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Software as a Service Agreement (SaaS)

A.

Thank you for using MEMOREHAB Products.

B.

These Terms (as defined herein) describe the rights, responsibilities, and obligations for us and you when you use MEMOREHAB Products.

1
Acceptance of Terms
1.1
These Terms are binding with respect to MEMOREHAB Products when you complete and submit the Sign-Up Form for one or more MEMOREHAB Products upon MEMOREHAB’s written acceptance of such Sign-Up Form, or when you use and pay any part of our fees for the relevant MEMOREHAB Products.
2
Subscription Plans
2.1
MEMOREHAB offers paid subscription plans that allow you to use MEMOREHAB Products.
2.2
You must pay all fees (plus any taxes) during your subscription period and any renewal periods. Unless otherwise agreed in writing, fees are non-refundable.
3
Terms
3.1
These Terms with respect to the use of MEMOREHAB Products commence on MEMOREHAB’s acceptance of the relevant Sign-Up Form and continues until no subscription for MEMOREHAB Products remain in effect hereunder, unless otherwiseterminated under these Terms.
3.2
The subscription term granted under a Sign-Up Form (Subscription Period) is determined in such Sign-Up Form and if no such term is set forth, the subscription commences for the date of our acceptance of the submitted Sign-Up Form (Acceptance Date) and continues for one (1) year from the Acceptance Date (Initial Term), subject to clause 3.3.
3.3
If you have subscribed for the Initial Term for a one (1) year term under the Sign-Up Form, to avoid unintended service interruptions, at the end of the Initial Term, and at the end of each Renewal Term thereafter, the subscription term granted under each Sign-Up Form will automatically renew for an additional one (1) year term (Renewal Term), unless:
(a)
either party provides the other party with no less than 60 days' written notice prior to the commencement of the relevant Renewal Term of its intention to cancel such automatic renewal; or
(b)
this agreement is terminated earlier in accordance with clause 18.
3.4
MEMOREHAB will notify you 3 months prior to the commencement of the relevant Renewal Term and of your right to terminate this Agreement prior to the newRenewal Term.
3.5
The Initial Term and each Renewal Term are collectively referred to as the “Term”.
4
Your Obligations
To use any of the MEMOREHAB Products, you:
(a)
warrant and represent, if you are a health care practice, that all of your Associated Health Care Providers are health care practitioners (i.e. neuropsychologists, psychologists, or occupational therapists) registered with the Australian Health Practitioner Regulation Agency (AHPRA), and that you will remove any Associated Health Care Provider as soon as such Associated Health Care Provider is no longer registered with AHPRA.
(b)
must set up an account on the MEMOREHAB Websites for the use of the MEMOREHAB Products by following the process set out on the MEMOREHABWebsites.
(c)
provide us with all information as required by the MEMOREHAB Products.
(d)
not provide any information that you know is inaccurate, incomplete, misleading, deceptive, or offensive.
(e)
promptly notify us in writing of any dissatisfaction, complaint, proceeding or. lawsuit against you arising in connection with your use of any MEMOREHAB Product or the MEMOREHAB Websites.
(f)
not use any of the MEMOREHAB Websites and MEMOREHAB Products in violation of any applicable law or regulation.
5
Using MEMOREHAB Products
5.1
MEMOREHAB grants you a non-exclusive and non-transferable right to access and use the MEMOREHAB Products pursuant to these Terms and as described in the Sign-Up Form, and otherwise for your own internal business operations.
5.2
The use of a MEMOREHAB Products is not contingent on the delivery of any future functionality or feature or dependent on any oral or written public comments made by MEMOREHAB regarding future functionality or feature.
5.3
You acknowledge that a MEMOREHAB Product referenced in a Sign-Up Form is being. purchased separately from any other MEMOREHAB Products.
5.4
Certain MEMOREHAB Products may be subject to additional limitations, restrictions, terms and/or conditions specific to such MEMOREHAB Products (Specific Terms). In such cases, the applicable Specific Terms will be made available to you and your access to, and use of the relevant MEMOREHAB Product will be contingent upon your acceptance of and compliance with such Specific Terms.
5.5
You must maintain the confidentiality of all login information. You must immediately notify us of any suspected or actual unauthorised access to or use of the login information.
5.6
We reserve our right to discontinue your access to the MEMOREHAB Products (or any Authorised Use’s access to the MEMOREHAB Products) without notice if, in ouropinion,
(a)
your or the Authorised User’s behaviour is deemed inappropriate or is in breach of these Terms; or
