These Mindfit and OkToTalk Practice Customer Terms of Service ("T&Cs") apply to the supply of any and all Services by Mindfit Pty Ltd, ABN 19138767021 ("Mindfit") whether those Services are provided through mindfit.org.au ("Website") or otherwise.
Anyone submitting a Form and/or otherwise utilising or accessing the Services is deemed to agree to these T&Cs and the other terms of the Agreement. A "Practice Customer" includes a person or organisation named as a "Practice" and/or a named as a "Practitioner" and/or otherwise identified as a practitioner user of the Services in a Form. A Form in combination with these T&Cs constitutes the "Practice Customer Agreement" (or the"Agreement") between Mindfit and each applicable Practice Customer. This Agreement binds each Practice Customer referred to in a Form jointly and severally and each reference to a Practice Customer is a reference to each of the Practices referred to in a Form and each Practitioner named as a user of the Services in that Form.
If you are utilising or accessing the Services on behalf of your employer or another entity, you confirm you have full legal authority to bind your employer or applicable entity to these T&Cs and the Agreement.
means an online account made available to a Practice Customer by Mindfit to enable the Practice Customer to manage among other things its profile and Appointment Booking Widget and access other digital services provided by Mindfit.
means anything published by a Practice Customer directly or indirectly via the Website (including material provided by a Practice Customer to Mindfit for publishing on the Website).
means the amounts invoiced to a Practice Customer by Mindfit or otherwise payable by a Practice Customer to Mindfit for the Services.
means the online registration pages or other Mindfit registration forms or agreement a Practice Customer completes in signing up for the Services, together with the information provided in them, and also includes any Mindfit form submitted by a Practice Customer requesting services from Mindfit.
means a healthcare practice, centre, clinic or office within which one or more Practitioners provide healthcare services (which could be a sole practitioner or an entity or other association).
means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a practice).
means any details, content, images, data or information submitted by a Practice Customer to Mindfit, including the Practice Customer's name, business name, service details, logo and trade marks.
means the members of the public who use the Website and includes those members of the public who book appointments with a Practice Customer.
means the online appointment publishing, management and matching with Consumer searches and related services provided by Mindfit for use by the Practice Customer.
has the meaning given to that term in Clause 9(a).
2. Practice Customer key obligations:
The Practice Customer appoints Mindfit to provide the Services in accordance with this Agreement for the Term and agrees:
(a) to pay the Fees in return for the Services.
(b) that it is licensed with all relevant regulatory boards and/or other bodies, councils or authorities to enable the Practice Customer to legally practice and deliver the relevant healthcare services in the jurisdiction in which the Practice Customer is offering such healthcare services.
(c) to maintain throughout the Term any and all qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to members of the public.
(d) to ensure that all Content including details about the Practice Customer and any other information it provides to Mindfit or uploads to the Website is accurate and up to date and remains accurate and up to date and that it will indemnify Mindfit for any liability or expense resulting from outdated or inaccurate Content. The Practice Customer grants Mindfit a licence to use the Content for the purposes of providing the Services.
(e) to notify Mindfit of any change to any qualifications, certifications, licences and permits necessary for it to provide the relevant healthcare services to the Consumers or of any breaches of any laws, rules, regulations, industry codes or serious claims for misconduct or professional negligence which may impact the Practice Customer's ability to provide healthcare services to the Consumers.
(f) left blank
(g) that it will:
(i) actively work with Mindfit to promote to existing patients and clients of the Practice Customer the existence of Mindfit and the Practice Customer participation with the Service so that those patients and clients may become Consumers; and
(ii) encourage patient and client use and referral of the Service by use of in-practice materials including but not limited to brochures, flyers, decals and posters and by way of co-branding and marketing to those patients and clients and where and when relevant the use of direct links from the practice website, if there is one, to the Mindfit site for that Practice Customer's clients enrolment and use.
