1.1 Welcome and thank you for reading our Terms of Service (referred to as the Terms). These Terms set out the terms and conditions on which you agree to use the Services provided by A.C.N. 665 169 068 PTY LTD, (referred to as The Company, our, us or we). These Terms are a binding contract between the Account Owner (also referred to as you or your) and The Company.
1.2 Please note if you do not agree with the Terms, you may not use the Website or the Service.
1.3 These Terms may be modified by The Company effective immediately by posting updated Terms on the Website. By continuing to access or use the Service after the updated Terms are posted on the Website, you agree to be bound by the modified Terms of Service.
2.1 To use the Service, we require you to create an Account.
2.2 To create the Account, we will ask you to provide us with information as prompted on our Website (Registration Data).
2.3 You agree to provide accurate, current, and complete Registration Data and to keep your Registration Data accurate, current and complete.
2.4 Registration Data may include personal information such as your name, email address, child's name or name of the person the account is for, their age, and the program they are on. We will handle all personal information that we collect from you in accordance with our Privacy Policy.
2.5 The Company will designate you as the Account Owner and assign you an account ID (your Account ID). Your email address is your username and you must select a password.
2.6 You are responsible for keeping your password secure. You must not share entry identifications and authentication passwords and any sharing may result in a suspension or termination of access for the Account Owner, and/or an increase in charges, at The Company’s sole discretion.
3.1 You are responsible for all activities conducted through your Account.
3.2 You must comply with all relevant laws and The Company's Policies while using the Service.
3.3 You must immediately notify us of any unauthorised use of your Account of which you become aware.
3.4 Any violation by you of these Terms of Service or Policies may result in immediate suspension or termination of your Account without any refund or other compensation at The Company’s option.
4.1 The Company provides the Service for the fees and other charges for the Service you select, as set out on the Website (Subscription Fees).
4.2 You must pay The Company for any applicable Subscription Fees levied in relation to the use of the Service by you and your Users. You authorise The Company to recover all Subscription Fees due and payable by whatever payment method agreed with The Company from time to time.
4.3 All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies and similar governmental charges (Sales Taxes) imposed on the provision of the Service. You must pay the Sales Taxes to The Company in addition to the Subscription Fees charged in connection with the Service. Where applicable, you will be responsible for all Sales Taxes and The Company reserves the right to collect Sales Taxes retroactively.
4.4 We may, at any time, add new services for additional fees and charges, or prospectively modify fees and charges for existing services (including prospectively charging fees for the Service not previously charged for) without notice from time to time.
4.5 We may suspend or terminate your use and your Account, in the event that you fail to make payment.
5.1 You agree that
(a) The Company may conduct certain activities related to the Stripe Payment Processing Services such as communication of information about transactions and refunds, Stripe account balance adjustments, the handling of disputes (including chargebacks), as well as other features as described in the Stripe documentation.
(b) Certain use, recurring, or application fees may be charged to you for your use of the Stripe Payment Processing Services.
(c) You will comply with all terms and conditions of the Stripe Connected Account Agreement.
(d) Stripe may suspend or terminate the provision of Stripe Payment Processing Services in accordance with the terms of the Stripe Connected Account Agreement.
(e) The Company may use and may share with Stripe, and Stripe may use and share with The Company, all Transaction Data, data about your Account, your activity on their Stripe accounts, and transactions. In addition, you hereby grant permission to The Company to work with and interact with Stripe, in order to copy your Transaction Data, Payment Data, and User Data from your Account to the Service, for the benefit of facilitating or improving use or interoperability of the Stripe credit card processing services with the Service. As a condition of The Company enabling payment processing services through Stripe Payment Processing Services, you must provide The Company accurate and complete information about you and your practice and business.
(f) In the event that The Company, or Stripe (or other payment processor) is required under applicable law to obtain your consent in order to send you tax forms, tax notices or tax returns by e-mail or other electronic format, that you hereby provide your consent to The Company, or Stripe (or other payment processor), as applicable, to send you such notices, forms and returns by e-mail or other electronic format.
