PRACTICE PROTECT AUSTRALIA PTY LTD d/b/a PRACTICE PROTECT AND/OR ITS AFFILIATES (“PRACTICE PROTECT”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND PRACTICE PROTECT MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND PRACTICE PROTECT. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1. Access and Use
1.1 Access and Use. Subject to payment of all applicable fees set forth in the Order and your compliance with the terms and conditions of this Agreement, Practice Protect grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation, in the quantity and with the functionality specified in the applicable Order. Customer will operate the SaaS Products in accordance with the Documentation and be responsible for the acts and omissions of its Authorized Users.
1.2 Access and User Restrictions. Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or Practice Protect Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive purpose; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or Practice Protect Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products to infringe on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) send, store or process in the SaaS Products any personal health data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Customer’s authorized use of the SaaS Products is subject to the purchased quantities and features set forth in the applicable Order for the SaaS Products. Fees for the SaaS Products are based on use of the SaaS Products in a manner consistent with the Documentation. If Customer uses the SaaS products in a manner that is outside or in violation of the Documentation, then Customer will cooperate with Practice Protect to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.
1.3 Login Access to the SaaS Products. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in proper use of the SaaS Products, and (iii) proper usage of passwords, tokens and access procedures with respect to logging into the SaaS Products. Practice Protect reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Practice Protect will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, Practice Protect may suspend Customer’s access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and Practice Protect reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. Practice Protect will provide notice prior to such suspension if permitted by applicable law or unless Practice Protect reasonably believes that providing such notice poses a risk to the security of the SaaS Products. Practice Protect will promptly reinstate Customer’s access and use once the issue has been resolved.
1.4 Third Party Materials. The SaaS Products include Third-Party Materials subject to their respective OSS Licenses as indicated in the Documentation, where applicable. Practice Protect warrants that such Third-Party Materials will not diminish the license rights provided to Customer herein or limit Customer’s ability to use the SaaS Products in accordance with the Documentation, or create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any.
1.5 Support. As part of its provision of the SaaS Products, Practice Protect shall make available technical support to Customer in accordance with Practice Protect’s then applicable SaaS support terms. Upon notification from Practice Protect, Customer shall promptly update any Agents on Customer systems that interact with the SaaS Products. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the SaaS Products, security risks or suspension of Customer’s access to the SaaS Products, without any liability on the part of Practice Protect to Customer. Implementation of SaaS Products shall be conducted by Practice Protect in accordance with the Documentation. Practice Protect also provides limited configuration support. Customer shall be responsible for the performance of configuration actions to be undertaken on its systems by its IT support personnel. Practice Protect will have no liability for any system performance, security or other issues or actions that result from Customer’s failure to properly configure its systems as part of the implementation process. The Parties liability will be allocated in the case of any resulting data breach where contributing causes occurred resulting in the breach.
1.6 Out of Scope Support. Practice Protect’s support and service level agreement applies to the following support services:
a. rectification of a technical configuration that was previously working; and
b. assisting users to gain access to systems or provide adds/modifications/removals to permissions related requests
Any support that does not relate to the services set out in (a) and (b) of this clause, including (but not limited to) consulting requests, technology advice, a major architectural change, merges or splits of a Customer’s business, will be referred to Practice Protect’s consulting team and a quote for such work will be provided to the Customer. For the avoidance of doubt, consulting and architectural change requests are not covered under the service level agreement.
1.7 Mobile Applications. With regard to SaaS Products that require the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Customer further acknowledges and agrees that the SaaS Products may not properly operate should any Authorized User fail to do so, and that Practice Protect is not liable for any damages caused by a failure to update mobile applications accordingly.
1.8 Acceptable Use Policy. All Customers and Authorized Users must comply with Practice Protect’s following acceptable use policies:
a. General professionalism: Practice Protect will not tolerate abuse of its staff in any form. All complaints are to be referred to our client success team at [email protected].
b. Excessive or superfluous use of support: Practice Protect has an average tickets per user ratio which reflects the average number of tickets that a user submits per month. If the Customer exceeds this amount by 50% or more during a given month, Practice Protect reserves the right to terminate this agreement.
