MedPass Australia Terms of Use

INTRODUCTION


This website (referred to as the "Website") is owned and operated by The MedPass Group Pty Ltd trading as MedPass Australia (ABN 53 164 389 520) referred to as "we", "us", "our" in these Terms of Use.

The material on the Website is copyright © 2022 MedPass Australia.

MedPass Australia has developed a cloud-based platform for collecting, securely storing, and uploading information to the MedPass Australia Database for addressing various needs, including the following:

  • Reducing unnecessary time and costs from repeat pre-employment medical assessments for individuals who change sites/projects and/or employers.
  • Speeding up the recruitment process by reducing delays from the pre-employment medical process.

(Services)

Authorised Companies and Individual Users may access the Database via this Website in accordance with these Terms of Use.

For the purposes of these Terms of Use, the following meanings apply:

‘Authorised Company’ means any company (including workers of the Authorised Company, whom the Authorised Company has expressly authorised as authorised users to access and utilise the Database on its behalf in accordance with these Terms of Use) who engages us to provide it with Services, as set out in a relevant Purchase Order

‘GST’ has the same meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

‘Individual Users’ means any worker (or prospective worker) of an Authorised Company whose pre-employment medical assessments may be stored or accessed on MedPass Australia’s servers.

‘Purchase Order’ means the document setting out our engagement by an Authorised Company to provide it with the Services.

‘Services’ has the meaning set out above.


The Website and the Database are available for Authorised Companies and Individual Users to:

  1. Access and use, conditional on your acceptance without alteration of the terms and conditions set out below. By continuing to access and/or use the Website you are agreeing to these Terms of Use; and

  2. Upload material or information conditional on your acceptance without alteration of the terms and conditions set out below. By continuing to provide upload material or information to the Website you are agreeing to these Terms of Use.

In accordance with any relevant Purchase Order, Authorised Companies may access and utilise the Database for the purposes of the Authorised Companies undertaking pre-employment and pre-engagement medical checks of job workers

Individual Users may access and utilise the Database for the purposes of accessing their own uploaded pre-employment medical assessments or notifying Authorised Companies in relation to the existence of those assessments.

When you accept the Terms of Use on behalf of an employer, end user, or institution, you represent and warrant that you are expressly authorised to do so by such entity by which you are employed or retained and for whose benefit you are using the service. References herein to “you” and “your” shall mean “you and/or your employer, end user and your institution.”

In the interpretation of these Terms of Use, the following provisions apply unless the context otherwise requires:

  1. the singular includes the plural and vice versa;

  2. a reference to any legislation includes any statutory modification or re-enactment of, and any subordinate legislation issued under, that legislation or legislative provision;

  3. a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

  4. a reference to any gender includes all genders;

  5. a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to the Terms of Use;

  6. a reference to any party to the Terms of Use or any other document or arrangement includes that party’s executors, administrators, substitutes, successors, and permitted assigns;

  7. a reference to dollars or $ means the lawful currency of Australia;

  8. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and headings are for ease of reference only and do not affect interpretation;

  9. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Terms of Use, or any part of it; and

  10. unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar inclusive expressions.

PART A: General terms of access to and use of the Website (Terms of Access) applicable to both Authorised Companies and Individual Users

  1. Use of the Website

  1. Subject to PART B below, you may not use the Website (or the material contained on it) or the Database for any illegal or unauthorised purpose. This involves:

    1. the reproduction of the material in any material form;

    2. the distribution or dissemination of the material to any third parties (including parties who are not Authorised Companies) in any material form;

    3. re-transmission of the material by any medium of communication;

    4. uploading or reposting the material to any other site on the internet; and

    5. “framing” the material on the Website with other material on any other website.

The above are unlawful in any jurisdiction and are specifically prohibited by these Terms of Access.

  1. Despite the above restrictions on use of the material on the Website, and subject to your continued compliance with these Terms of Use (and in consideration of your payment of our fees), we grant you a limited non-exclusive, non-transferable, non-sublicenceable, revocable right to access and use the Services (including access to certain content available on the Services (“Content”) solely in accordance with the terms set out in the Terms of Use and any Purchase Order during the Term.

  2. You may download material from the Website or the Database for your commercial use provided you do not remove any copyright and trademark notices contained on the material.

  3. You may not modify or copy:

    1. the layout of the Website; or

    2. any computer software and code contained in the Website.

  1. You may only use the Services in accordance with the Terms of Use, any directions given by us (acting reasonably), and with all local and foreign laws and regulations applicable to you, and for lawful purposes.