5.2 “Stripe” is a registered trademark of Stripe, Inc.
6.1 The Company reserves the right to add, modify, discontinue or eliminate aspects, features or functionality of the Service from time to time for any reason including without limitation for purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its sole discretion.
7.1 The Company may on occasion need to interrupt or suspend the Service, with or without prior notice, to protect the integrity or functionality of the Service or for maintenance purposes. You agree that The Company is not liable for any interruption or suspension of the Service (whether intentional or not), and you understand that neither you nor any other Users will be entitled to any refunds of fees or other compensation for interruption or suspension of service. Likewise, you agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.
8.1 The Service may contain links to, or otherwise allow connections to third-party websites, servers, and online services or environments that are not owned or controlled by The Company. You agree that The Company is not responsible or liable for the content, policies, or practices of any third-party websites, servers, or online services or environments. Please consult any applicable terms of use and privacy policies provided by the third party for such websites, servers, or online services or environments.
9.1 By using our Service, you authorise us to collect, retain and use personal information about you in accordance with our Privacy Policy.
9.2 You agree to provide us with any consents we require to enable us to access any third party data, services or platforms to the extent we require such access to enable the proper provision of our Service under these Terms.
9.3 We will make no use of User Data and (including PHI) that is not permitted by these Terms of Service, the BAA (as defined below, in relation to clinicians) or that is prohibited by applicable law.
9.4 For clinicians, it is your responsibility to comply with all applicable privacy and data protection laws and to ensure that you have provided all required notices and obtained all necessary consents (including with respect to third parties access) from your Users, patients and clients, and that the User (including without limitation your patients and your clients) has agreed to the collection of their User Data (including PHI) and the access of their User Data by you, by us, and, where applicable, other third parties.
9.5 In the event that we become required by law to disclose any User Data (including PHI) or any of your data or information, to the maximum extent permitted by law, we will notify you prior to disclosing that data unless ordered to not do so by a court of competent jurisdiction, requested not to do so by law enforcement, or unless our legal counsel advises us that prior notification is not required or in violation of applicable law.
10.1 In the event of termination of these Terms, whether by your cancellation of these Terms, your breach of, or as otherwise provided in these Terms of Service, there is an export feature in the Service which will enable you to retrieve your User Data contained within the Service prior to the account termination date. It is your sole responsibility to export from your Account a file or files containing the User Data contained within the Service before the account termination date and to ensure the secure preservation of User Data (including PHI) for your clients and patients pursuant to federal and state law. The Company will destroy the User Data for your Account as provided in clause 20 of these Terms of Service.
11.1 You warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorise The Company to use, retain, copy, and process the User Data in the Service and as contemplated by these Terms.
11.2 You are responsible for all information and User Data you input into the Service, including changes made to progress records, whether previously locked or unlocked.
11.3 For clinicians, you understand and agree that you are bound by various laws and regulations, including but not limited to HIPAA, which require that you preserve the availability, accuracy, integrity, and confidentiality of PHI and personal information.
11.4 All of your activity within the Service is automatically logged (including into audit logs), including the unlocking and changes to the records, entries, session notes, and any other data which can be altered. Such activity may be audited by administrators, regulators, or others.
12.1 You grant The Company (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display User Data and Transaction Data solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyse and use any of your User Data and Transaction Data as The Company may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this clause 11.1 is referred to as the User Data License.
12.2 You also acknowledge that the User Data License granted to The Company with respect to your content will survive the termination of your Account to permit The Company:
(a) to retain server copies of particular instances of your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and
(b) to enable the exercise of the licenses granted in this clause 10 for any other copies or instances of the same User Data that you have not specifically deleted from the Service.