In the event of the Customer (or an Authorized User) not complying with the above acceptable use policies, Practice Protect may, at its sole and absolute discretion, terminate this Agreement. For the avoidance of doubt, the Customer is liable for the acts of its Authorized Users.
1.9 Digital Service Provider (DSP) Applications. All Customers and Authorized Users accessing DSP applications via the SaaS Products, must comply with the Australian Taxation Office’s Operational Security Framework (ATO OSF). The ATO OSF does not permit: (a.) Shared logins. Each Authorized User must have their own login to a DSP application and must not share their login credentials with anyone via the the sharing feature or otherwise; and (b.) Storage of a multi-factor authentication (MFA) key within a DSP application and/or the sharing of a MFA key with anyone. The use of a time-based one-time password via a DSP application is permitted. Practice Protect may, from time to time and at any time, conduct an audit of a Customer’s (and Authorized User’s) use of DSP applications via the SaaS Products. In the event that Practice Protect becomes aware (whether by an audit or otherwise) of a Customer (or Authorized User) not complying with this clause, Practice Protect will contact the Customer (and Authorized User) and require immediate compliance with the ATO OSF.
2. Payment and Taxes
2.1 Payment Terms for Subscriptions. Customer subscriptions are for a minimum of 12 months from the date of acceptance (Subscription Term). Once the Order is processed, your subscription will begin. This applies to both monthly and annual billing cycles as noted in the Order and Orders may be placed calling for monthly or annual payments. Payment is by automated subscription via credit card in advance. Customer’s subscription will automatically renew for a period equal to the Initial Term, and your credit card will be automatically charged the then current fees for the subscription type or service(s) you’ve selected on a recurring basis unless Customer cancels the subscription at least 30 days prior to the renewal date. For more details regarding billing terms and cancellation policies please use this link Billing & Subscription Details – Practice Protect Support. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance.
2.2 Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. Practice Protect shall include the Indirect Taxes in its charges to Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law. For the avoidance of doubt, Practice Protect will be responsible for direct taxes imposed on Practice Protect’s net income or gross receipts in its tax jurisdiction.
2.3 Chargeback arrangements. You acknowledge that Practice Protect will:
a. be expending significant resources to ensure you have the benefit of the SaaS Products under the terms of this Agreement; and
b. suffer loss and damage if you procure any chargeback arrangement with your financial institution once Practice Protect has supplied you with access to the SaaS Products.
2.4 Liquidated damages. In the event that you procure a chargeback arrangement with your financial institution after Practice Protect has granted you access to the SaaS Products, you must pay Practice Protect, as liquidated damages, $5,000 on account of the loss and damage that Practice Protect stands to suffer or incur.
2.5 Genuine pre-estimate. You acknowledge that the liquidated damages stipulated in clause 2.4 is a genuine pre-estimate of the damages that Practice Protect stands to suffer or incur in the event that you procure a chargeback arrangement once Practice Protect has supplied you with access to the Saas Products.
3. Compliance Documents
3.1 Licence. Practice Protect grants Customer a non-exclusive, non-transferable licence to access and use the Compliance Documents for the duration of the Subscription Term: (a) in consideration of Customer paying all applicable fees set forth in the Order, and (b) provided Customer complies with the terms and conditions of this Agreement.
3.2 Termination of Licence. Upon the expiration or termination of the Subscription Term: (a) the licence to access and use the Compliance Documents immediately ceases and the Customer will have no further right to access or use the Compliance Documents, and (b) the Customer must return or destroy (at Practice Protect’s discretion) any Compliance Documents within its possession or control.
4. Rights in Intellectual Property
4.1 Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, Compliance Documents and Practice Protect Intellectual Property are hereby reserved by Practice Protect, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.
4.2 Customer Data.
4.3 Usage Data and Suggestions. Practice Protect shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer’s benefit. In the event Practice Protect wishes to disclose Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be anonymized and presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way Practice Protect’s confidentiality obligations pursuant to section 4 below. To the extent that Customer provides Practice Protect with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Practice Protect pursuant to this Agreement, and may be implemented by Practice Protect in its sole discretion. Customer acknowledges that any Practice Protect products or materials incorporating any such Suggestions shall be the sole and exclusive property of Practice Protect.
5. Confidentiality
5.1 Confidential information. The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the purposes of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.3 and not section 4 herein apply to Customer Data.