(h) that only a Practitioner named as a user of the Services in a Form is permitted to access the Services and this Practice Customer Agreement is deemed to be entered into, on a joint and several basis, by each of the Practice referred to in a Form and each Practitioner named as a user of the Services in that Form. Other Practitioners, even if they work in the same Practice as a Practice Customer, are not entitled to access the Services until they are named as a user in a Form.
(i) that only a Practitioner/Practice named as a user of the Services in a Form will be available to receive Consumer details;
(j) to promptly contact directly the Consumer upon receiving a booking or query from such Consumer, and also where the Practice Customer wishes to change or cancel such a booking made by a Consumer.
(k) to notify Mindfit of any complaints received by the Practice Customer from any person relating to the Services.
(l) that Mindfit is not a party to any dealings, arrangements, agreements or similar between the Practice Customer and the Consumer and the Practice Customer is solely responsible for all care provided to a Consumer and for collection of any fees for healthcare services provided to a Consumer unless agreed by Mindfit and the Practice Customer.
(m) to maintain all insurance policies, including but not limited to "Professional Indemnity" (including medical negligence if required) and "Public Liability" insurance in relation to the services offered by the Practice Customer.
(n) to ensure that the Content does not infringe the copyright or other rights of any other person and, if any third party makes a claim arising from the Content, the Practice Customer agrees to indemnify Mindfit against any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable legal expenses, arising from or related to that claim, and (at Mindfit's option) to promptly modify the Content so that it ceases to infringe any third party rights, or procure for Mindfit the right to use the Content free of any third party claim, or allow Mindfit to defend any claims against it resulting from the relevant Content (and Practice Customer shall provide all necessary support if it does so).
(o) to obtain any necessary support required to integrate the Website and the Practice Customer's PMS directly from the relevant PMS provider rather than from Mindfit, and the Practice Customer agrees that Mindfit is not responsible for providing integration support. The Practice Customer indemnifies Mindfit against any damages or loss that may result from the implementation of a Mindfit integration with the Practice Customer's PMS and any associated access to the Practice Customer's systems or maintenance of or changes to that PMS integration by Mindfit.
(p) to indemnify Mindfit against any fines, damages or loss that result from the Practice Customer's use of the Services.
(q) to maintain as confidential and to keep secure all information regarding a Consumer and any other data received from Mindfit, and not disclose or use any information regarding a Consumer or any other data received from Mindfit other than for the purposes of this Agreement or the provision of the relevant healthcare services (except, in the case of information regarding a Consumer, with the consent of that Consumer).
(r) to comply with all applicable privacy and information laws and regulations so far as they relate to the Practice Customer's collection of Consumers' personal and health information and will indemnify Mindfit against fines or damages that result from the Practice Customer's non-compliance with this provision.
(s) to notify Mindfit immediately in the event of a data breach concerning a Consumer's personal information.
(t) that access to and use of the Services is solely at the risk of the Practice Customer.
3. Mindfit key obligation
(a) to provide the Services in accordance with the Practice Customer Agreement.
(b) to use reasonable endeavours, competence, diligence and skill to maintain the operation and provision of the Services as specified.
4. The Services and Intellectual Property
(a) The Practice Customer agrees that Mindfit is entitled to make such changes to the Services, the Website, its internal processes and the interface of the Services with the Practice Customer from time to time as Mindfit considers appropriate in its sole discretion.
(b) The Practice Customer acknowledges and agrees that Mindfit may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services.
(c) The Practice Customer acknowledges and agrees that Mindfit is not liable for any delay in delivering Consumer details to the Practice Customer or delays in processing or delivering files containing such details.
(d) The Practice Customer acknowledges and agrees:
(i) that all intellectual property rights in the Services, and all Mindfit know how, software, materials and methodologies utilised in providing or incorporated into the Services or the Website, (collectively the "IPR") remain vested in Mindfit, and the Practice Customer has no rights in relation to that IPR;
(ii) not to copy, alter, modify or reproduce any such IPR or any part of it; and
(iii) that the Services and the IPR are made available on an "as is" basis for use by the Practice Customer in accordance with this Agreement and must not be distributed to or shared with any third party or used for any other purpose.