12.3 Notwithstanding anything to the contrary in these Terms or in any payment processing agreement between you and the payment processor (including Stripe), you also hereby provide The Company an irrevocable perpetual royalty free, assignable license, authority, and permission to obtain, copy, and use, at The Company’s request, without notice to you, from payment processors, banks, card and ACH processors and gateway provider, which support the Service, all of Your Transaction Data and User Data for purposes of providing you the Service.
13.1 The Company may use and disclose any data on the Service, including your data and User Data, to assist it in improving the Service, for data analytics or sale to third parties provided that where that data contains personal information, such personal information will be fully anonymised and aggregated (so that it is no longer personal information) prior to such use or disclosure.
14.1 Requests for transfer of the Account Owner role, either by the Account Owner or by an individual legally designated to assume Ownership, must be initiated by you by providing The Company written notice, except in the case where you (a Client) has given a Clinician access to your account, wherein the conditions specified in 14.2 shall apply. You agree that User Data that is PHI may only be accessed by or transferred to an appropriate party, pursuant to HIPAA rules and other applicable laws and regulations.
14.2 Where you (a Client) have given a Clinician access to your account either by accepting a Clinician's invitation to The Company, inviting your Clinician to The Company, accepting a linking invitation from a Clinician, or sending a Clinician a linking invitation, you give that Clinician ownership of your data exclusively for the purposes of complying with rules and regulations around keeping client records. While your Clinician remains linked to your Client account, you give your Clinician the right to export your data and save it to a third party system of their choosing. At the time which your Clinician receives the download link for your data from The Company, they become responsible for your data and we relinquish all duties and responsibilities which we hold as a service provider, under these terms, the Privacy Policy, and the BAA agreed upon your Clinician for the data which they have exported from The Company. If you have any questions about this, please contact your Clinician.
15.1 The Company owns Intellectual Property Rights in and to the Service, except User Data, including the The Company Software, the Websites, and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the The Company Marks). Such Intellectual Property Rights are separate from any rights you may have in User Data you upload or submit to the Service.
15.2 Subject to the terms of these Terms, The Company grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use the Service. You agree that you will not:
(a) allow any person or entity not authorised by The Company to use or access the Software;
(b) attempt to copy any ideas, features, functions or graphics contained in the Service;
(c) use the The Company Software for any other purpose intended to benefit a party other than you;
(d) alter or modify the The Company Software;
(e) sell, assign, sublicense, rent, lease or otherwise transfer the The Company Software or any rights in connection therewith;
(f) or attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Software.
15.3 You may provide suggestions, ideas and/or feedback (collectively referred to as Feedback) to The Company or in the use of the Service or Website regarding The Company Website, products or Service. You agree that The Company will be free to use, irrevocably, in perpetuity and for any purpose, all Feedback provided to it by you or your Team Members and that all right title and interest in Feedback is assigned to The Company. The foregoing grant of rights is made without any duty to account to you or to any of the foregoing persons or entities for the use of such Feedback.
16.1 The Company provides the Service strictly on an “as is” basis, and, to the maximum extent permitted by law, hereby expressly disclaims all warranties or conditions of any kind, written or oral, express, implied or statutory, including without limitation any implied warranty of title, noninfringement, merchantability or fitness for a particular purpose.
16.2 The Company does not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, the Websites, the Servers, or your Account, and you understand that you will not be entitled to refunds or other compensation based on The Company’s failure to provide any of the foregoing other than as explicitly provided in these Terms.
16.3 The Company does not guarantee that by mere use of the Software you will be in compliance with HIPAA or other applicable law, and you understand and agree that you are responsible for maintaining administrative, technical and physical safeguards necessary to ensure the confidentiality, availability, and integrity with respect to your PHI and to otherwise comply with HIPAA and other applicable law.
17.1 Notwithstanding any other provision of these Terms and to the maximum extent permitted by law, The Company is not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise:
(a) For any loss out of or in connection with the Service;
(b) for any Consequential Loss;
(c) for any unauthorised use of your Account.
