SaaS Agreement

Instance of SaaS Agreement

Capitalised words and phrases are defined in the “Definitions” section of this document unless otherwise specified.

Parties

Provider means Carefully Planned Pty Ltd, ABN 97 653 071 606, contactable on support@carefullyplanned.com.au.

User means you, the person using Provider’s Service (as an Individual user or a Service Provider), contactable on any email communicated to Provider.

Background

• Provider owns and operates the SaaS Service.
• Provider will provide the Service to User on the terms of the Agreement.

It is agreed as follows.

1. Agreement Creation

User agrees to the terms of the Agreement with the clickwrap procedure on the Service.

2. Agreement Duration

• The Agreement will apply for the Term and will continue to renew automatically on a rolling basis for further Terms.
• The Agreement will not automatically renew for another Term if User gives Provider 5 Business Days’ notice using the interface of the Service.
• In case of such notice the Agreement will continue to the end of the Term when notice was given, but will not roll over for a new Term.

3. Supply of Services

Provider will provide the Services described in the Service Outline to User in accordance with the Agreement.

4. User Categories

Types of Users

• Service Providers who are funded by the government under the NDIS; and
• Individuals who pay to use the Service to connect with Service Providers.

Information and Payment

• Service Providers will be invited to use the Service by individual users via email.
• Individual users agree and acknowledge that they will be sharing information (including medical information) with the Service Providers when using the Service.
• Service Providers will not pay for the Service.

5. Payment Calculation

Payment amounts

The fees payable to Provider in exchange for the Services by Individual User will be calculated at the rate(s) set out in the Service Outline.

6. Payment Method

Payment terms

• Provider will invoice User (or its representative or “plan manager”) for the Services rendered, in advance of the provision of Services.
• User authorises Provider to effect payment of invoices via credit card every month, in advance of the provision of Services.
• The automatic payment of invoices issued for Services will be 10 days after the issuance of the invoices.

Service suspension

Provider may suspend the provision of any part of the Services to User under the Agreement immediately at its discretion if User fails to pay any amount due under the Agreement .

7. Service Accounts

Account undertakings

User agrees to:

• provide accurate and complete information to Provider to establish the Account;
• keep details used to access the Account secure and private; and
• notify Provider in the event that the Account’s security is compromised in any way.

Account responsibility

• User agrees that it will be responsible for the Account’s activity, even if the Account is used in an unauthorised way by another person.

• User will not use the Service unless User is over 18 years of age.

• If a person is using the Service on behalf of a User, that person must be a “nominated representative” and have the authority to act on behalf of the User.

8. Service Support

Setup

User is entirely responsible for the setup and installation of the Services.

Support

Provider will provide support to User at Provider’s discretion.

9. Service Interruptions

Unplanned

User acknowledges that:

• interruptions as a result of third party suppliers to Provider are beyond the control of Provider; and
• the Services may occasionally be interrupted due to technical difficulties.

Remedies

Provider will use reasonable efforts to remedy interruptions to the Services as soon as reasonably practicable.

Planned interruptions

Provider may interrupt the provision of the Services with 5 Business Days’ notice.

10. Confidentiality

Primary obligation

Provider will Keep Secret the Confidential Information of User and use it only for performing obligations or exercising rights under the Agreement.

11. Intellectual Property Protection

• Provider reserves the right to alter any element of the Service IP at its discretion.
• User agrees not to reverse engineer any part of the Service IP.
• No licence or right is granted over any intellectual property in the Service IP unless explicitly described in the Agreement.
• User does not have any right to resell or sub-licence the Service IP unless the Agreement explicitly provides otherwise.
• If User provides Feedback to Provider, User Transfers Intellectual Property Ownership in the Feedback (and any resulting enhancements to the Service) to Provider.

12. Privacy

• Provider will store and use the Personal Information of User in accordance with Provider’s Privacy Policy.
• User is responsible for its own compliance with privacy law. Provider does not promise that any use of the Services by User complies with any privacy law.

13. Data Rights

Ownership of Data

Ownership of the Data remains with User.

Data licence

User Grants A Licence over the Data to Provider for the purpose of providing the Services and meeting any other obligations under the Agreement that is global, transferable, sublicensable, non-exclusive, royalty free and perpetual.