5.2 Exceptions. Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
5.3 Advertising and Publicity. Neither Party shall make or permit to be made any public announcement concerning the relationship between the Parties without the prior written consent of the other Party. Practice Protect may publish case studies and positive Customer feedback on social media. Practice Protect will notify Customer in order to request permission to do so, such consent not to be unreasonably withheld.
6. Security and Process of Personal Data
6.1 Customer Data Content. As between Practice Protect and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with Practice Protect (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
6.2 Data Protection Laws. The Parties shall comply with their respective obligations under the Applicable Data Protection Laws. In particular, if Customer is established in the European Economic Area (“EEA”), in the United Kingdom (“UK”) or in California, or will, in connection with the SaaS Products, provide Practice Protect with personal data relating to an individual located within the EEA, the UK or California, the Parties shall comply with the Applicable Data Protection Laws as required within such jurisdiction. In this respect, Practice Protect shall be deemed a subprocessor or service provider (as the case may be) and is authorized to process data on Customer’s behalf in accordance with this authorization.
6.3 Security of Customer Data. Practice Protect shall: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Practice Protect shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term.
6.4 Insurance.
a. On and from the commencement of this Agreement, in addition to effecting and maintaining all compulsory insurances, the Customer will effect and maintain cyber insurance with an independent and reputable insurance provider.
b. Upon request from Practice Protect, the Customer must provide certificates of currency in relation to the above insurance policies. Practice Protect may at its discretion request, and the Customer must promptly provide, a copy of any required insurance policy (including the policy wording, schedule and any renewal certificates).
c. Without limiting the obligations under clause 6.4a), the Customer must give Practice Protect immediate notice of any proposed cancellation of the insurance specified in this clause 6.4.
d. In the event that the Customer breaches its obligations under clause 6.4a), it releases Practice Protect and/or its Affiliates and their officers, directors and employees from and against any Claims or Loss arising out of or in connection with the Customer’s failure to obtain the insurance specified by this clause 6.4, including (for the avoidance of doubt) for any Claims or Loss that you suffer or incur as a result of an event that would have been insured had you complied with your obligations under this clause 6.4.
e. The Customer shall defend and indemnify Practice Protect and/or its Affiliates and their officers, directors and employees against any Claims or Loss arising out of or in connection with a breach of this clause 6.4.
7. Standard and Default Security Measures. If the Standard and Default Security Measures are not implemented and a breach occurs, the Customer:
a. assumes all responsibility and liability for any Claim or Loss; and
b. releases and indemnifies Practice Protect from and against any Claim or Loss, arising out of or in connection with the Standard and Default Security Measures not being implemented.
8. Warranties.
8.1 SaaS products warranty. During the applicable Subscription Term, Practice Protect warrants that the SaaS Products will perform in substantial conformity with the Documentation, and that the SaaS Products are not designed to contain viruses, worms, Trojan horses or other unintended malicious or destructive code. The foregoing warranties are void if the failure of the SaaS Products has resulted from negligence, error, or misuse of the SaaS Products by Customer, the Authorized User or by anyone other than Practice Protect. Customer shall be required to report any breach of warranty to Practice Protect within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. Practice Protect’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties will be for Practice Protect, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if Practice Protect fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, Practice Protect shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Products.
8.2 Compliance with Law. Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
8.3 Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period in this Agreement. To the maximum extent allowed by applicable law, Practice Protect disclaims all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. Practice Protect will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by Practice Protect.
9. Indemnification
9.1 Infringement Indemnity. Practice Protect shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the SaaS Products in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
9.2 Customer Data and Use Indemnity. Customer shall defend and indemnify Practice Protect and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s patent, copyright, trademark, trade secret; or (ii) Practice Protect’s use of the Customer Data, in accordance with the terms of this Agreement, violates applicable law; and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
9.3 Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
9.4 Exclusions. The above Practice Protect obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the SaaS Products not in accordance with the Documentation and this Agreement; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification, alteration or conversion of the SaaS Products not created or approved in writing by Practice Protect; (d) any combination or use of the SaaS Products with any computer, hardware, software, data or service not required by the Documentation; (e) Practice Protect’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
9.5 Remedies. If the SaaS Products becomes, or Practice Protect reasonably determines that the SaaS Products is likely to become, subject to a claim of infringement for which Practice Protect must indemnify Customer as described above, Practice Protect may at its option and expense: (a) procure for Customer the right to continue to access and use the SaaS Products, (b) replace or modify the SaaS Products so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SaaS Products, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Product. This section states the sole liability of Practice Protect and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
10. Limitation of Liability
10.1 Maximum Liability. Except for liability caused by Practice Protect’s intellectual property infringement indemnification obligations in section 7.1, Customer’s data infringement indemnity in section 7.2, and Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to Practice Protect under this Agreement during the twelve (12) month period preceding the date of initial claim.