17.2 Notwithstanding any other provision of these Terms and to the maximum extent permitted by law The Company’s aggregate liability in connection with these whether in contract, tort (including negligence), statute or otherwise will not exceed US$150.
18.1 You indemnify The Company against:
(a) any breach or alleged breach by you, including without limitation your representations and warranties relating to your data and User Data;
(b) claims, losses and causes of action asserted by any Users (including without limitation your clients or patients, if you are a clinician); or
(c) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct.
18.2 In any matter in which you have agreed to indemnify The Company, without the express written consent of The Company, you may not settle any matter or admit liability if, upon doing so, you are admitting liability or fault on the part of The Company. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defence of such claim.
19.1 You may terminate these Terms by closing your Account at any time for any reason. Subject to The Company’s obligations pursuant to clause 19, The Company will have no further obligation or liability to you under these Terms or otherwise.
19.2 You may not suspend your own Account. If you suspend your Account, then the Account will be deemed terminated.
19.3 The Company may suspend or terminate these Terms and your Account, without notice, if:
(a) you breach these Terms and that breach is not capable of remedy;
(b) you fail to remedy a breach within 10 days’ notice from The Company requesting the breach be remedied, noting that The Company may suspend your Account during that 10 day period at its sole discretion;
(c) you become insolvent, bankrupt or enter liquidation.
19.4 We may also suspend or terminate your Account if we determine in our sole discretion that such action is desirable for any reason, or advisable to comply with applicable legal requirements, or to protect the rights or interests of The Company or any third party.
19.5 Under no circumstances, will you be entitled to compensation or a refund for any interruption, suspension or termination of the Service and these Terms.
20.1 Upon termination of your Account:
(a) all licenses granted by The Company to use the Website, Software, and the Service will automatically terminate; and
(b) all User Data in your Account will be retained no more than ninety (90) days after termination or expiration of your Account or these Terms, and deleted on expiration of such ninety (90) day time frame.
21.1 Upon termination by you or by The Company of your Account, you will not receive any refund of any amounts previously paid and you will remain liable for any charges incurred or unpaid amounts owed by you to The Company.
22.1 The following terms will survive any termination of these Terms: Clauses 3, 4, 8, 13, 14, 15, 16, 17, 18 and 19. You will not be entitled to any refund on termination or expiration of these Terms.
23.1 If you have a Dispute with The Company please get in touch and we’ll try to resolve it informally.
23.2 If the Dispute cannot be resolved informally within 30 days of such Dispute being notified to The Company, it must be submitted to arbitration in accordance with the Commercial Arbitration Act 2017. The decision of the arbitrator shall be final and binding on both parties.
23.3 Despite the existence of a Dispute, each party must continue to perform its obligations under these Terms unless those obligations are the subject of the Dispute or The Company has a right to suspend the Services or these Terms as set out in these Terms.
24.1 You may not assign the benefits or obligations on you under these Terms or your Account without The Company’s prior written consent.
24.2 You may not transfer or sublicense any licenses granted by The Company under these Terms without our prior written consent.
24.3 The Company may assign these Terms, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under these Terms without your consent.
24.4 These Terms constitute the entire agreement between the parties and no earlier representation, warranty or agreement in relation to any matter dealt with in these Terms has any force or effect from the date of the Account Owners acceptance of these Terms.
24.5 Any illegality, unenforceability or invalidity of any provision or portion of these Terms will not affect the rest of these Terms which will remain in full force and effect unless the commercial interests of either party are materially and adversely affected.
24.6 The Company may provide notice to you and obtain consent from you:
(a) through the Website;
(b) by electronic mail at the electronic mail address associated with your Account; and/or
(c) by written mail communication to you at the address associated with your Account.
24.7 You must submit all notices required or permitted under these Terms to The Company in any of the following ways:
A notice by email is deemed to have been received the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).