14. Data Disclosure

Provider will Keep Secret the Data and use it only for the purpose of providing the Services, however, it reserves the right to disclose Data to subcontractors that work with Provider to provide the Services.

15. Acceptable Use

General use obligations

• User agrees to use the Service in accordance with the law at all times.
• The parties agree that a breach of any requirement in this section gives Provider the right to immediately suspend User’s access to the Service until Provider is reasonably satisfied that the use breaching this the requirement will be discontinued.

Prohibited commercial uses

User agrees not to use the Service:

• for commercial reasons other than under agreement with Provider;
• in ways other than as the Service was designed to be used;
• in a way that infringes the intellectual property rights of a third party;
• for the purposes of “crawling” or otherwise harvesting data; or
• for the purposes of reverse engineering or creating derivative works of any part of the Service.

Service operation

User agrees not to use the Service:

• such that the use interferes with Provider’s ability to provide the same service to other parties; and
• that could reasonably be categorised as ‘malware’.

16. Posted Information

User agrees that:

• it is responsible for the legal consequences arising from Posted Content;
• Provider is in no way responsible for legal consequences arising from Posted Content;
• Provider may edit or remove Posted Content at its discretion; and
• User promises that it will not, by posting Posted Content, infringe the Intellectual Property Rights of any third party, or cause Provider to do so.

17. Backup Responsibility

Provider performs backups of Data daily at 11:00am UTC. Each backup is retained for 35 days.

18. Limitation of Provider’s Liability

The amount User can claim from Provider in relation to the Agreement and Services (including for any Example Limitation Risks) is Limited To The Legal Minimum.

19. Termination

Termination for breach

Provider can terminate the Agreement immediately by written notice if:

• it notifies the User of an Agreement breach in writing; and
• the breach is not remedied 5 Business Days after the breach notification.

The Provider’s obligations under the Agreement will be suspended until the notified breach is remedied.

Insolvency

Provider may terminate the Agreement immediately with written notice if User becomes insolvent.

Termination for non-payment

Where User does not pay an invoice from Provider on the payment terms of the Agreement, Provider may immediately terminate the Agreement with written notice to User.

20. Dispute Resolution

Parties will use dispute resolution

• Where any dispute arises between the parties in relation to the Agreement, the parties must comply with the procedure described in this section to resolve the dispute before a party brings court proceedings.
• This section will not apply to payments due to Provider under the Agreement.
• Nothing in this clause prevents any party from bringing court proceedings for urgent injunctive, interlocutory or declaratory relief.

Process

The parties agree to the Dispute Resolution Discussion.

21. Document Inconsistency

This document will take precedence over the Service Outline to the full extent of any inconsistency between those documents.

22. Agreement Changes

• Provider may change the Agreement by notifying User in writing with 5 Business Days’ notice.
• If User does not agree to the Agreement changes, User must cease using the Services.

23. Taxes

• User will be liable for all duties and taxes connected with the Agreement.
• User will be liable for taxes incurred under GST Law.
• Payment amounts referenced in the Agreement will be exclusive of GST Law amounts unless explicitly stated.

24. General Provisions

Governing law

• The governing law of the Agreement will be the law of Victoria.
• The parties agree that this state or territory will be the exclusive jurisdiction for any proceedings under the Agreement.

Notice

Parties will send notices and other written communications connected with the Agreement to the contact details listed in the “Parties” section.

Assignment

Neither party may assign its obligations under this Agreement without the prior written permission of the other party.

Agreement technicalities

The parties agree to:

• the Boilerplate Provisions; and
• the Interpretation Principles.

Definitions

Account

means a digital account for the purpose of the Services.

Agreement

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.

Boilerplate Provisions

The following sections apply to the Agreement.

Further assurances

The parties agree to do everything required to give full effect to the Agreement.

Entire agreement

The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.

Electronic signature

The Agreement may be executed or entered into electronically.

Counterparts

The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.

Waiver

No right or obligation under the Agreement will be waived unless the waiver is explicitly made in writing.

Severance

Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.

Binding on successors

The Agreement is binding on each party’s successors and permitted assigns.

Agreement expenses

The parties will cover their own expenses in preparing the Agreement documents.

