Cubiko Project X - Subscriber Agreement

Who we are

This web site (“the site”) and the Cubiko business are owned and operated by Cubiko Pty Ltd (ACN 640 999 391) (“we,” “us”). This

document describes our policy about our management of personal information.

Key Details

Parties

You (the individual and (if applicable) the entity entering into the Agreement) (Client)

and

Cubiko Pty Ltd ACN 624 244 140

Address: 22 Constance Street, Fortitude Valley, Brisbane, Qld 4006

Email: [email protected]

Service Cubiko Project X
Best Practice Licence Count:
Not Required for Cubiko Project X
Fees:
Cubiko Project X is provided free of charge ($0)
Start Date:
The Start Date is set to the date of acceptance of this Subscriber Agreement
Subscription Term:
6 months commencing on the Start Date

These terms govern the relationship between Cubiko Pty Ltd (ACN 624 244 140) (‘we,’ ‘us,’ ‘our’) and subscribers to our services (‘you,’ ‘your’).

Please read the terms carefully. These terms may be changed by us from time to time. Changes are published on the Cubiko website. Changes take effect on and from your next subscription renewal.

1. Definitions

In these terms:

Fee” means the fee payable for the Services as detailed in the Proposal
IP Rights” is an abbreviation for “intellectual property rights” and includes copyright, patent rights, brand and trade mark rights, rights associated with databases, rights associated with trade secrets and confidential information, and the right to exploit, register or enforce any of those rights anywhere in the world.
Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
Privacy Policy” means the policy that is available at https://www.cubiko.com.au/privacy-policy.
Services” means the various services offered by us from time to time of obtaining Your Data, the analysis of that data by our systems and presentation of various analyses of that data to your designated personnel to support your business operations and decision-making. We may offer variations of the services under different names and with different functionality
Service Level Commitment” means the service level agreement set out in Annexure A.
Subscription Term” means the period stated in the Key Details.
Users” means those individuals authorised by you to use the Services. 
Your Data” means all data and information of any kind that we are provided accesses to by you in the course of providing the Services, whether or not confidential and including data and information that is:
(a) confidential information and personal information of you and your patients;
(b) stored in, processed by or retrievable from your systems; or
(c) otherwise made available to us by you in connection with this agreement.

2. Free Services

2.1 We may offer one or more of the Services to you at no charge (“Free Services”) for a period of time.
2.2 Subject to clause 2.4, the parties acknowledge that the terms and conditions of this Agreement fully apply to the parties and any Free Services.
2.3 We may modify or terminate your right to use the Free Services at any time and for any reason in our sole discretion, without liability to you.
2.4 To the maximum extent permitted by law, we disclaim all obligations or liabilities with respect to the Free Services , including any support, warranty and indemnity obligations. Without limitation, support will be provided on an email basis only as and when available.
2.5 If you switch to a paid for subscription or wish to acquire other Services the terms of this agreement will continue to apply.

3. Services

3.1 For the duration of the Subscription Term and while the Fees are paid as per this agreement, you have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of this agreement.
3.2 We will use commercially reasonable efforts to make the Services available in accordance with our Service Level Commitment.
3.3 We:

(a) do not guarantee the uptime of the Services;
(b) rely on the quality of Your Data provided for input to the Services. You acknowledge that the nature of the Services and its outputs relies on the quality and accuracy of Your Data. As a result, we do not warrant that the Services and any analysis output produced by the Services, including any results or forecasts will be suitable for the purpose intended by you; and
(c) will not be liable for any damages caused by your inability to access the Services as a result of network or server downtime, transmission problems or otherwise.

3.4 You may only use the Services for the internal business analysis purposes of the medical practice or practices you have notified to us and from which your Best Practice licence count is derived. You must not use the Services for any other purpose, or on-provide or re-sell any of them. You must not attempt to circumvent any security mechanism or control present in the Services.
3.5 You must use the Services lawfully. You must not permit to be uploaded to us material that is unlawful to possess or transmit, is defamatory, infringes anyone’s IP Rights or interferes with anyone’s privacy.

4. Maintenance

4.1 We may perform scheduled maintenance on the Services from time to time.
4.2 In addition, we may in our sole discretion need to perform emergency or unscheduled maintenance. These maintenance activities may cause interruptions to access to the Services.
4.3 We will use reasonable efforts to inform you in advance of any such Service.

5. Subscription Term

5.1 This Agreement shall commence on the date set out in the Key Details and end upon the expiry of the Subscription Term unless terminated earlier.
5.2 For clarity, you will not be provided with access to the Services until all Fees for the current Subscription Term have been paid in full.
5.3 Upon the end of this agreement or the Services there under, you and your Users’ right to access or use the Services shall terminate unless and until you have paid the Fees for the next Subscription Term.

