Praktika Service Terms and Conditions

1.1. Your access and use of the Online Service, and the provision of the Support made available by Us, is conditional upon You agreeing to the terms and conditions set out in this Service Agreement.

1.2. Each person executing this Service Agreement on Your behalf warrants that he or she has been properly authorised by You to do so and has the power to bind You under this Service Agreement.

1.3. You agree to ensure that each of Your employees, subcontractors and agents who use the Online Service comply with each of Your obligations under this Agreement as if they were their own obligations.

1.4. This Service Agreement commences on the earlier of the following actions by You:

• (a) if this Service Agreement is displayed on Your computer, clicking a button with the words "I accept" or similar words indicating Your acceptance;
• (b) signing a copy of this Service Agreement or of a document in which You agree to be bound by this Service Agreement; or
• (c) proceeding to access and use the Online Service made available by Us.

2.1. "Commencement Date" means the date so indicated on the Service Schedule. Commencement Date indicates the date when the billing cycle starts.

2.2. "Confidential Information" means confidential information of a party including, without limitation, all information of a party marked as confidential for which the other party knows or ought reasonably be aware of as confidential (regardless of which form and whether the other becomes aware of it before, on or after the date of this Service Agreement) but excludes information that is publicly known other than as a result of a breach of the obligations of confidentiality under this Service Agreement.

2.3. "Fee/Fees" means the fees payable for Your access and use of the Online Service and any other goods or services provided by Us, as detailed in the Service Schedule.

2.4. "Intellectual Property Rights" means any copyright work or other work, patentable invention, design, circuit layout, new plant variety, trade mark, know-how, trade secrets or confidential information and any other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.

2.5. "Initial Term" means the initial period for which You may access the Online Service as detailed in the Service Schedule.

2.6. "Term" has the meaning given in clause 4.1.

2.7. "Online Service" means the service provided by Us as a practice management software application running online and available to You via the Internet.

2.8. "Personal Information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion. Personal Information includes health information and other sensitive information.

2.9. "Privacy Law" means a law relating to the protection of Personal Information which applies to You. Privacy Law may include, but is not limited to, the Privacy Act 1988 (Cth), the Health Records Act 2000 (Vic), the Health Records and Information Privacy Act 2002 (NSW) or the Health Records (Privacy and Access) Act 1997 (ACT) as amended from time to time.

2.10. "Service Schedule" means the separate service schedule attached to these terms and conditions which sets out particulars of the goods and services to be provided by Us to You pursuant to this Service Agreement.

2.11. "Service Agreement" means this agreement between You and Us relating to the access and use by You of the Online Service and Support and consisting of these terms and conditions and the Service Schedule.

2.12. "Support" means the support and maintenance services provided by Us to You for the Online Service as detailed in the Service Schedule.

2.13. "Taxes" means any third party or government charges or any other charges or taxes which may apply to Our supply of any goods or services to You including, without limitation, any goods and services tax, value added tax or other sales taxes.

2.14. "You/Your" means the customer or licensee accessing and using the Online Service and whose details are provided to Us via the Service Schedule.

2.15. "Your Authorised Employees" means any of Your employees, officers or agents who are authorised by You to access and use the Online Service for and on Your behalf.

2.16. "Your Data" means the content, data or other information which you enter into the Online Service or make available for Support and which is or has been stored by Us on the Online Service for and on Your behalf which may include, without limitation, Your contact details, financial details, and all data and information in relation to Your customers and patients.

2.17. "We/Us/Our" means LIZARD SOFTWARE PTY LTD (ACN 091 190 359) of 7/24 Lakeside Drive, Burwood East, Vic 3151, Australia.

2.18. "Website" means www.praktika.com.au or any other website from which We permit you to access the Online Service as notified by Us to You from time to time.

2.19. "Surgery/Chair/Operatory" means a room or part of a room configured to deliver treatment to patients. Surgery is part of Practice.

