In this Agreement:
Agreement means the terms and conditions of this document,
the definitions and choices of Software, type of computer on which the Software
is licensed for use, Fees, Taxes, types of use, Licence Periods or other
metrics that apply to the Software or Support that the User selects from the
Sign On Page as part of the sign on process.
Australian Consumer Law means the Competition and Consumer Act
Confidential Information means any and all information concerning
the other party’s business, including information marked as confidential, that
the discloser treats as confidential or that the recipient knows or ought to
know is confidential, but does not include information that:
is in the public domain (other than as a result of unauthorised
the recipient already possesses at the time of disclosure (unless the
information was received through unauthorised disclosure or is subject to prior
confidentiality obligations); or
is independently developed or acquired by the recipient (other than as a
result of unauthorised disclosure).
Credit Card means any valid credit card, debit card or charge
card that Practice Master accepts for payment from time to time in its
Fees means the fees payable for the Software license and Support,
as defined by the User’s selection on the Sign On Page.
Intellectual Property Rights includes copyright, trademark,
service mark, patent, design, trade secret, or other proprietary right, any
right to registration of such rights, or any similar rights protected by
statute, from time to time.
Licensee means the User’s employer, or if the User is self
employed, Licensee is the person who clicks “I Agree” as part of the sign on
Licence Key means any form of lock, password or other mechanism
that may be used to control access to, or manage use of, the Software.
Licence Period means the period of this Agreement from the date
that the User clicks “I Agree” as part of the sign on process and for such
period as is defined by the User’s selection on the Sign On Page, (unless the
Agreement is terminated earlier in accordance with its terms). The License
Period for the trial is 14 days unless stated otherwise on the Sign On Page.
means Practice Master Pty Ltd, ACN 158 422 032.
means the webpage on the Practice Master website which sets out the
definitions and choices of Software, type of computer on which it will be
licensed for use, Fees, Taxes, types of use, Licence Periods or other metrics
that apply to the Software or Support that may be selected by the User as part
of the sign on process.
means the software programs identified on the Sign On Page, and includes its
online help information, and any minor updates to that Software.
Support means the defect correction service and right to receive
minor updates to the Software, as described in clauses 3.1 to 3.3.
Taxes includes goods and services taxes or other sales taxes,
duties, withholding taxes, levies, imposts or other charges or duties levied by
any federal, state or local government which arise out of or in connection with
the Software, Support or this Agreement, and any interest, penalties or
liabilities incurred on such amounts, but excludes taxes based on the net
income of Practice Master.
means the person who clicks “I Agree” as part of the sign on process and
thereby accepts the terms and conditions of this Agreement.
The words "includes" or "including" are not words of
Agreement must be read subject to any non-excludable provisions of the
Australian Consumer Law.
On the date that the User clicks “I Agree” as part of the sign on
process, and subject to receipt of the Fees and Taxes, Practice Master grants
to Licensee a non-exclusive, non-transferable, personal right, during the Licence
to download the Software and install it on a single computer of the type
stated on the Sign On Page;
to run (and to copy the Software only to the extent that it is necessary
to run) the Software on the single computer of the type stated on the Sign On
Page for the purpose of evaluation (trial) of the software.
Nothing in this Agreement permits Licensee to:
use the Software to process any data other than that owned by Licensee;
use the Software to provide any facility management or service bureau
service, or for the benefit of any third party;
copy, adapt, translate, publish, communicate to the public, or create
any derivative work or translation of the Software, unless expressly permitted
sub-license, lease, rent, loan, assign, novate or otherwise transfer the
Software to any third party;
disclose the Software to any third party (other than to any of
Licensee’s subcontractors who are bound by obligations of confidentiality which
are no less restrictive than those specified in clause 8.1 and who are using the Software solely for Licensee’s authorised use of the Software);
reverse engineer, reverse compile, de-compile or disassemble the object
code of the Software or any part of the Software, or otherwise attempt to
derive the source code of the Software, except to the extent the permitted by
remove, alter or obscure any Practice Master trademarks, or any
proprietary or restricted use notice or warning or disclaimer on the Software;
allow the Software to become the subject of any charge, lien or
Practice Master does not grant any right of access or use of the source
code of the Software, except to the extent permitted by law.