  2. You must not, nor cause or permit any other person to:

    1. use the Service in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s rights (including Intellectual Property Rights), violates these Terms of Use, or which restricts or interferes with the provision of the Services by us to any other user;

    2. alter, modify, adapt or copy the whole or any part of the Services;

    3. reproduce, duplicate, sell, exploit, decompile, dissemble, reverse engineer, enhance, alter or otherwise interfere with the whole or any part of the Services;

    4. remove or obscure any copyright, trademark or other proprietary notice on the Services;

    5. enter into any transaction relating to access or use of the Services with a party other than us, without our prior written consent;

    6. attempt to disable or circumvent any security or other technological measure designed to protect the Services or users;

    7. attempt to gain unauthorised access to the Services, computer systems or networks connected to the Services, through hacking, password mining or any other means; or

    8. use the Services for any purpose or activity of an illegal, fraudulent, obscene, offensive, personally offensive or defamatory nature or use any mechanism, device, software or script to affect the proper functioning of the Services.

  1. At all times you must:

    1. be honest and faithful in all your dealings;

    2. not engage in any unsound, unethical or improper business;

    3. provide full and correct information to us, and provide truthful explanations to us, in all matters relating to the Terms of Use;

    4. ensure at all times that your conduct does not bring any discredit on us or cause any nuisance or disruption to us or our employers;

    5. immediately notify us if you become aware of any malfunction of the Service or any breach of the Terms of Use.

  1. Registration

  1. In order for us to provide certain functions of the Service to you or to access the Content, you must complete your registration details as described on the Services and agree to these Terms of Use.

  2. At the time of registration, you must nominate an email address, username and password.

  3. You agree to:

    1. keep your username and password confidential and not disclose it to any other person;

    2. ensure that your registration details are true and correct at all times and must notify us of any change to your registration details as originally supplied; and

    3. immediately notify us of any unauthorised use of your account or of password or any other breach of security.

  1. You are solely responsible for selecting and providing access to authorised users under your account and for any use of the Service by your account (even by unauthorised users).

  2. You will select, supervise, monitor, and train the authorised users who use the Service to ensure the proper use of the Service, compliance with the Terms of Use, and the security of the information maintained in the Service.

  3. You acknowledge and agree that we are not responsible for the selection, supervision, monitoring, or training of your authorised users. You are responsible for terminating access to the Service for individuals who are no longer authorised to use the Service in connection with your account.

  1. Links to other websites

  1. The Website contains links to sites on the internet owned and operated by third parties and which are not under our control.

  2. In relation to the other sites on the internet, which are linked to the Website, we:

    1. provide the links to other sites as a convenience to you and the existence of a link to other sites does not imply any endorsement by us of the contents of the linked site; and

    2. are not responsible for the material contained on those linked sites.

  1. Tax

  1. Unless otherwise provided in the Terms of Use or in a separate agreement executed by you and us, the Service Fee and other fees we charge do not include any taxes or duties (including, without limitation, sales, use, value- added, and withholding taxes and duties) and related fees, and you are responsible for paying all taxes, duties, and related fees arising from your purchases hereunder, excluding taxes based on our net income, workers, or property. If we have the legal obligation to pay or collect taxes, duties, or related fees for which you are responsible, the appropriate amount of such taxes, duties, and related fees shall be invoiced to and paid by you, unless you provide a valid tax exemption certificate authorised by the appropriate taxing authority.

  2. If you are in Australia, all consideration provided for any taxable goods or services supplied under the Terms of Use is exclusive of GST unless the contrary is expressly stated by us in writing. You will be responsible for paying any and all GST. The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply that becomes due.

  3. If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these Terms of Use:

    1. a corresponding adjustment must be made;

    2. adjustment notes must be issued; and

    3. any payment must be made between you and us as may be necessary to give effect to the adjustment.

  1. Disclaimers and limitations of liability

  1. We are an agent in the relationship between you and other users, and any information we make available to you (including any user-submitted Content or information) is provided by third parties and does not originate from us. We do not independently verify the information provided by third parties, including information provided by any Individual User, and pass on information to you (including any details about the Individual Users) with no representation or warranty regarding the accuracy, truthfulness, usefulness, reliability or integrity of any information that has not expressly originated from us.

  2. With respect to the information contained on the Website, Database, or linked sites on the internet, we:

    1. are making the Website and the Database available without assuming a duty of care to users; and

    2. are not in the business of providing professional advice,

and therefore, to the fullest extent permitted by law, we disclaim any and all warranties, guarantees or representations (either express or implied) about:

    1. the accuracy, reliability, completeness, usefulness, timeliness or otherwise of any information contained or referred to on the Website or of any linked sites; and

    2. the merchantability or fitness for any particular purpose for any service or product of any information contained or referred to on the Website, the Database or on any linked sites.