2.20. "Location/Practice" means a registered place of business where one or more health practitioners perform treatment. Practice may have at least one or more surgeries.

2.21. "Termination Date" is the date stated in the termination notice described in clause 11.1. and it means the date upon which this Agreement and your access to the Online Service ends.

3.1. We agree to provide You with a non-exclusive, revocable, non-transferable licence to access and use the Online Service for the Term in accordance with the terms of this Service Agreement.

3.2. By accessing and using the Online Service, You agree to be bound by the terms of this Service Agreement. If You do not agree with the terms of this Service Agreement, You must not access or use the Online Service.

3.3. You may access and use the Online Service only for the Term, subject to any right of earlier termination as provided in this Service Agreement.

3.4. On the commencement of this Service Agreement, You must provide Us with all information about You and Your Authorised Employees that We request in order for Us to create individual user accounts to access and use the Online Service and to customise Your access to the Online Service. You will then be provided with individual username and password details in order for You to access and use the Online Service via the Website.

3.5. We may suspend Your right to access and use the Online Service or part of the Online Service at anytime without prior notice to You:

• (a) during routine or emergency maintenance, upgrades or updates for the Online Service; and
• (b) while We investigate any breach of this Service Agreement by You.

4.1. Your licence to access and use the Online Service will commence on the Commencement Date and continue for the Initial Term and any extensions thereof as provided for in clause 4.2 below (with the Initial Term and such extensions to be known as the "Term").

4.2. At the expiration of the Initial Term and each subsequent Term thereafter, You may elect to renew this Service Agreement for a further Term of the same duration, subject to the following:

• (a) You must provide Us with written notice of Your decision to renew this Service Agreement no less than thirty (30) calendar days prior to the end of the then-current Term;
• (b) We may refuse such renewal in the event You have committed any default of this Service Agreement that remains unremedied at the end of the then-current Term;
• (c) We may require you to enter into the then-current version of this Service Agreement, which will apply during the renewed Term; and
• (d) We may review and increase our Fees that will be payable for our Services after the end of the Initial Term or following the end of any subsequent Term.

4.3. At the expiration of the Initial Term or any subsequent Term, and subject to the payment of the then applicable fee, Your access and use of the Online Service may continue on a month to month basis until termination of this Service Agreement in accordance with clause 11.

5.1. You grant to Us a perpetual, irrevocable, world-wide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish and store Your Data for the sole purpose of providing the Online Service and Support to You.

5.2. You warrant to Us that You have the necessary rights in Your Data to grant Us the licence outlined in clause 5.1.

5.3. You acknowledge that:

• (a) We may delete Your Data from the Online Service following the termination of this Service Agreement and/or Your access to the Online Service. Upon termination, on your request and provided that You have paid all amounts due to Us under this Service Agreement, we will provide you with a CD or DVD containing a copy of Your Data or a link for download of a copy of Your Data (as it is stored in the Online Service) in a comma separated values (CSV) format together with digital images and other uploaded files;
• (b) We are under no obligation to You to retain or store Your Data following termination of this Service Agreement;
• (c) Deletion of Your Data, whether by Us in accordance with clause 5.3(a) or upon Us receiving a request from you, will not necessarily cause a permanent destruction and removal of Your Data and Your Data (in whole or in part) may continue to be retrievable; and
• (d) We may disclose Your Data to third parties (including but not limited to regulatory authorities) if required to do so by law.

5.4. Your Data may include Your personal information, or the personal information of Your customers and patients. We will use and manage this personal information in accordance with Our Privacy Policy, a copy of which may be found on Our Website. You acknowledge and confirm Your consent for Us to use such personal information in accordance with Our Privacy Policy.

5.5. If any of Your Directors, shareholders, business partners or owners hold an interest in another clinic or business and You request Us to make Your Data available to such other clinic or business, We shall do so upon receiving signed consent in writing from all Your Directors (in the case of a company) or all Your owners and/or business partners (if you are a sole trader or partnership).