Licensee may have one additional copy of the Software
at any time, which may only be used as a back-up, in accordance with the law.
SUPPORT AND UPDATES
Licensee may report any defect in the Software to Practice Master via
Practice Master’s website support page www.practicemaster.com.au/support.
Practice Master will use reasonable efforts to remedy material defects in the
Software within a reasonable period. Any remedies to defects will be released
by way of a minor update that is released generally to all supported customers,
unless agreed otherwise on a case by case basis.
Where Licensee is exercising its rights in respect of a “Warranty
Against Defects (as defined by Regulation 90, issued under the Australian
Consumer Law) then, in accordance with that Regulation:
The services are provided by Practice Master
Pty Ltd ACN 158 422 032 of 6, Pringle Avenue, Frenchs Forest, NSW 2086, email
to make use of this service Licensee must contact Practice Master during the License
Period using the form on the website support page www.practicemaster.com.au/support.
for the service that Practice Master provides as a Warranty Against Defects are
included within the Fees. No additional fees are payable by Licensee for this
service. Licensee is responsible for any expenses Licensee incurs in using
statement in italics below is required to be included in these terms and
conditions under Regulation 90.
goods come with guarantees that cannot be excluded under the Australian
Consumer Law. You are entitled to a replacement or refund for a major failure
and for compensation for any other reasonably foreseeable loss or damage. You
are also entitled to have the goods repaired or replaced if the goods fail to
be of acceptable quality and the failure does not amount to a major failure.”
benefits that Practice Master provides to consumers under this Warranty Against
Defects are in addition to any other rights or remedies the consumer may have
in respect of these goods or services under the Australian Consumer Law.
If and when Practice Master issues a minor update to the Software during
the License Period (as denoted by an increase in the integer to the right of
the decimal point) Licensee may download this update from Practice Master’s
website during the License Period without charge. Licensee must then
immediately destroy all copies of the prior version of the Software.
3.4 If Practice Master issues a new version of the Software,
(what constitutes a new release is as determined by Practice Master in its sole
discretion, but is usually a version of the Software that is denoted by an increase
in the integer to the left of the decimal point), this is a new product and may
be subject to different terms and conditions. Any new version may incur an increase
in license fee to acquire.
Promptly following payment the Fees and Taxes for the Software licence and
Support, Practice Master will provide Licensee with a License Key and make the
Software available for download from Practice Master’s website.
Licensee is responsible for downloading the Software and installing it
on the relevant computer. If the Software fails to download and install
properly Licensee should promptly contact Practice Master and Practice Master
will assist Licensee to obtain a copy of the Software.
All Software is deemed accepted by Licensee upon successful download
onto the computer.
Licensee must pay any Fee described on the Sign On Page for the Software
and Support selected by the User on the Sign On Page and all related Taxes
using a Credit Card, such payment must be made at the time the User completes
the sign on process.
If Licensee wishes to:
enter into a new License Agreement for the Software and Support at the
end of the Licence Period; or
acquire other software programs or services,
then Licensee may acquire it by going through the sign on
process on Practice Master’s website and selecting the appropriate item from
the Sign On Page. Any such arrangement is a separate contract and will be
offered at Practice Master’s then current terms and conditions and fees.
Where the Fees and Taxes are denominated by Practice Master in
Australian dollars but Licensee is using a Credit Card that is not issued in
Australia, Licensee agrees:
to pay any charge from the provider of the Credit Card for an
international transaction; and
to use the exchange rate used by the provider of the Credit Card for the
conversion of the Fees, Taxes or other amounts payable under this Agreement
into Australian dollars.
Licensee irrevocably authorises Practice Master to deduct from any
Credit Card provided to Practice Master any:
Fees and Taxes due under this Agreement from time to time;
charge backs or fees, including any related Taxes, incurred by Practice
Master for any failed transaction from the Credit Card, as well as Practice
Master’s then current administration fee (as set out on the invoice) for
dealing with any failure to receive payment; and
loss, damage or expense that Practice Master suffers as a result of your
wilful, unlawful, negligent act or omission or any breach of this Agreement, as
determined by Practice Master in its discretion.