  1. We will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of you:

    1. acting, or failing to act, on any information contained on or referred to on the Website or any of the linked websites; and

    2. using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website or any linked sites.

  1. We do not warrant, guarantee or make any representation that:

    1. the Website, the Database, or the server that makes the site available on the internet are free of software viruses;

    2. the functions contained in any software contained on the Website will operate uninterrupted or are error-free; and

    3. errors and defects in the Website or the Database will be corrected,

and you must make your own precautions to ensure that the process which you use for accessing the Website and the Database does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

  1. We are not liable to you for:

    1. errors or omissions in the Website, the Database, or linked sites on the internet;

    2. delays to, interruptions of or cessation of the services provided in the Website, the Database or linked sites;

    3. any interference or damage to your own computer system which arises in connection with your use of the Services, the Website, the Database, or linked sites; and

    4. defamatory, offensive or illegal conduct of any user of the Website and the Database,

whether caused through our negligence or the negligence of our workers, independent contractors or agents, or through any other cause.

  1. You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Website and the Database.

  2. Where the Content provided by others contains opinions or judgements of third parties, we do not purport to endorse those opinions or judgements, nor the accuracy or reliability of them.

  3. You are responsible for all activities that occur under your account on the Services, and you are liable for the acts, defaults, and omissions of any person who accesses your account on the Services, as if they were acts, defaults, or omissions by you.

  4. Whilst we will undertake reasonable efforts to protect the information which we transmit and receive in accordance with our Privacy Policy, we do not warrant the security of any information which you transmit to us, and you are responsible for ensuring you have retained appropriate backups of any Content which you may provide to us.

  5. Our sole liability for breach of any terms, conditions and warranties in jurisdictions where such terms, conditions and warranties are implied and required by law, where the breach relates to the supply of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and where it is fair and reasonable to do so, is limited at our option to one or more of the following:

    1. the supplying of the Services again; or

    2. the payment of the cost of having the Services supplied again.

  1. To the fullest extent permitted by law and except as otherwise expressly stated in these Terms of Use, our liability to you for any reason (including any breach of, or omission under, these Terms of Use) is limited in aggregate to the amount of the service fees paid to us by you under any Purchase Order in respect of that calendar month.

  2. To the fullest extent permitted by law we are not liable for any direct, indirect, incidental, special and/or consequential damage, loss, claim, expense or loss of profits, economic loss, business interruption, loss of goodwill, loss of profits, loss of savings on overheads or any loss of data which result from any use or access, or any inability to use or access, or misuse by you or any other party, of the Services or otherwise in connection with any content, even if we have been advised of the possibility of such damages or loss.

  3. Nothing in these Terms of Use is intended to exclude or limit any condition, warranty, right, or liability in a manner that is not permissible under applicable law. In some circumstances, some jurisdictions may not permit the exclusion of certain warranties or conditions, the exclusion of incidental or consequential damages, or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract, or breach of implied terms. Accordingly, only the above limitations which are lawful in the applicable jurisdiction in which you may use the Services. With respect to any limitations which are not lawful as stated, our liability will be limited to the maximum extent permitted by applicable law.

  4. Subject to this clause 5., our liability for loss or damage to you will be reduced proportionately to the extent that:

  1. such loss or damage has been caused by your failure to comply with your obligations and responsibilities under these Terms of Use; or

  2. your actions or omissions have contributed to such loss or damage

regardless of whether a claim is made by the other party.

  1. Use and disclosure of personal information

  1. We and any people or legal entities authorised by us may collect and process the personal information:

    1. which you may provide when accessing the Website, such as your name, address, e-mail address and other personal information about you; and

    2. regarding the way in which you use the Website including, without limitation, information acquired through the use of cookies delivered to your computer when you access our Website.

  1. We may authorise others to offer you goods and services using the information acquired, as described in clause 6.(a).

  2. We will comply with the Australian privacy legislation with respect to our collection, storage, use and disclosure of your personal information. Please refer to our full Privacy Policy for details of how we collect, store, use and disclose your personal information.

  3. You will at all times indemnify and keep indemnified us and our respective officers, workers, contractors and agents (Those Indemnified) from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of Those Indemnified arising from any claim, demand, suit, action or proceeding by any person against any of Those Indemnified where such loss or liability arose out of, in connection with or in respect of:

    1. your use of the Services (including but not limited to your access and use of Website, the Database and the Content);

    2. any breach of these Terms of Use by you; and

    3. our use, publication or distribution of the material or information supplied by you from time to time.