5.6. You acknowledge and agree that We may use Your Data for anonymous statistical analysis and comparative purposes.

5.7. The following shall apply if You sell Your business to a third party who will acquire the rights to Your Data:

• (a) The migration of Your Data to such third party will be completed in accordance with such protocols or procedures as we may require in our discretion;
• (b) We may charge a reasonable additional Fee for the additional services required to complete such migration of Your Data;
• (c) You will have no ongoing right of ownership or access to Your Data after the migration has been completed;
• (d) You will indemnify us for any claims or demands made against us by such third party in relation to the accuracy or completeness of Your Data which is the subject of such data migration; and
• (e) You will release us from any claims you may have against us in relation to the inadvertent disclosure of any Confidential Information to such third party that may be contained in Your Data.

5.8. We reserve a right to refuse to perform any data modifications, deletions, updates or any other manipulations if we suspect that those changes could be a part of a fraud or illegal activity.

6.1. In respect of all Personal Information You provide to Us:

• (a) You warrant that the Personal Information is collected in accordance with Privacy Laws;
• (b) You warrant that the person to whom the Personal Information relates consents to the collection of the information and its disclosure to Us; and
• (c) You warrant that the person to whom the Personal Information relates has been made aware of the matters of which an individual is required under Privacy Law to be made aware when Personal Information about them is collected;
• (d) You acknowledge that the information is provided to Us for data management purposes only and that you remain responsible for ensuring that the Personal Information is managed in accordance with Privacy Law; and
• (e) You acknowledge that if this Service Agreement expires or is terminated, Your Data (including Personal Information) will be returned to You and not retained by Us. You will be responsible for ensuring that all Personal Information is managed and retained in accordance with Privacy Law.

6.2. In respect of any Personal Information We disclose to You (including Personal Information contained in Your Data), You must:

• (a) not use or disclose the Personal Information except in accordance with Privacy Law;
• (b) take all reasonable steps to ensure that the Personal Information is protected from misuse or loss, and from unauthorised access, modification or disclosure; and
• (c) generally comply with Privacy Law.

6.3. In respect of any Personal Information contained in Your Data, You must:

• (a) comply with any reasonable request or direction from Us which relates to the protection or handling of the Personal Information (including a request or direction arising out of a complaint);
• (b) co-operate with any inquiry or investigation by a Privacy Commissioner or other official responsible for investigation of complaints under Privacy Laws;
• (c) inform Us as soon as practicable if You receive a privacy complaint.

7.1. Any Support provided to You in relation to the Online Service will be provided in accordance with the terms specified in the Service Schedule. You must submit any requests for support to Us by email support@praktika.com.au or such other method as we direct from time to time.

7.2. You acknowledge We can rely on the directions provided to us by the Authorised Person named in the Service Schedule, acting on Your Behalf. Such directions may include, for example, directions relating to Your Data, changing permissions, and changing other aspects to the way We provide the Online Service to You.

8.1. Unless otherwise expressly agreed to the contrary by Us:

• (a) the Fees must be paid on a monthly basis into an account nominated by Us;
• (b) the Fees are fixed and may not increase during the Initial Term. The Fees payable by You after the Initial Term will be then at the applicable rate as specified by Us from time to time which may increase at our discretion; and
• (c) the Fees are exclusive of any Taxes. You agree to pay all Taxes which may be levied on the Fees in addition to and at the same time as paying the Fees to Us.

8.2. You agree that should You fail to pay any monies due and payable to Us for the access and use of the Online Service, and the Support, by the date they are due (whether under this Service Agreement or otherwise), We may, in our sole and absolute discretion, suspend or terminate Your right to receive Support or to access the Online Service. You release us from any liability whatsoever for any loss or damage you may incur as a result of such suspension or termination.

8.3. You agree that should You fail to pay any monies due and payable to Us for the access and use of the Online Service, and the Support, by the date they are due, We may charge You an administrative fee of $15.00.