Business Days

means a day, between the hours of 9am to 5pm, in the jurisdiction of the governing law of the Agreement (Area), that is not:

• a Saturday or Sunday; or
• a public holiday, special holiday or bank holiday in the Area.

Compulsory Condition, Compulsory Conditions

means any condition, warranty or guarantee that the law does not permit to be limited or excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).

Confidential Information

means all information:

• disclosed by a disclosing party to recipient party; or
• which otherwise becomes to be known by the recipient party,

that could reasonably be regarded as confidential to the disclosing party, and includes information relating to:

• technology, processes, products, inventions or designs used or developed by a disclosing party;
• trade secrets and know-how;
• customer lists and customer data; and
• commercially sensitive information.

Data

means any data or information conveyed to the Service by User.

Dispute Resolution Discussion

• The party claiming that there is a dispute must provide notice of the dispute in writing to the other party that includes full and detailed particulars of the dispute (Dispute Notice).
• The party receiving the Dispute Notice must respond in writing to the initiating party with a response that includes full and detailed particulars of its position on the dispute within 10 Business Days (Dispute Response).
• Within 10 Business Days of the Dispute Response due date both parties must arrange a meeting between representatives (in person or on the telephone) with sufficient authority to resolve the dispute (Resolution Meeting).
• The discussion process above will be deemed to have ended if there is no resolution within 10 Business Days of the Resolution Meeting or a written agreement between the parties to extend this deadline.

Example Limitation Risks

means any liabilities arising from the risks described below.

Risks from the Agreement, including:

• breaches of the Agreement;
• any delay connected with the Agreement;
• negligence connected with the Agreement and its subject matter;
• the termination of the Agreement;
• any act or omission connected with this agreement; and
• third party reliance on the subject matter of the agreement.

Feedback

means any comments or suggestions on the Service by User resulting from use of the Services by User.

GST Law

means the A New Tax System (Goods and services Tax) Act 1999 (Cth).

Grants A Licence

means that:

• The licensor grants the licensee a licence to the Intellectual Property Rights in the licence subject for the licence purpose.
• The licence granted above will be subject to any terms and conditions specified in the clause.
• The licensor warrants that the licensee’s legitimate exercise of the licensed Intellectual Property Rights for the licence purpose will not infringe the rights of any third party.
• The licensor warrants that it will give and obtain any moral rights waivers and consents necessary to ensure the licensee can use the Intellectual Property Rights for the licence purpose without infringing moral rights.

Individual

means an individual user who pays for the Service.

Intellectual Property Rights

means all present and future rights conferred by common law, equity or statute connected with the results of intellectual activity, as well as the benefit of any application to register, renew or extend such a right.

Interpretation Principles

The Agreement will be interpreted as follows unless it explicitly states otherwise.

Grammatical Forms

In this document grammatical forms will be interpreted as follows:

• headings are for convenience and will not affect interpretation; and
• “$” means the Australian dollar.

Definitions

• Parameters in definitions are indicated with italic text.
• Defined terms are capitalised and not legally effective except as described below.
• Provisions using definitions with parameters (Parameter Provisions) are not legally effective except as described below.
• Parameter Provisions will be read as replaced with the rights and obligations in the definition, and parameters will be substituted with the equivalent concepts in the Parameter Provision on a plain reading of it.
• The Parameter Provision may stipulate exceptions, which will be read as an exception to the rights and obligations in the definition.
• Where a definition refers to rights and obligations as “these” or “this” it refers to those created by the replacement of the Parameter Provision with the definition.

Keep Secret

Obligation of confidentiality

• The recipient party agrees to use the confidentiality subject solely for the confidentiality purpose.
• The recipient party agrees to keep the confidentiality subject strictly confidential for the confidentiality period.

Standard of confidentiality

The recipient party agrees to:

• use industry standard security techniques to prevent;
• immediately notify disclosing party of;
• comply with disclosing party’s reasonable instructions regarding; and
• use its best endeavours to mitigate the effects of,

any unauthorised access to or use of the confidentiality subject for which the recipient party is responsible in whole or in part.

Disclosures to certain entities

The recipient party may disclose the confidentiality subject to:

• professional advisors like lawyers or accountants; and
• subsidiaries or parent entities,

but only to the extent necessary to effect for the confidentiality purpose.