  1. Termination of access

  1. Your agreement with us commences on the date you successfully register on the Website or commence using our Services, and remains in force until terminated in accordance with this Terms of Use or as otherwise stipulated under any Purchase Order.

  2. We will use reasonable efforts to make the Service accessible 24 hours a day, seven days a week or as otherwise stated on the Service from time to time, but we do not guarantee such availability.

  3. We reserve the right from time to time to immediately alter, interrupt, suspend, or terminate your right to access the whole or any part of the Services at any time in our sole discretion and without giving any explanation or justification for the termination of access.

  4. On termination, you must immediately pay any and all outstanding invoices or any charges or fees incurred as a result of your access and use of the Service before the date of termination.

  5. You agree that we will not be liable for any costs, losses or damages of any kind that may arise from any such interruption, suspension, termination or alteration pursuant to this clause.

  6. Termination does not affect any accrued rights or liabilities of either you or us, nor does it affect any provision which is expressly or by implication intended to operate after termination.

  1. Alteration of Terms of Access

  1. We reserve the right to change these Terms of Access:

    1. with or without further notice to you; and

    2. without giving you any explanation or justification for such change.

  1. Subject to clause (c) below, amendments will be effective immediately upon notification on the Website. Your continued use of the Website will represent an agreement by you to be bound by the Terms of Use as amended.

  2. Where appropriate, we will take reasonable steps to notify you of any amendments in relation to the Terms of Use, including via email to the email address which you have provided to us.

  1. Intellectual property rights

  1. We reserve all intellectual property rights, including, but not limited to, copyright in the Content, the Website, the Database, and any material or services provided by it. The Content is provided to you in accordance with the licence set out under clause 1.(b) above only and may not be:

    1. re-sold or re-distributed in any material form;

    2. stored in any storage media; or

    3. re-transmitted in any media,

without our prior written consent.

  1. We reserve the right to modify, vary, correct, alter, remove or delete any part or all of the Website, the Content, or the information set out in the Database at any time in our sole discretion and without any notice to you. We and our respective officers, workers and agents have no liability for any costs, losses or damages of any kind, which you may incur, arising whether directly or indirectly as a consequence of removing any material or information from the Website.

  2. All logos, icons, brand names or service names that identifying the owner and operator of the Website are our copyright property or our trade marks or service marks. All other trade marks or service marks on the Website are the property of their respective owners. You must obtain written permission before reusing any copyrighted material that is published on the Website. Any unauthorised use of the materials appearing on the Website may violate copyright, trade mark and other property rights or legal protections and could result in criminal and/or civil penalties.

  3. Other than for the purposes of, and subject to the conditions prescribed under applicable copyright laws which apply in your location, and except as expressly authorised by the Terms of Use, you may not in any form or by any means without our prior written approval:

    1. adapt, reproduce, distribute, print, display, perform, publish or create derivative works from any part of the Service; or

    2. commercialise any Content, goods or services obtained from any part of the Service.

  1. You guarantee and warrant that you hold all intellectual property rights in the Content which you upload to the Website or the Database and/or have obtained any relevant consents which may be required under applicable privacy legislation for the use and disclosure of such information (and you indemnify us from any damages, costs, losses or liabilities which may arise from our use of the Content). By submitting any information or other material to us (including inputting data or engaging in any other form of communication), you grant to us a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the information or material:

    1. for the purpose of complying with our obligations under, and to permit you to comply with all of your obligations under, the Terms of Use;

    2. use, copy, sublicence, redistribute, edit, adapt, transmit, publish and/or broadcast, publicly perform or display; and

    3. sublicence to any third parties the unrestricted right to exercise any of the rights granted in paragraph (ii), provided that, where such use is not for the purpose of complying with the Terms of Use, all personal and Sensitive Information will be removed from the information and materials before such information and/or materials is made available to any other person.

  1. The licence in the previous clause includes the right to exploit all proprietary rights in that information or other material including but not limited to rights under copyright, trademark, service mark or patent laws under any jurisdiction worldwide.

  2. You unconditionally and irrevocably consent to all acts and omissions by us, or people authorised by us, which would otherwise amount to an infringement of your moral rights in that information or other material. This includes consent to change the information or other material even if the change amounts to a “derogatory treatment” of the information or other material as that term is defined in Division 4 of Part 9 of the Copyright Act 1968 (Cth).