If there is any failure to make payment by the Credit Card by the due
date for any reason, including that the Credit Card ceases to be valid, ceases
to be authorised for debiting any amount stated in this Agreement or there is
insufficient funds in the relevant account, then Licensee must within 7 days:
provide an alternative Credit Card and authorise all amounts due to be
deducted from that Credit Card; and/or
make payment of all amounts due by another payment method agreed with Practice
All payments under this Agreement must be made free and clear and without
deduction for any and all present and future Taxes.
Payments due to Practice Master under the Agreement must be increased
so that amounts received by Practice
Master, after provisions for Taxes and all Taxes on such increase, will be
equal to the Australian dollar amounts required under the Agreement, as if no
Taxes were due on such payments.
WARRANTIES AND GUARANTEES
Licensee represents and warrants that Licensee will perform all of its
obligations to Practice Master, and ensure that any Software is used, in
compliance at all times with all foreign, federal, state and local statutes,
orders and regulations, including those of any governmental agency that are
applicable to Licensee in performing its obligations to Practice Master or to
the use of any Software.
Licensee acknowledges and agrees that owing to the nature of the
Software and Support, Practice Master does not represent or warrant that:
the Software will operate on or in combination with any operating system
or technology other than that stated on the Sign On Page;
the Software will be continuously available for download during the
License Period; or
the Software and/or Support will meet Licensee’s or any end user’s
any third party software to which the Software interfaces will continue
to interface (or will continue to interface in the same way) with the Software
throughout the Licence Period where that third party software is updated or has
a new release issued.
To the extent that Licensee is entitled to any statutory guarantee under
sections 54 to 59 of the Australian Consumer Law, then to the extent that Practice
Master fails to comply with such statutory guarantee in respect of goods which
are not goods of a kind that are ordinarily acquired for personal, domestic or
household use or consumption, Practice Master’s liability is limited to one or
more of the following, at Practice Master’s option:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring
the payment of the cost of having the goods repaired,
provided that it is fair and reasonable for Practice Master to
reply on this term.
To the extent that Licensee is entitled to any statutory guarantee under
sections 60 – 62 of the Australian Consumer Law, then to the extent that Practice
Master fails to comply with such statutory guarantee, in respect of services which are not services of a kind
that are ordinarily acquired for personal, domestic or household use or
consumption, Practice Master’s liability for a failure to comply with such
statutory guarantee is limited to one of the following, at Practice Master’s option:
supplying the services again; or
payment of the cost of having the services supplied again,
unless it is not fair or reasonable for Practice Master to
rely on this term of the Agreement.
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in the Software (including any
adaptations and translations) are the exclusive property of Practice Master
(and its licensors, if any), or vest in or must be transferred to Practice
Master or its designee immediately upon creation, as the case may be.
Except for the rights expressly granted by Practice Master to Licensee
under this Agreement:
Practice Master and its licensors, if any, reserve all right, title and
interest in any Software (including any adaptation or translation) and all
Intellectual Property Rights in them;
no right, title or ownership interest in or to any Software (including
any adaptation or translation), whether by implication, estoppel or otherwise,
is granted, assigned or transferred to Licensee under or in connection with
Each party agrees that it must not permit the use of the other party’s
Confidential Information by, nor must it disclose the other party’s
Confidential Information to, any third party, other than:
Practice Master may disclose Licensee’s Confidential Information to Practice
Master’s contractors (and any company, entity or legal person in Practice
Master’s group of companies, and any of their respective contractors); and
either party may disclose it to their professional advisers on a need to
unless such use or disclosure is
specifically authorised in writing by the other party or by law. Each party
must only use the other's Confidential Information for the purpose of
performing the obligations under this Agreement, or if the recipient is a
professional adviser, the professional adviser may use the Confidential
Information for purposes connected with advising on or reporting on this
Licensee must ensure that each person who is issued with a Licence Key
does not disclose their Licence Key to any other person.