(e) The Practice Customer must not use any Mindfit logo or trade mark (other than as specifically authorised under this Agreement and in materials specifically approved by Mindfit) without the prior written consent of Mindfit.
5. Practice Customer's use of the Services
(a) The Practice Customer agrees to keep confidential and secure any passwords or other security credentials supplied by Mindfit.
(b) The Practice Customer agrees to notify Mindfit immediately of any unauthorised access to the Practice Customer's Account.
(c) The Practice Customer agrees that its use of the Services including access to the Website, its Account and Appointment Booking Widget will be for lawful purposes only and further agrees that it will not use the Services to:
(i) post or transmit any material on the Website which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful, or racially or ethnically or otherwise objectionable;
(ii) encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
(iii) harm children in any way;
(iv) impersonate a person or entity or falsely state their affiliation with a person or entity;
(v) upload, post, transmit or otherwise make available any content that infringes the rights of another party including but not limited to trademark, copyright and other intellectual property rights; or
(vi) transmit or otherwise make available any material that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(d) The Practice Customer agrees that it will not use the Website to advertise or perform any commercial or other form of solicitation that is not authorised by Mindfit and/or the Practice Customer Agreement.
6. Billing and other Financial Provisions
(a) The Fees payable for the Services are set out and agreed in the Form (or are as agreed separately in writing with Mindfit). A separate Fee is payable for each Practitioner named as a user of the Services in the applicable Form, with effect from activation of that Practice Customer's service.
(b) Unless otherwise agreed in writing with Mindfit, all Fees are payable monthly in advance during the Term.
(c) If a trial period applies, the payment and related terms applicable to any trial period will be as specified in the Form or otherwise as agreed in writing with Mindfit.
(d) The Practice Customer must pay all Fees required to be paid under the Agreement in accordance with the requirements, and on or before the due date, specified in the Form or as otherwise agreed in writing with Mindfit.
(e) Unless otherwise agreed in writing with Mindfit, Fees must be paid online by credit card or, if the Practice Customer has provided the required direct debit authority signed by the Practice Customer, by direct debit. Please contact Mindfit is you wish to arrange payment by direct debit.
(f) If requested by Mindfit, the Practice Customer must provide valid credit card details to Mindfit for payment of any Fees. Subject to any other payment arrangements expressly agreed in writing with Mindfit, the Practice Customer authorises card with any Fees when due and payable.
(g) Subject to prior agreement in writing with Mindfit, Mindfit may invoice the Practice Customer the Fees specified in the Form and, if so, each such invoice is payable immediately upon receipt (or in accordance with such other payment terms as agreed in writing with Mindfit). In no circumstances shall the Practice Customer make any deduction or withhold payment for any reason whatsoever.
(h) If any payment is not made by the due date Mindfit may:
(i) Suspend or cancel the Account; and/or
(ii) Suspend or cancel the service; and/or
(iii) Suspend or cancel the Practice Customers' access to the Services; and/or
(iv) Cancel any discount, special pricing, promotional offers, priority ranking or similar benefits offered to the Practice Customer by Mindfit.
(i) All Fees stated are exclusive of GST and other applicable taxes, which must be paid by the Practice Customer.
(j) Certain optional Services such as SMS notification and client monitoring services may require the Practice Customer to pay additional fees and/or purchase SMS credits in advance. The terms of any such additional services, and the payments for them, will be provided in the Form or agreed separately in writing with Mindfit.
(k) Where Fees are payable to Mindfit on a per-appointment basis, and the Services are suspended or cancelled, Mindfit may charge an early termination fee for each client that a Practice Customer has had appointments with via the service. The fee is calculated as the average Fees in respect of the client, multiplied by the difference between the expected and actual number of sessions attended by the client. The expected number of sessions attended is 10. Where a client has attended 10 or more sessions at termination, no early termination fee is payable in respect of that client.