8.4. If You pay the Fees by cheque and the cheque is dishonoured, You agree to pay Us a fee of $15.00. If you pay the Fees by direct debit and Your payment is declined, You agree to pay Us a fee of $10.00.

8.5. In the event of You being in default of Your obligation to pay and the overdue account is then referred to a debt collection agency, and/or law firm for collection You shall be liable for the recovery costs incurred.

9.1. You retain ownership of all Intellectual Property Rights in Your Data.

9.2. Subject to clause 8.1, We retain ownership of all Intellectual Property Rights in and to the Online Service and the results of the Support. You do not have the right to develop any products based on the Online Service or results of the Support, or any use any Intellectual Property Rights in the Online Service or the results of the Support.

9.3. In accessing and using the Online Service, You will not: (a) reverse engineer, decompile or disassemble the Online Service or the results of the Support; (b) use the Online Service or the results of the Support to develop copycat or derivative goods or services based on such Intellectual Property Rights or (c) make the Online Service, or the results from the Support, available to any unauthorised by Us party.

10.1. Each party must treat all Confidential Information of the other party as confidential and must not, without the prior written consent of the first party, disclose or permit the other party's Confidential Information to be disclosed to any third party. We may, however, disclose Your Confidential Information where We are required to do so for the purposes of providing the Online Service and Support to You.

10.2. Each party agrees to promptly inform the other party if the first party becomes aware of any unauthorised use or disclosure of the other party's Confidential Information, or if a party is required by law to disclose the other party's Confidential Information.

11.1. This Service Agreement may be terminated, subject to clause 11.2, at any time by either party giving no less than thirty (30) calendar days written notice to the other party. The notice must specify the effective Termination Date being the date upon which this Agreement and your access to the Online Service ends.

11.2. We may terminate this Service Agreement immediately if You remain in breach of this Service Agreement fourteen (14) calendar days after we have given you a notice to remedy such breach.

11.3. Upon termination of this Service Agreement, Your right to access and use the Online Service, and to be provided with Support will immediately cease.

11.4. If:

• (a) We terminate this Service Agreement under clause 11.1 during the Term, We will refund to you on a pro-rata basis, any amounts which You have prepaid; or
• (b) We terminate this Service Agreement under clause 11.2 during the Term, We will not refund to you any amounts which You have prepaid; or
• (c) You terminate this Service Agreement during the Term, You agree that we may retain all prepaid amounts and that you will pay us the entire Fee payable to and including the Termination Date.

11.5. Each provision of this Service Agreement capable of having effect after termination or expiry and each representation and warranty made in this Service Agreement will survive the execution, delivery and termination or expiry of this Service Agreement.

12.1. You acknowledge that We have not made any warranties that the Online Service and the results from the Support are error free.

12.2. You acknowledge that You have exercised Your independent judgment in deciding to purchase, access and use the Online Service and the Support and have not relied upon any representations made by Us which have not been stated expressly in this Service Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Us.

12.3. You acknowledge that the Online Service and the results from the Support may have inherent defects, errors or deficiencies which cause interruptions or downtime or effect the operation of the Online Service.

12.4. You acknowledge that the Authorised Person named in the Schedule is authorised to liaise with us on behalf of You in a legally binding manner. You agree to notify Us promptly if the Authorised Person changes.

12.5. You must promptly notify us of any change to the underlying control of You if You are an incorporated entity, including:

• (a) Any change of majority ownership of the Shares; and
• (b) Any changes to the officeholders, including Directors and Company Secretary.

