2.1 For the duration of the Subscription Term and provided the Fees have been paid as per this agreement, the buyer and the clinic have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services, subject to the terms of this agreement. 

2.2 The clinic agrees that the buyer and its Users may access the Clinic Data via the Services .

2.3 We: 

(a) do not guarantee the uptime of the Services; 

(b) rely on the quality of Clinic 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 Clinic 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. 

2.4 You may only use the Services for internal business analysis as a part of your due diligence investigations in respect of the clinic location set out in the ordering form.  You must not use the Services for any other purpose, or on-provide or re-sell any of them.  You and the clinic must not attempt to circumvent any security mechanism or control present in the Services.

2.5 You must use the Services lawfully.  The clinic 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.

3. Maintenance

3.1 We may perform scheduled maintenance on the Services from time to time. 

3.2 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. 

3.3 We will use reasonable efforts to inform you and the clinic in advance of any such Service.

4. Subscription Term

4.1 This Agreement shall commence on the date set out in the Ordering Form.

4.2 Upon the expiry of the Subscription Term access to the Services will end.

4.3 For clarity, you will not be provided with access to the Services until all Fees for the Subscription Term have been paid in full. Further, the buyer’s access to the Services also requires the clinic to provide the buyer with the necessary permissions which are controlled from within the Services.

5. Fees

5.1 The buyer will pay all Fees specified in the Ordering Form. 

5.2 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. 

5.3 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.

5.4 The supplier of all taxable supplies must provide the recipient with a valid tax invoice before payment.

6. Invoicing and Payment

6.1 All Fees shall be paid in advance. 

6.2 We will invoice you in advance and otherwise in accordance with the Ordering Form. 

6.3 Unless otherwise stated in the Ordering Form, invoiced charges are due 30 days from the invoice date.

7. Responsibility for Users

7.1 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; and

(d)granting to your Users permissions to access various functionality of the Services .

7.2 granting to your Users permissions to access various functionality of the Services .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.

8. Termination

8.1 Subject to any minimum term, the buyer may terminate this agreement at any time without cause and without liability by giving days written notice to us.  

8.2 If you terminate this agreement under clause 7.3, you acknowledge that you will not be entitled to any refund of Fees paid in advance. 

8.3 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, 

(d) then any of the other parties may terminate this agreement by written notice to that party, in which case this agreement will terminate immediately.

9. IP Rights, privacy and confidentiality

9.1 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.

9.2 Except as expressly set out in this clause 9, the parties agree that nothing in this agreement transfers ownership in any IP Rights of a party. For clarity, as between the parties:

(a) the clinic will own all IP Rights in and to any materials provided by the clinic to us in connection with this agreement, including Clinic 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.

9.3 During the Subscription Term, the clinic grants to us a licence to access, transfer, store, reproduce, analyse and communicate Clinic Data, but only for the purpose of providing the Services to the buyer and the clinic.

9.4 We may create anonymised statistical data from Clinic 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 Clinic Data is anonymised and aggregated before we analyse it for benchmarking and statistical purposes.  The clinic may opt out of this  by giving written notice to us. 

9.5 If our use of IP Rights received from the clinic or in respect of Clinic 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, the clinic 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.

9.6 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.

9.7 Each party’s liability to indemnify the other party under clause 9.5 and 9.6 will be reduced proportionally to the extent that any negligent act or omission of the indemnified party contributed to the loss.

10. Security of Clinic Data 

10.1 We must use reasonable security measures to protect Clinic Data against unauthorised access, use or disclosure whilst within the Services.   

10.2 We must:

(a) establish and maintain safeguards against the destruction, loss, alteration or misuse of Clinic 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 Clinic Data. 

10.3 Unless otherwise agreed between the parties, we are under no obligation to retain or hold Clinic Data for any period of time after termination of this agreement. 

10.4 We will treat Clinic 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 to the buyer, where permitted by law, or where the data is or has become public.

10.5 We take no responsibility for and shall have no liability in respect of the buyer or any User’s failure to keep Clinic Data confidential.  We strongly recommend that the buyer and clinic enter into separate arrangements with respect of confidentiality of Clinic Data provided to the buyer and its Users.

11. Your Systems

11.1 The clinic will permit us access to and use of the clinic’s systems to the extent required for us to perform our obligations under this agreement.  We must only access and use the clinic’s systems as necessary to perform its obligations under this agreement and for no other purpose.  

11.2 If we have access to the clinic’s 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 the clinic’s systems.

12. Privacy

12.1 We may collect Personal Information about the buyer its Users and the clinic 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 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), the buyer and clinic each consent to the collection, use, storage and disclosure of that information as described in our Privacy Policy and this agreement. 

12.2 The clinic must ensure that at all times it  holds 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.

13. Liability

13.1 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.

13.2 The Services include output-producing analysis such as dashboard displays of Clinic 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.

13.3 The Services are a business tool and not a clinical decision-making tool nor a substitute for appropriate professional consideration of clinical issues.  Do not, use or rely on the Services for clinical decision-making.

13.4 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.

13.5 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.

13.6 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.

13.7 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.

14. Other terms

14.1 This agreement is the entire agreement between the parties concerning the Services.  Any prior negotiations or documents are superseded by this agreement.

14.2 If the clinic has a separate subscription for Cubiko services that agreement will continue to apply and is not affected by this agreement.

14.3 This agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

14.4 The buyer and clinic 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.

14.5 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.

14.6 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.

14.7 You agree that we may identify the buyer and the clinic as a recipient of the Services and use each of your respective logos in sales presentations, marketing materials, press releases and other similar activities. 

14.8 Queensland law governs this agreement and parties submit to the nonexclusive jurisdiction of the courts of Queensland.