7. Publicity and Third Party Use and Disclosure
Practice Customers agree that Mindfit may use any Practitioner Content, for Mindfit's promotion and marketing purposes and grants Mindfit an irrevocable licence to use such content in this way, providing that Mindfit does not use any Practitioner Content for promotion or marketing purposes in a way which would clearly detract from the good name and reputation of the Practice Customer. Such licence shall continue despite any termination of this Agreement.
Practice Customers agree that Mindfit may place any Practitioner Content on any third party websites or infrastructure or supply to third parties any Practitioner Content in order to offer the Services through a different website or through a partner organisation.
8. Third Party Websites and Advertising
The Website may contain information and advertising from third parties and links to third party websites ("3rd Party Content"). Mindfit is not responsible for 3rd Party Content, including its accuracy, nor for any reliance the Practice Customer places on 3rd Party Content. Mindfit may engage third parties to provide 3rd Party Content at its sole discretion.
9. Term, Renewal & Termination
(a) Unless agreed otherwise in writing with Mindfit (including in the Form) or this Agreement is otherwise terminated in accordance with its terms:
(i) subject to Clause 9(b), the initial term of the Practice Customer Agreement will commence on the date a Practice Customer submits a valid and complete Form requesting registration with Mindfit and will continue until:
a. if a trial period applied to the Services, and the Practice Customer has terminated the Agreement in accordance with the terms of the trial period, the end of the trial period;
b. if a trial period applied to the Services, and the Practice Customer has not terminated the Agreement in accordance with the terms of the trial period, the date 12 months after the end of the trial period; or
c. if no trial period applied to the Services, the date 12 months after the date of activation of the Appointment Booking Widget activated under the Agreement.
(ii) at the end of that initial term (provided that the initial term did not end at the end of the trial period), and at the end of each subsequent term of 12 months which arose by prior application of this Clause 9(a)(ii), the term will be automatically renewed for a subsequent 12 month period if the Practice Customer does not notify Mindfit in writing at least 30 days prior to the end of the previous term, of their wish to terminate the Practice Customer Agreement. For the avoidance of doubt this Clause 9(a)(ii) may continue to apply multiple times under this Agreement until the Practice Customer notifies Mindfit in writing at least 30 days prior to the end of the previous term, of their wish to terminate the Practice Customer Agreement.
"Term" means that period from commencement of the initial term of the Practice Customer Agreement until termination or expiry of the Practice Customer Agreement in accordance with this clause and includes any renewal period. For the avoidance of doubt, upon automatic renewal the Practice Customer is obliged to pay the required Fees for the renewal term as outlined in Clause 6 above.
(b) The provision of Services and the obligation to pay Fees will not commence until the date a Practice Customer initiates activation of a Practice Profile which ever is the sooner.
(c) Notices of request or instruction for termination, referred to in Clause 9(a) above, can only be accepted in writing from the practice owner or person whose credit card and authority was used to authorise payment.
(d) Mindfit may terminate the Practice Customer Agreement by notice in writing at any time in its absolute discretion and (in the event of termination pursuant to this clause (d) only) will provide a refund of any pre-paid Fees for which Services will not be provided by Mindfit.
(e) In addition, Mindfit may immediately upon notice in writing to a Practice Customer terminate this Agreement and/or suspend the Services provided under it in the event that a Practice Customer:
(i) breaches this Agreement; or
(ii) ceases to be able to pay its debts as they become due, or becomes or is in jeopardy of becoming subject to any form of insolvency or bankruptcy administration; or
(iii) loses its relevant regulatory or other licence or authority to deliver the relevant healthcare services,
(iv) behaves in a way which would clearly detract from the good name and reputation of Mindfit
and Mindfit will not be obliged to provide the Practice Customer with any refund or credit of or in relation to Fees paid.
10. Warranties, Liability & Indemnities
(a) The Practice Customer acknowledges and agrees that Mindfit is not a healthcare provider and cannot be held liable for the care of a Consumer which will at all times, as between the Practice Customer and Mindfit, remain the sole responsibility of the Practice Customer.