10.2 No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
10.3 Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
11. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
12. Restricted Rights and Export Control.
12.1 Export Control. The exportation of the SaaS Products and Documentation, and all related technology and information thereof are subject to U.S. laws and regulations pertaining to export controls and trade and economic sanctions, including the U.S. Export Administration Act, Export Administration Regulations, the Export Control Reform Act, and the Office of Foreign Assets Control’s sanctions programs, the laws of the State of Israel, and the laws of any country or organization of nations within whose jurisdiction Customer (or its Authorized Users who may use or otherwise receive the SaaS Products as expressly authorized by this Agreement) operates or does business, as amended, and the rules and regulations promulgated from time to time thereunder. Specifically, Customer hereby undertakes not to export, re-export, access or grant access to the SaaS Products and all related technology, information, materials and any upgrades thereto to: (a) any Prohibited Persons; (b) any country to which such export, re-export or access from is restricted or prohibited per the foregoing applicable laws; or (c) otherwise in violation of any applicable export or import restrictions, laws or regulations. Customer also certifies that it is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person.
12.2 Commercial Computer Software. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that: (i) the SaaS Products (including any software forming a part thereof) were developed entirely at private expense; (ii) the SaaS Products (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Practice Protect; (iii) the SaaS Products (including any software forming a part thereof) are not in the public domain; and (iv) the software forming a part of the SaaS Products is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR section 252.227-7014 or FAR Part 12.212. Customer shall provide no rights in the Software (including any software forming a part thereof) to any U.S. Government agency or any other party except as expressly provided in this Agreement.
13. Professional Services. Customer may separately purchase from Practice Protect professional services in relation to the SaaS Products as may be generally available by Practice Protect to its customers, pursuant to Practice Protect’s then applicable professional services terms.
14. Term and Termination.
14.1 Term and Renewal. This Agreement will be effective upon completion of an Order via the automated subscription portal and shall remain in force during the applicable Subscription Term of the SaaS Products unless or until terminated by either Party pursuant to this section. Customer’s subscription will automatically renew for a period equal to the Initial Term unless Customer cancels the subscription at least 30 days prior to the renewal date by providing written notice of intent to terminate to Practice Protect at the address set forth in Section 13.2 “Notices” or via email at [email protected].
14.2 Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, or cease provision of the SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. Practice Protect reserves the right to suspend Customer’s access to the applicable SaaS Products if: (i) a payment is more than twenty one (21) days past due and the subscription will be cancelled, and access permanently disabled, if payment is not made within 28 days after the initial due date; or (ii) if there is an uncured material breach of this Agreement. Practice Protect will promptly reinstate Customer’s access and use of the SaaS Products/provision of the Professional Services once the issue has been resolved or payment made. Any accrued rights and obligations will survive termination.
14.3 Effects of Termination/Expiration. Upon termination or expiration of an applicable Subscription Term: (i) Customer will have no further right to access or use the SaaS Products, Documentation or Practice Protect’s Intellectual Property; (ii) if the Customer continues to use the Documentation and/or Practice Protect’s Intellectual Property after the termination/expiration of its applicable Subscription Term, it will incur an additional fee of $10,000, which is equivalent to the cost of Practice Protect having such documents prepared; (iii) each Party shall within thirty (30) days after written request return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products. Any Customer Data contained on the SaaS Products will be deleted within sixty (60) days of termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and Practice Protect shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data after such sixty (60) day period. Following termination of the SaaS Products, Practice Protect may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination; and (iv) the Customer acknowledges that Practice Protect will not refund any fees (or any pro-rated portion of fees) paid in advance by the Customer in respect of any services that have not, or will not, be delivered as a result of the termination of the Subscription Term.