6. Clinics In Your Group

6.1 We will consider all reasonable requests to extend the Services to you related body corporates and/or general practice clinics on the terms set out in this agreement or as otherwise agreed between us and the applicable parties.

7. Fees

7.1 You will pay all Fees specified in the Key Details.
7.2 The Fee is based on your Best Practice licence count. We consider the count of Best Practice Full-Time Doctor Licences (1), Part-Time Doctor Licences (.5) and Allied Health Licences (.25). If you increase the number of Best Practice licences during the Subscription Term then we may charge an additional Fee, taking into account the increase in your licence count and the proportion of the Subscription Term then remaining. There is no refund or reduction in Fees during a Subscription Term if your licence count reduces during the term, however the Fees for the next Subscription Term will take account of your licence count at the start of that term.
7.3 You undertake to advise us promptly if your Best Practice licence count changes by during a Subscription Term and provide supporting documentation where requested. We may use data provided by you for the purpose of the Services to confirm your Best Practice licence count.
7.4 Unless otherwise stated, all amounts are GST exclusive, and you must pay to us the GST component in respect any supply that we makes under this agreement at the same time as payment for the supply to which it relates.
7.5 Any amount to be reimbursed or paid under an indemnity shall be the sum of the amount of the reimbursable expense net of input tax credits and, if the recovery is a taxable supply, any GST payable.
7.6 The supplier of all taxable supplies must provide the recipient with a valid tax invoice before payment.

8. Invoicing and Payment

8.1 All Fees shall be paid in advance, either annually or in accordance with any different billing frequency stated in the Key Details.
8.2 We will invoice you in advance and otherwise in accordance with the Key Details.
8.3 Unless otherwise stated in the Key Details, invoiced charges are due 30 days from the invoice date.
8.4 If you do not make payment of the Fees as set out in this agreement then we may suspend you and your Users’ access to the Services until payment in full has been made to us.

9. Responsibility for Users

9.1 You are responsible for:
(a) each of your User’s compliance with this agreement;
(b) identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorised access by Users, and for maintaining the confidentiality of usernames, passwords and account information;
(c) all activities that occur under you and your User’s usernames, passwords or accounts or as a result of you or your Users access to the Services, and agrees to notify us immediately of any unauthorised use;
(d) granting to your Users permissions to access various functionality of the Services; and
(e) all of Your Data inputted into the Service by Users as though it were uploaded by you.
9.2 We are not responsible for any harm caused by Users, including individuals who were not authorised to have access to the Services or permission to access certain functionality of the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in your local identity management infrastructure or your local computers.
Termination
9.3 You may terminate this agreement at any time without cause and without liability by giving the other party 60 days written notice.
9.4 If you terminate this agreement under clause 9.3, you will pay us all amounts outstanding up to the date of termination. You acknowledge that termination under this clause will not entitle you to any refund of Fees paid in advance.
9.5 If:
(a) a party commits a material breach of this agreement and fails to remedy that breach within 30 days of receiving notice from the other party requiring it to do so;
(b) if any Fees are more than 60 days overdue; or
(c) an insolvency event occurs in relation to a party,
then the other party may terminate this agreement by written notice to that party, in which case this agreement will terminate immediately.
 

10. IP Rights, privacy and confidentiality

10.1 We own the IP Rights in the Cubiko name and brand, the Cubiko website and app, and in the software and systems we use to provide the Services.
10.2 Except as expressly set out in this clause 10, the parties agree that nothing in this agreement transfers ownership in any IP Rights of a party. For clarity, as between the parties:
(a) you will own all IP Rights in and to any materials provided by you to us in connection with this agreement, including Your Data, as well as any modifications to such materials; and
(b) we will own all IP Rights in the Services and to any materials provided by us as part of the Services under this agreement (excluding third party software and materials), as well as any modifications or improvements to such materials.
10.3 During the Subscription Term, you grant us a licence to access, transfer, store, reproduce, analyse and communicate Your Data, but only for the purpose of providing the Services to you.
10.4 When you use the Services, we may create anonymised statistical data from Your Data and usage of our services, including through aggregation. Once anonymised, we own and may use such data for our own purposes, such as to provide and improve our services, to develop new services or product offerings, to identify trends and undertake benchmarking which is shared with other subscribers. We have rigorous controls in place to ensure Your Data is anonymised and aggregated before we analyse it for benchmarking and statistical purposes. You may opt of this if you have a paid for subscription of the Services by giving written notice to us.
10.5 If our use of IP Rights received from you or Your Data results in us being subject to a claim for infringement of any IP Right of a third party or a claim by a third party, you agree to indemnify us against any claims, demands, damages, costs and expenses made against or suffered by us as a result of any such claim or action.
10.6 If your use of the Services results in you being subject to a claim for infringement of any IP Right of a third party, we agree to indemnify you against any claims, demands, damages, costs and expenses made against or suffered by you as a result of any such claim or action.
10.7 Each party’s liability to indemnify the other party under clause 10.5 and 10.6 will be reduced proportionally to the extent that any negligent act or omission of the indemnified party contributed to the loss.