(b) The Practice Customer will indemnify Mindfit against any and all claims, actions,proceedings, losses, damages, liabilities and expenses, including reasonable legal expenses, arising from or related to any treatment provided by the Practice Customer to a Consumer or arising from or related to the Practice Customer's use of the Services.
(c) Mindfit acknowledges that certain laws imply terms, conditions or warranties into contracts for the supply of goods or services that cannot be excluded. Nothing in this Agreement is intended to exclude or restrict the application of such laws.
(d) Subject to Clause 10(c), Mindfit excludes to the fullest extent permitted by law all implied rights, remedies, guarantees, conditions and warranties of or in favour of any Practice Customer or third party in respect of goods and services related to the Practice Customer's use of the Services and in particular:
(i) Mindfit does not warrant that provision of the Services will be free of delays, uninterrupted, error free or free of viruses or bugs;
(ii) Mindfit will have no responsibility or liability for any loss or damage that a Practice Customer incurs including damage to a Practice Customer's software or hardware and/or loss of data arising from a Practice Customer's use of or access to the Services; and
(iii) Mindfit will have no responsibility for any loss caused by the Practice Customer's negligence; the Practice Customer's breach of the Agreement; or their failure to follow reasonable instructions.
(e) If any term, condition or warranty is implied into this Agreement and cannot be excluded, then to the extent permitted by law the liability of Mindfit for a breach of the implied term, condition or warranty will be limited as determined by Mindfit in its sole discretion to:
(i) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
(f) To the fullest extent permitted by law, Mindfit:
(i) excludes any and all liability for any loss of profits, loss of revenue, loss of opportunity, loss of data or consequential or indirect loss; and
(ii) limits its aggregate liability under or in connection with the Agreement and the Services to the Fees paid under this Agreement during the most recent 3 consecutive calendar months prior to the relevant claim being made.
(b) The Practice Customer agrees that Mindfit has provided the Practice Customer with the Terms of Service that apply to the use of and access to the Website, and the Practice Customer agrees to comply with and be bound by those Terms of Service.
12. Force Majeure
(a) A party to this Agreement is not liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure. In this Agreement, "Force Majeure" means a circumstance beyond the reasonable control of the non-performing party.
(b) If any delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party's obligations will be suspended for the period of the delay.
(c) If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, any party may immediately terminate the Agreement upon notice in writing to the other parties.
(d) Nothing in this Clause 12 applies to an obligation to pay money.
(a) If there is any inconsistency between any of the documents that comprise this Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Form prevail over the other documents to the extent of the inconsistency, and so on):
(i) the Form;
(ii) these Terms of Service;
(iii) any other document referenced or comprised in the Agreement.
(b) The Practice Customer warrants and represents that it has not relied on any term, undertaking, inducement or representation made by, or on behalf of, Mindfit which has not been expressly stated in this Agreement.
(c) The parties agree that the Terms of Service of this Practice Customer Agreement and matters relating to its performance are confidential and shall not be disclosed to third parties unless the parties to this Practice Customer Agreement agree, except where such disclosure is required by law or is to the respective parties' advisors, who shall in turn be required to keep the disclosed information confidential.
(d) Notice may be given by email. The Practice Customer agrees that Mindfit may give notice by sending an email to the address provided by the Practice Customer as part of the sign-up or account set-up process, or as later notified by the Practice Customer. The Practice Customer may send notices to Mindfit at support@Mindfit.org.au.
(e) Except as otherwise agreed in writing the Practice Customer Agreement forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
(f) The Practice Customer Agreement will be governed by and construed in accordance with the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
(g) Mindfit has the right, at any time, to change, modify or vary the Practice Customer Agreement or these terms and conditions or any part thereof or impose new Terms of Service, including, but not limited to, adding fees and charges for the Services. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means including, but not limited to, posting on the Website or by electronic or conventional mail or by any other means which Mindfit considers reasonable. Use of the Services or the Website by a Practice Customer after such notice shall be deemed to constitute acceptance by the member of such changes, modifications, additions or deletions.