12.6. If You are entering into this Agreement in your capacity as Trustee of a Trust ("the Trust"), You warrant that at the date of this Service Agreement:

• (a) all powers granted to You pursuant to the Deed of Settlement for the Trust are capable of being validly exercised by You as Trustee and have not been varied or revoked;
• (b) the Trust is valid and subsisting at the date of this Service Agreement;
• (c) You are the sole Trustee of the Trust and You have sole and absolute power under the terms of the Trust to enter into and be bound by this Service Agreement and that this Service Agreement is being entered into as part of the due and proper administration of the Trust and for the benefit of the beneficiaries of the Trust; and
• (d) no restriction on Your right of indemnity out of or lien over the Trust's assets exists or will be created or permitted to exist and that right of indemnity will have priority over the right of the beneficiaries of the Trust's assets.

12.7. You acknowledge and agree that:

• (a) You are responsible for, and must ensure that, Your Authorised Employees comply with the terms of this Service Agreement;
• (b) unless otherwise specified by Us, the Online Service may only be accessed and used via the Website;
• (c) You and Your Authorised Employees may only access and use the Online Service using a username and password supplied by Us;
• (d) We reserve the right to require You or Your Authorised Employees to change Yours or their password at any time;
• (e) You must ensure that You take all reasonable steps to ensure that any usernames or passwords provided to You by Us remains confidential and are not disclosed to any unauthorised person;
• (f) You will be solely responsible for any use or misuse of the Online Service or any breach of this Service Agreement using Your user name and password, and for any loss and/or damage which We may suffer as a result of such misuse or breach by You. You must notify Us immediately if You become aware or suspect that any unauthorised person is accessing the Online Service using Your username and password; and
• (g) You are responsible for informing Us in writing when the access and use privileges of Your Authorised Employees should be revoked or suspended temporarily.

12.8. You agree that You will not use the Online Service:

• (a) in an illegal manner or use the Online Service for any conduct which is offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
• (b) to impersonate any person, company or business in any way whatsoever;
• (c) to infringe the Intellectual Property Rights of any third party;
• (d) to send, receive or store viruses, worms, spyware, adware, trojans or other harmful, disruptive, or destructive computer-assisted files;
• (e) in such a way as to deny access to the Online Service to other users of the Online Service; and
• (f) in a way that degrades the performance of the Online Service for other users.

13.1. You acknowledge that We have not made and will not make any express or implied warranties in relation to the Online Service or the results from the Support or any other goods or services provided by Us under this Service Agreement, other than those warranties expressly contained in this Service Agreement. Any term that would be implied into this Service Agreement, including without limitation any condition or warranty, is hereby excluded.

13.2. The Competition and Consumer Act 2010 and corresponding legislation in other jurisdictions in certain circumstances imply mandatory conditions and warranties into agreements. This clause does not exclude or limit the application of any such warranties or any other warranties where to do so would:

• (a) contravene the law of the relevant jurisdiction; or
• (b) cause any part of this Service Agreement to be void.

13.3. We exclude all terms, conditions and warranties implied by custom, the general law or statute except any warranties outlined in this clause 13.

13.4. Our liability to You for breach of any of the warranties detailed in this clause 13.2 is limited, at Our option to:

• (a) for services:
  • (i) providing those services again; or
  • (ii) paying the cost of having those services provided again;
• (b) for goods:
  • (i) replacing the goods that breach the warranty; or
  • (ii) paying the cost of replacing the goods that breach the warranty.

13.5. You agree that We will not be liable in respect of any claim by You (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with Your access or use of the Online Service or the results of the Support or the provision of any other goods or services under this Service Agreement and whether as a result of any negligence, breach or default, by Us. In the event that We have any liability to You under this Service Agreement, that liability will be capped at the lesser of:

• (a) the Fee paid by You to Us over the prior 12 month period; or
• (b) AUD $1,000.

14.1. You indemnify, and will keep indemnified, Us and each of Our officers, agents, employees and contractors, from and against any losses, damages, costs or expenses (including legal costs assessed on the solicitor and own client basis) which We or any of Our officers, agents, employees or contractors may suffer or incur arising out of or in connection with:

• (a) any breach of this Service Agreement by You;
• (b) any wilful, unlawful or negligent act or omission by You; or
• (c) Your access and use of the Online Service, and the results from the Support.
• (d) any failure by You to comply with Privacy Law in respect of Personal Information contained in Your Data.