  3. At our request and expense, you will execute and deliver to us such instruments and take such other actions as may be required to give full legal effect to this grant of licence and consent.

  4. You are solely responsible for retaining/maintaining/storing and backing up (electronically and/or with hard copies) any information or materials that you wish to preserve. We are not responsible for unauthorised access to, use of or alteration of your information.

  5. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any information or materials you post to or through the Service. You expressly release us and our agents, partners, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to your posting of information or materials.

  1. Notifiable data breaches

If you suspect or become aware of any suspected data breach relating to personal information which you have accessed in connection with your use of the Services (Data Breach):

  1. you will immediately notify us in writing of such Data Breach and fully co-operate with us at your expense to prevent or stop such a Data Breach;

  2. you agree that all Eligible Data Breaches related to your use of the Services must be notified to the Australian Information Commissioner and to affected individuals in the manner prescribed by the Notifiable Data Breaches Scheme under the Privacy Act 1988 (Cth);

  3. where you are unsure as to whether the Data Breach may be an Eligible Data Breach, we shall have the absolute discretion to determine whether the Data Breach is an Eligible Data Breach and you agree to provide us with all such assistance as we may reasonably require in relation to making this determination;

  4. you will fully and promptly comply with applicable laws, and take the appropriate steps to remedy such Data Breach, including at our request (not to be unreasonably refused); and

  5. you will indemnify and hold us and our respective officers, directors, workers and agents, harmless from and against any and all claims, loss, costs and damages, including reasonable fees, arising out of or relating to any third party claim arising from breach by you of your obligations contained in this clause, except to the extent resulting from the acts or omissions by us.

  1. Relevant jurisdiction

  1. If any part of these Terms of Access is found to be void, unlawful, or unenforceable then that part will be deemed to be severable from the balance of these Terms of Access and the severed part will not affect the validity and enforceability of any remaining provisions.

  2. These Terms of Access will be governed by and interpreted in accordance with the law of Western Australia, without giving effect to any principles of conflicts of laws.

  3. You agree to the jurisdiction of the courts of Western Australia to determine any dispute arising out of these Terms of Access.

PART B: Additional terms of use for Authorised Companies (Terms of Use)

  1. Payment and Fees

  1. When you purchase access to the Service from us, the parties will mutually agree to invoicing and payment terms stipulated in any Purchase Order, in addition to the provisions stated in the Terms of Use.

  2. The Purchase Order will set out whether you will be charged in relation to your use of the Services on a fee-for-service basis or via a subscription fee model or both.

  3. Prior to using the Services on a fee-for-service basis, you will provide us with your credit or debit card details and authorise us to hold and store those details and make deductions from that credit card in accordance with the terms set out in the Purchase Order.

  4. If the Purchase Order sets out a subscription fee model, you agree to pay subscription fees upon your use of the Services based on available pricing plans. You agree that:

    1. exceeding your current plan’s limit will charge your account automatically and increase your subscription to the higher tier;

    2. merchant fees will apply in addition to the available pricing plans on credit and debit card payments, as well as on online payment services such as PayPal;

    3. your subscription will automatically renew at the end of the subscription period and your account will be charged unless you have cancelled your subscription;

    4. cancelling your subscription will prevent future payments. Access to the MedPass Australia system will continue for the remainder of the existing billing period. Access to additional Tiers will be restricted until an active subscription is in place;

    5. no refund will be given on cancellation or reduction in usage of the existing subscription; and

    6. we reserve the right to update, amend, add, remove or replace available pricing plans, terminology, and functionality in the MedPass Australia system.

  1. If you fail to pay us any amount payable under the Terms of Use when due, then:

    1. all money you owe us becomes immediately payable;

    2. we may suspend providing the Service to you, and may charge a reactivation fee for the suspended Service;

    3. you must pay, in addition to the amount outstanding, interest at the rate equal to the cash rate target published by the Reserve Bank of Australia, plus a margin of 5% per annum or the highest amount permitted by applicable law on the amount outstanding for each day during which the default continues; and

    4. you must pay all reasonable expenses incurred by us in enforcing the Terms of Use, including, but not limited to, all expenses of any legal proceeding and all reasonable attorneys’ fees incurred in connection with such action.

    5. On 1 July of each year, after the anniversary of the commencement date, MedPass Australia reserves the right to increase the fees by the yearly percentage increase in line with Australia Consumer Price Index (CPI). The increase shall be communicated in writing in June, effective 1 July. The new fees are equal to the prior year’s fee multiplied by the CPI over the prior twelve months (ending with the June quarter.