11. Security of Your Data and Your Systems

11.1 We must use reasonable security measures to protect Your Data against unauthorised access, use or disclosure.
11.2 We must:

(a) establish and maintain safeguards against the destruction, loss, alteration or misuse of Your Data which are no less rigorous than the most stringent of:
(i) those maintained by us for our own information of a similar nature (as updated from time to time); and
(ii) any systems or data security requirements required by applicable law;
(b) provide and maintain up-to-date security, utilising security technologies, and techniques in accordance with industry best practices, with respect to the Services and our systems, networks and facilities, to prevent unauthorised access or ‘hacking’ of its databases, systems and networks and Your Data.

11.3 Unless otherwise agreed between the parties, we are under no obligation to retain or hold Your Data for any period of time after termination of this agreement.
11.4 We will treat Your Data as confidential. Subject to this agreement and our Privacy Policy, we will not disclose it to any other person except where necessary to provide the Services, where permitted by law, or where the data is or has become public.

12. Your Systems

12.1 You will permit us access to and use of your systems to the extent required for us to perform our obligations under this agreement. We must only access and use your systems as necessary to perform its obligations under this agreement and for no other purpose.
12.2 If we have access to your Systems under this agreement, we must take all reasonable measures in accordance with currently accepted commercial practice and applicable legislation to protect against a virus entering your Systems.

13. Privacy

13.1 We may collect Personal Information about you and your Users as a “Service User” for the purposes set out in our Privacy Policy. We will handle such Personal Information in accordance with this agreement and our Privacy Policy, which provides information on how we manage your Personal Information, including what Personal Information we collect and how and why we collect this information. By providing your Personal Information to us (including through your use of the Services), you consent to the collection, use, storage and disclosure of that information as described in our Privacy Policy and this agreement.
13.2 You must ensure that at all times you (or your Subscriber) hold all necessary authorisations and current consents from individuals to:

(a) upload their Personal Information to the Services; and
(b) for us to collect, access, use, store and disclose their Personal Information from the Services for the purposes described in this agreement, including our Privacy Policy.

14. Liability

14.1 The Services are provided “as-is.” To the extent permitted by law, we exclude any warranty about the Services not expressly stated in this agreement.
14.2 The Services include output-producing analysis such as dashboard displays of Your Data. We offer no warranty and disclaim all liability for interpreting or taking any steps in response to that output, as those are business decisions for you.
14.3 The Services are a business tool and not a clinical decision-making tool nor a substitute for appropriate professional consideration of clinical issues. You must not, and must ensure your personnel do not, use or rely on the Services for clinical decision-making.
14.4 Except as otherwise set out in this agreement, we do not warrant that the Services will be error-free or will operate without interruption or will perform in the manner intended by you or will meet your requirements.
14.5 We have no liability to you for any consequential loss, lost revenue or profits, lost or unauthorised access to data, lost access or productivity, interference with privacy, business interruption, or any special, indirect or incidental loss, related to the Services. These exclusions apply even if we knew or should have known that you might suffer loss.
14.6 In no circumstances will our liability to you exceed the Fees actually paid by you in the Subscription Term in which the liability first arises.
14.7 We are not liable for any delay or failure to provide the Services caused by circumstances outside our control, including failure of a third party to provide products or services to us.

15. Other terms

15.1 This agreement is the entire agreement between the parties concerning the Services. Any prior negotiations or documents are superseded by this agreement.
15.2 This agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
15.3 You may not assign or transfer this agreement or resell the Services. We can assign this agreement to an entity which acquires substantially all of our relevant business, or for the purpose of corporate reorganisation.
15.4 This agreement may be signed electronically by a method nominated by us. By using the nominated method, a party is taken to have consented to the use of that method and to have properly executed this agreement.
15.5 An individual signing on behalf of a company, partnership or other incorporated entity warrants that he or she has the authority of that entity to sign this agreement on its behalf.
15.6 You agree that we may identify you as a recipient of the Services and use your logo in sales presentations, marketing materials, press releases and other similar activities.
15.7 Queensland law governs this agreement and parties submit to the nonexclusive jurisdiction of the courts of Queensland.

How to contact us

We can be contacted by email at [email protected]

Cubiko

27 September 2019