15. Miscellaneous
15.1 Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Practice Protect and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
15.2 Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for Practice Protect should be sent to the following addresses: (i) for physical Notices the address is Unit 2A/305 Montague Rd, West End Queensland, 4101 Australia and; (ii) for electronic Notices to: [email protected].
15.3 Force Majeure. With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
15.4 Governing Law & Jurisdiction. Each Party agrees to the applicable governing law of Australia without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts located in Australia with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
15.5 Entire Agreement, Execution, and Modification. This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by Customer will be of no force or effect, even if the Order is accepted by Practice Protect. Practice Protect may make changes to these Terms of Service from time to time. If Practice Protect makes a material change to any of the foregoing, Practice Protect will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from Practice Protect), or through a banner or other prominent notice within the SaaS Products, or through the Practice Protect support platform. If Customer does not agree to the change, Customer must so notify Practice Protect by e-mail to [email protected] within thirty (30) days after Practice Protect’s notice. If Customer so notifies Practice Protect, then Customer will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.
15.6 Severability and Waiver. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
15.7 Definitions and Interpretation. The following definitions and rules of interpretation apply in this Agreement:
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).
“Agents” means Practice Protect’s and its licensors proprietary software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by Practice Protect in connection with the SaaS Products.
“Applicable Data Protection Laws” means the EU General Data Protection Regulation (2016/679) (“GDPR”), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), and the California Consumer Privacy Act, in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply.
“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by Customer to use the SaaS Products solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“Claims” means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise.
“Compliance Documents” means the privacy policy, third party access agreement, cyber incident response plan, information security plan, IT and internet usage policy, and any other compliance documents that are made available from time to time by Practice Protect in electronic or tangible form.
“Confidential Information” means all information provided by the disclosing Party to the receiving Party concerning the disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing Party at the time of disclosure.
“Customer Data” means all data and/or content uploaded to the SaaS Products by Customer (including where applicable Authorized Users), and in all data derived from it, including personal data. For the avoidance of doubt, Customer Data does not include Usage Data.
“Practice Protect” means the Practice Protect legal entity specified herein above, at the address specified in Section 13.2 “Notices.”
“Documentation” means the user guides, installation documents, security fundamentals documentation, and specifications for the SaaS Products that are made available from time to time by Practice Protect in electronic or tangible form, but excluding any sales or marketing materials.
“Indirect Taxes” means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal or state).
“Intellectual Property” means a Party’s proprietary material, technology, or processes (excluding the SaaS Products and Documentation), including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
“Loss” means any liability, cost or expense suffered or incurred by a party (whether actual or contingent).
“Notice” means any notice or other communication required or permitted under this Agreement.
“Order” means Practice Protect’s terms are accepted by Customer via the Practice Protect online automated subscription portal as submitted to Practice Protect to order Practice Protect’s SaaS Products, which references the SaaS Products, pricing, payment terms, quantities and other applicable terms set forth in this Agreement and the subscription portal.
“OSS Licenses” means the respective open source licenses that the Third-Party Materials are subject to.
“Prohibited Persons” means anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list.
“SaaS Products” means the software-as-a-service products specified in the Order as further described in the Documentation (including any updates and upgrades to the SaaS Products provided by Practice Protect in its sole discretion, and any software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by Practice Protect in connection with the SaaS Products).
“Standard and Default Security Measures” means the following.
“Subscription Term” means the period of time during which Customer is subscribed to the SaaS Products, as specified in an Order and which shall begin upon delivery of the SaaS Products.
“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the SaaS Products suggested by Customer to Practice Protect, which constitute Intellectual Property rights under applicable law.
“Third-Party Materials” means open source software programs that are made available by third parties under their respective OSS Licenses.“Usage Data” means data generated in connection with Customer’s access, use and configuration of the SaaS Products and data derived from it (e.g., types of applications or accounts utilized or interacting with the SaaS Products).
Any words following the terms including or include shall be regarded as examples only and not construed as an exhaustive list.
Should Customer have any questions concerning this Agreement, or if Customer desires to contact Practice Protect for any reason, please e-mail us at: [email protected].