(a) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) you will promptly inform us if you change your place of work (e.g. move to a different clinic);
(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete; and
(e) in respect of your professional obligations:
(1) you, and where applicable, your Authorised Users will comply with all applicable codes, laws, standards and regulations including but not limited to:
i. the Health Practitioner National Law;
ii. the Medical Board of Australia Code of Conduct;
iii. the Australian Medical Association Guidelines on Medical Certifications 2011 (revised 2016); and
iv. any relevant State and Territory Health Records Acts;
(2) you (and your Authorised Users) hold all necessary licenses with relevant regulatory boards and/or authorities necessary to enable you and your Authorised Users to legally prescribe medication and issue prescriptions to patients;
(3) you will promptly notify us of any changes to any of your (or your Authorised Users’) Professional Registration Details or other qualifications, certifications, licenses and permits necessary for you or your Authorised Users to use the Platform and/or prescribe medications to patients;
(4) you will promptly notify us of any breaches of any Laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence by you or your Authorised Users;
(5) you will maintain all insurance policies which a reasonably prudent healthcare professional in your position would maintain, including but not limited to professional indemnity cover and public liability insurances;
(6) when you or your Authorised Users prescribe medications to patients on the Platform, you (or your Authorised Users) will:
i. ensure all medications are prescribed in accordance with all regulatory and legislative requirements in addition to ethical and professional obligations relevant to the practice of medicine; and
ii. ensure that the patient understands that the prescription will be sent to them electronically.
10.2) This clause will survive the termination or expiry of your Membership.
11) Australian Consumer Law
11.1) Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
11.2) If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
11.3) Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
11.4) This clause will survive the termination or expiry of your Membership.
12) Privacy
12.1) You acknowledge and agree that we are registered on the Electronic Prescribing Conformance Register as outlined here https://www. digitalhealth.gov.au/healthcare-providers/initiatives-and-programs/ my-health-record/ conformant-clinical-software-products.
12.2) You agree to comply with the legal requirements of the:
(a) Health Care Identifiers Act 2010 (Cth);
(b) Health Care Identifiers Regulations 2010 (Cth);
(c) My Health Records Act 2012 (Cth); and
(d) My Health Records Regulation 2012 (Cth).
12.3) Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (Privacy Act) (as if it were an “APP entity” as defined in the Privacy Act) and any other applicable Privacy Laws that may apply to the use of the Platform. Each Party must not (and must procure that its personnel do not) do anything which may cause the other Party to be in breach of any Privacy Laws.
12.4) With respect to any Personal Information that you have access to, or share with us (including via the Platform), you must (and procure that you Authorised Users must):
(a) receive consent from your patient to share their Personal Information on the Platform; and
(b) only use the Personal Information in accordance with your patients’ instructions and for the sole purpose for which it was disclosed.
12.5) In respect of any Security Incident, you must (and procure your Authorised Users must):
(a) notify us within 2 business days of becoming aware of the Security Incident;
(b) comply with your obligations under Privacy Laws;
(c) provide us with all information we reasonably request;
(d) assist and fully cooperate with us, at your cost, in investigating and remedying the Security Incident; and
(e) take any other action, at your cost, that we reasonably deem necessary in connection with the Security Incident.
12.6) This clause 12 will survive the termination or expiry of your Membership.
13) Liability
13.1) Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) each Party’s liability for any Liability under these Terms 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 that Party’s personnel (including a Party’s Authorised Users), including any failure by that Party to mitigate its losses; and
(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).
13.2) This clause will survive the termination or expiry of your Membership.
14) Indemnity
14.1) Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) your (or your Authorised Users’) provision of any electronic prescriptions to patients on the Platform, including the medications you prescribe to patients;
(b) any breach by you or your Authorised Users of clause 10, 12 or 15.3.
14.2) This clause will survive the termination or expiry of your Membership.
15) Termination
15.1) Cancellation of Memberships: You may request to cancel your Membership at any time by notifying us via email or via ‘cancel my membership’ feature in your Account. Your cancellation will take effect from the end of the current Billing Cycle.
15.2) A Membership will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 5 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
15.3) Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.
15.4) Upon expiry or termination of your Membership:
(a) we will remove your access to the Platform; and
(b) where we terminate your Membership as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.
15.5) Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.
15.6) Termination of a Membership will not affect any rights or liabilities that a Party has accrued under these Terms.
15.7) This clause will survive the termination or expiry of your Membership.
16) General
16.1) Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
16.2) Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
16.3) Confidentiality: Other than where the disclosure is permitted by law, each party agrees not to disclose any confidential information it may access on or through the Platform to a third party, or otherwise misuse such confidential information.
16.4) Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
16.5) Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
16.6) Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimize the duration and adverse consequences of the Force Majeure Event.
16.7) Governing law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
16.8) Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. 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.
16.9) Publicity: With your prior written consent, you agree that we may advertise or publicise the fact that you are a user of our Platform, including on our website or in our promotional material.
16.10) Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
16.11) Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
17) Definitions
17.1) Australian Medical Association Guidelines on Medical Certifications 2011 (revised 2016) means the guidelines published by the Australian Medical Association, as updated from time to time, which clarifies the roles and responsibilities of health practitioners.
17.2) Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any 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. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.
17.3) Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
17.4) Health Practitioner National Law means the legislation that was enacted in each state and territory of Australia, being the Health Practitioner Regulation National Law (Victoria) Act 2009 in Victoria.
17.5) Health Record Acts means the relevant state and territory legislation which establishes a framework to protect the privacy of individuals’ health information, being the Health Records Act 2001 in Victoria.
17.6) 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.
17.7) Laws means all applicable laws, order, judgements, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licenses, 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 these Terms and use of the Platform.
17.8) 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 these Terms or otherwise.
17.9) Medical Board of Australia Code of Conduct means the code of conduct established by the Australian Medical Association which establishes the professional standards required of doctors.
17.10) Personal Information means personal information as defined in the Privacy Act.
17.11) Privacy Laws means the Privacy Act and any other applicable Laws relating to privacy.
17.12) Professional Registration Details means AHPRA registration number, healthcare provider identifier individual number and prescriber number, and any other relevant licence details.
17.13) Security Incident means the actual or likely occurrence of any of the following in respect of the Personal Information that you (or your Authorised Users) receive or have access to in connection with this Agreement, or otherwise share on the Platform:
(a) a breach by you (or your Authorised Users) of clause 12.1 and 12.2;
(b) an ‘eligible data breach’ (as that term is defined in the Privacy Act) caused or contributed by you (or your Authorised Users).
For any questions or notices, please contact us at:
Telecare Australia Pty Ltd (ACN 632 722 911)
Email: support@rxpad.com.au
Last update: 10 March 2023.