Disclosures for legal reasons

• The recipient party may disclose the confidentiality subject if it is, or subsequently comes to be, publicly known through no fault, act, or omission on the part of the recipient party.
• The recipient party is also permitted to disclose the confidentiality subject if:

  • the disclosure is necessary in order to enforce the Agreement; or
  • the disclosure is required by law or a binding order of a government agency or court, but (to the extent permitted by law) the recipient party must not make such a disclosure without first notifying disclosing party and giving disclosing party a reasonable opportunity to object to the disclosure.

• The recipient party must comply with disclosing party’s reasonable requests with regard to any permitted disclosure.
• The recipient party must use reasonable endeavours to ensure any person receiving the confidentiality subject through a permitted disclosure will treat it confidentially, and under substantially the same obligations as these confidentiality obligations.

Damages not an adequate remedy

• The parties agree that:

  • the value of keeping the confidentiality subject confidential is difficult to assess; and
  • damages would not be an adequate remedy for the irreparable harm that would be caused by the recipient party’s breach of these confidentiality obligations.

• If the recipient party actually breaches or threatens to breach these confidentiality obligations, disclosing party will be entitled to enforce the recipient party’s confidentiality obligations by injunctive relief or specific performance, in addition to any other available remedy. The disclosing party will not be required to prove actual or special damage in order to do so.

Effects of Disclosure

The disclosure of the confidentiality subject from a disclosing party to a recipient party under the Agreement will not:

• have the effect of granting any rights over Intellectual Property Rights in the confidentiality subject;
• establish any relationship between the parties other than that created explicitly by the Agreement; or
• impose any obligation on a disclosing party to disclose accurate or current information in the confidentiality subject.

Mutual obligations

Each party to the Agreement may simultaneously be a disclosing party and a recipient party with respect to the obligations above.

Limited To The Legal Minimum

The limited party deals with the limiting party in respect of the limitation subject at its own risk. To the fullest extent permitted by law, limiting party excludes all liability (including consequential loss) to limited party for any liabilities connected directly or indirectly with the limited party and limiting party dealings in relation to the limitation subject, including liabilities based on:

• contract law;
• tort law; or
• legislation,

and including liabilities caused by any limitation risks.

Indemnities not limited

The foregoing limitation of liability will not apply to indemnities given by limiting party to limited party under the Agreement.

Implied Conditions

To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the limiting party and the limited party in respect of the limitation subject are excluded from the Agreement.

Compulsory Conditions

To the fullest extent permitted by the law, limiting party’s liability to the limited party for breaching a Compulsory Condition in relation to the limitation subject is limited to:

• in a case where a breach is deemed to be a breach in respect of goods:

  • the replacement of the relevant goods or the supply of equivalent goods;
  • the repair of the relevant goods;
  • the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
  • the payment of the cost of having the relevant goods repaired; and

• in a case where a breach is deemed to be a breach in respect of services:

  • the resupply of the relevant services; or
  • payment of a sum equal to the cost of resupplying the relevant services.

The limiting party will choose which of these options will apply.

Personal Information

means any information that is categorised as ‘personal information’ or ‘personal data’ under privacy law, or is otherwise regulated by privacy law.

Posted Content

means any content or information posted by User that is available to third parties.

Privacy Policy

means Provider’s privacy policy published at https://carefullyplanned.com.au.

Service, Services

means the services provided by Provider to User, including healthcare action plans, goals, notes, documents, reviews and comments for parents and carers of children with additional needs and the health providers they work with. Further information on the services is available at https://carefullyplanned.com.au and in the Service Outline.

Service IP

means the Intellectual Property Rights in the Services provided.

Service Outline

means the product information described at https://carefullyplanned.com.au.

Service Provider, Service Providers

means a provider of services under the NDIS who accesses information by User.

Term, Terms

means a time period of 1 month.

Transfers Intellectual Property Ownership

• The assignor assigns all current and future Intellectual Property Rights in the transfer subject to assignee.
• The assignment will be a global assignment of Intellectual Property Rights.
• The assignor warrants and represents to assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the assignee’s legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.
• The assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.
• The assignor gives (and where it does not hold the relevant moral rights warrants that it will obtain) any moral rights waivers and consents necessary to ensure the assignee can deal in the Intellectual Property Rights in the transfer subject in accordance with this clause without infringing moral rights.