Each party must use any Personal Information of which it becomes aware
in connection with the Agreement in accordance with the law. Practice Master
Practice Master’s website from time to time) when dealing with any Personal
Information of which it becomes aware in connection with this Agreement.
Licensee warrants that:
Licensee has obtained the informed consent from each individual about
whom Practice Master will obtain Personal Information from Licensee in
connection with this Agreement; and
Practice Master, its group companies, their respective subcontractors
and their permitted successors, assignees and sub-licensees may use that
individual's Personal Information in any manner that may be reasonably
contemplated by this Agreement, including a transfer overseas.
Licensee must permit Practice Master, or its nominee, to inspect and
have access to the premises (and to the computer located there) at or on which
the Software is being kept or used, the usage logs in the Software and to any
records kept in connection with this Agreement, for the purposes of ensuring
that Licensee is complying with the terms of this Agreement. If Practice
Master requires access to the Licensee’s premises then:
Practice Master must provide reasonable advance notice to Licensee;
any access must be during business hours or other times agreed by
Practice Master must use reasonable endeavours to minimise any
disruption to Licensee’s business; and
if Practice Master uses a nominee to conduct the inspection, such
nominee must not be a competitor of Licensee and must sign a non-disclosure
agreement with Practice Master that protects any information found during the
inspection on terms that are no less protective than those terms that included
in clause 8.1 of this Agreement.
LIMITATION OF LIABILITY AND INDEMNITY
For any liability that is not covered in clauses 6.3 to 6.4, to the extent permitted by law, Practice Master’s liability to Licensee for any claim
whether it be in contract (including under an indemnity), tort, breach of
statutory duty or otherwise, arising out of or in connection with the Software,
Support, this Agreement or the relationship between the parties, shall be
limited to direct damages that do not exceed $500 in aggregate.
To the extent permitted by law, Licensee indemnifies and holds harmless
Practice Master against any loss, damage or expense incurred or suffered by
Practice Master as a result of any third party claim that arises out of or in
connection with Licensee’s use of the Software.
Practice Master may terminate the Agreement, in whole or part, by giving
Licensee notice if:
payment is not received as a result of the sign on process, or there is
a chargeback for any reason other than Practice Master having to provide a
refund as required by law; or
Licensee breaches any other provision of this Agreement and the breach
has not been remedied within 7 days of notice from Practice Master specifying
Licensee may terminate the Agreement by giving Practice Master written
notice if Practice Master breaches any provision of this Agreement and the
breach has not been remedied within 30 days of written notice from Licensee
specifying the breach.
Where the Agreement may be terminated under the provisions of the Australian
Consumer Law, Licensee may also terminate the Agreement in accordance with
those provisions in the Australian Consumer Law.
Practice Master may use any technical means to enforce its rights under
this Agreement, including preventing further downloads or preventing access to
the Software through using a License Key.
in this Agreement is to constitute or be deemed to constitute a partnership
among the parties, joint venture, fiduciary relationship or is deemed to permit
any party to act as agent for any other for any purpose. Neither party will
have authority to bind the other or contract in the name of the other in any
way or for any purpose.
any part of this Agreement is for any reason declared invalid or unenforceable
the validity of the remaining portion of this Agreement will not be affected
and the remaining portion will remain in force.
provisions of this Agreement can only be varied by written document signed by
both parties. A waiver of any of the rights of a party is not effective unless
the extent of the waiver is expressly set out in a written document that is
signed by that party.
the extent that there is a conflict between the terms and conditions in this
document and the terms on the Sign On Page, the terms on the Sign On Page shall
The parties consent to this Agreement being signed or varied through
electronic communication using electronic signatures.
11.6 To the
extent permitted by law, this Agreement:
records the entire agreement between the parties in relation to its
supersedes all previous negotiations, understandings or agreements in
relation to the subject matter and expressly excludes the pre-printed terms and
conditions of Licensee’s purchase order (if any).
Agreement is governed by the laws of New South Wales, and both parties agree to
submit to the exclusive jurisdiction of the courts in New South Wales.
The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Agreement.