14.2. You agree to ensure that each of Your employees, subcontractors and agents who use the Online Service comply with each of Your obligations under this Agreement as if they were their own obligations.

15.1. Your Directors, being the persons named in the Schedule, hereby jointly and severally personally guarantee the due payment by You to Us of all present and future debts, monies, charges and interest payable by You to Us pursuant to this Service Agreement and they hereby jointly and severally undertake to Us that they will pay such debts, monies, charges and interest forthwith upon receiving a demand from Us.

15.2. As a separate and independent obligation, the Directors hereby jointly and severally undertake to keep Us indemnified against all losses, interest and other monies payable pursuant to this Service Agreement and all losses, costs, charges and expenses whatsoever which We may incur by reason of any default or repudiation on the part of You.

15.3. This guarantee will be a continuing guarantee to Us for or on account of You; any neglect or forbearance on the part of Us in enforcing payment of any of the moneys payable pursuant to this Service Agreement or the performance or observance of any of the parties' obligations; time being given to You for any such payment, performance or observance; or by any other thing which under the law relating to sureties would but for this provision have the effect of releasing You.

15.4. In the event we receive any payment from You or on your behalf that reduces the amount You owe us, and any part of that payment is later declared to be void for any reason under law (including in the course of a liquidation), the amount that is guaranteed by the Directors will include that voided amount. Further, any discharge or partial discharge of the obligations of the Directors pursuant to this Clause 15 will be conditional upon no such declaration being made.

15.5. The Directors must not seek to recover any monies owing to Us by You until We have been paid in full for all amounts owing to Us by You. Further, the Directors shall not prove in the bankruptcy or winding up of You for any amount We have demanded from the Directors pursuant to this Guarantee and Indemnity.

15.6. This Guarantee and Indemnity and the agreements and obligations contained in this Clause 15 will be binding upon the Directors, their executors and administrators.

16.1. In the interpretation of this Service Agreement, unless the contrary intention appears:

• (a) a reference to this Service Agreement means a reference to this agreement including the terms and conditions contained therein and includes an amendment or supplement to, or replacement or novation of, this Service Agreement;
• (b) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
• (c) the singular includes the plural and vice versa;
• (d) a reference to any gender includes a reference to all other genders;
• (e) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
• (f) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
• (g) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
• (h) headings are inserted for convenience only and do not affect the interpretation of this Service Agreement.

16.2. We may amend the terms and conditions of this Service Agreement at any time following the end of the Initial Term. Such amendments will take effect from the date of their notification to You. You agree that without limiting the ways in which You may be bound by such amendments, You will be deemed to have agreed to such amendments by making use of or accessing the Online Service after the date of notification.

16.3. This Service Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to its subject matter and sets forth the entire and exclusive agreement and understanding between You and Us relating to the subject matter of this Service Agreement.

16.4. Any provision of or a right created under this Service Agreement may not be waived, except in writing, signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Service Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Service Agreement are cumulative with, and not exclusive of, any rights, powers or remedies provided independently of this Service Agreement.

16.5. If any provision of this Service Agreement is judged invalid or unenforceable for any reason whatsoever, by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Service Agreement. The invalid or unenforceable provision will be treated as severed from this Service Agreement.

16.6. We may assign Our rights and novate or transfer Our obligations which arise under this Service Agreement without notice to You.

16.7. The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Service Agreement or part of it.

16.8. You may not sub-licence, deliver, transfer, assign or novate any of Your rights or obligations under this Service Agreement to any other person without the prior written consent of Us (which may be withheld).

This Service Agreement shall be construed in accordance with and shall be governed by the laws in force in the State of Victoria. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Victoria or the Commonwealth of Australia and any courts of appeal from these Courts.