24.9 Nothing in these Terms will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in these Terms, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
24.10 If any term or provision of these Terms is held by a court to be void, illegal or unenforceable under the applicable law that term or provision will be severed from these Terms and the remaining terms and conditions will be unaffected.
24.11 These Terms does not modify, restrict or exclude any additional rights you may have under additional laws that cannot be so modified, excluded or restricted.
24.12 The failure of either party to enforce any provisions under these will not waive the right of such party thereafter to enforce any such provisions.
24.13 These Terms are to be governed by and construed in accordance with the laws of Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Australia.
24.14 Any warranty, indemnity, or obligation of confidentiality in these Terms will survive termination. Any other term which by its nature is intended to survive termination of these terms survives termination of these Terms.
24.15 The Company may refer names of certain third party service providers (Service Providers) to you upon your request or in connection with the Service. Any Service Providers referred to you by The Company are not owned or controlled by The Company. The Company is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful or illegal conduct. You must conduct your own investigation and due diligence regarding any Service Providers referred to you by The Company and agree to defend (at The Company’s option), indemnify and hold harmless The Company from all damages, liabilities, claims, expenses and losses relating to the referral of Service Providers to You.
24.16 For purposes of complying with the requirements of HIPAA to the extent applicable, you and The Company agree to be bound by each of the terms and provisions of the The Company Business Associate Agreement, which can be found here (the BAA) and which is incorporated in full by this reference.
24.17 If any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
25.1 In these Terms, unless the context requires otherwise:
(a) headings are for convenience only and do not affect the interpretation of these terms;
(b) a reference to the singular includes the plural vice versa;
(c) $ means the lawful currency of the United States of America;
(d) “includes” is not a word of limitation;
(e) where a word or expression is defined its other grammatical forms have a corresponding meaning;
(f) no rule of construction applied to the disadvantage of a party because these terms are prepared by (or on behalf of) that party;
(g) a reference to a party includes the party’s executors, administrators, successors and permitted assigns;
(h) if a party consists of more than 1 person, then the agreement binds each of them separately and any 2 or more of them jointly; anda reference to a statute, regulations, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and
(i) a reference to a statute includes all regulations, proclamations, ordinances and by-laws under that statue.
25.2 In these Terms, unless the context requires otherwise:
Account means an account through which you will access the Service.
Account Owner means entity and/or person in whose name the Account is established.
Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
Content means template and template libraries provided through the Service.
Dispute will have the broadest meaning possible and means any dispute, action, or other controversy between you and The Company relating to the Service, any transaction or relationship between you and The Company resulting from your use of the Service, communications between you and The Company, or these Terms – whether in contract, warranty, tort, laws, or regulations.
HIPAA means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time.
Intellectual Property Rights means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law.
Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
Payment Data means any personal or financial information collected from a credit card, debit card or other payment method, including but not limited to a cardholder’s account number, card expiration date, and CVV2.
Policies means the policies and service guidelines accessible on the Website from time to time.
Protected Health Information orPHI means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. 160.103.
Servers are computers or devices that host the Service.
Service means The Company’s technology and software platforms available on the Websites and any affiliated sub-domains and mobile applications and sites, Software, and Servers.
The Company Software or Software is the software provided to you by The Company and/or its suppliers under license or with respect to which you have access, in connection with the Service.
Transaction Data means customer information, User Data, Payment Data, transaction information, bank information and credit card information including without limitation tokenized account information, tokens and token access codes, account information or other data or information of any kind that is provided by or generated or collected on your behalf, or your Users by the Service.
User Data means any data or images that you (or your clients or patients, if you are a clinician) upload, stream or submit to the Servers, Website, or other areas of the Service, or generated or collected on your behalf from the Servers, Website, the Service or third parties, including but not limited to Protected Health Information as that term is defined below, video, image and sound data.
User means any person who uses or access the service.
Website means the website and services available from the domain of https://speechpathology.co and any related or successor domains and mobile applications and sites from which The Company may offer the Service.
© 2023-2024 Speech Pathology Company Pty Ltd