(b)
we determine that a continued association with you or the Authorised User would materially adversely affect our reputation or fidelity to our mission.
6
Using MEMOREHAB Products
6.1
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the MEMOREHAB Products or otherwise use the MEMOREHAB Products, including, without limitation, modems, hardware, software, internet service and telecommunications capacity.
6.2
You are responsible for ensuring that such equipment and ancillary services are compatible with the MEMOREHAB Products.
7
Enhancements And Upgrades
7.1
MEMOREHAB may from time to time in its absolute discretion provide enhancements and/or upgrades to the MEMOREHAB Products (such as changes or improvements to the functions or performance of any existing MEMOREHAB. Product, and new functions or performance equal or superior to the precedingversion of any MEMOREHAB Product).
7.2
All enhancements and upgrades:
(a)
will be taken to be granted by MEMOREHAB to you on a “as is” and “as available” basis and otherwise subject to the same terms as these Terms;
(b)
subject to clause 7.2(c), will be taken to be part of the original grant to access the MEMOREHAB Product under clause 5.1 and subject to these Terms;
(c)
are granted by MEMOREHAB to you in consideration for the fees as stipulated under the Sign-Up Form or otherwise agreed between you and MEMOREHAB in writing.
8
Authorised User
8.1
You may designate various persons and assigning to them limited access rights for the use the relevant MEMOREHAB Products, as authorised users of the relevant MEMOREHAB Product, provided such persons are your Personnel and at least 18 years old or an Associated Health Care Provider (Authorised User).
8.2
MEMOREHAB allows your Authorised User to exercise the rights referred to in clause 5.1 for the same purpose as described under clause 5.1, provided that you secure an undertaking from each of your Authorised User that the Authorised User will use any MEMOREHAB Products solely for that purpose and in accordance with these Terms.
8.3
You are responsible for compliance with these Terms by all of your Authorised Users, including what Authorised Users do with their access rights, e.g. Your Material, or your Participants’ data, or from adding other Authorised Users, and removing Authorised Users’ access to the MEMOREHAB Products when required, for example if such Authorised User is no longer a engaged by you or if the Authorised User’s role has changed which does not require the Authorised User to access the MEMOREHAB Products.
9
Your Material
9.1
When you make Your Material available to us, you:
(a)
agree and acknowledge that you are solely responsible for Your Material.
(b)
grant to MEMOREHAB a non-exclusive, non-revocable, sub-licensable, royalty  free license to use, modify, adapt or create derivative works, or provide access to, share, store or download such data, and to access Your Material, for the purpose of providing our services to you, and enhance, improve and further develop our products and services.
9.2
You must ensure that Your Material, and its collection, use, processing, disclosure via the MEMOREHAB Products:
(a)
will not infringe any Intellectual Property Rights of any person; and
(b)
complies with all applicable Law (including Privacy Act 1988, where applicable).
9.3
For the avoidance of doubt, when you make personnel information (as defined in the Privacy Act 1988) available to us you must comply with the Privacy Act 1988,including but not limited to:
(a)
make all disclosures and obtain all consents necessary to allow us to collect, store, use, disclose and otherwise deal with the personal information lawfully in accordance with these Terms.
(b)
if you provide us with personnel information of a person under the age of 18 years (Minor), you must ensure you have obtained the express consent of the parent or guardian to the Minor to the collection, storage and process of the personnel information of the Minor by us in accordance with this these Terms;
(c)
where sensitive information including health information (in each case defined in the Privacy Act 1988) are provided by you to us, implement sufficient security controls and technological measures to handle and deal with that data in accordance with the applicable privacy laws.
9.4
Any Intellectual Property Right that is brought into existence by MEMOREHAB (including any deep learning which arises) as a result of its analysis of Your Material, such as using automated technologies, will vest in MEMOREHAB.
9.5
You must defend MEMOREHAB from any and all Claims brought against. MEMOREHAB by a third party alleging your violation or a violation of an Authorised User of a third party’s rights arising from or related to Your Material, including MEMOREHAB’s use of Your Material in connection with any MEMOREHAB Products in accordance with these Terms. You must indemnify MEMOREHAB (including any of its Personnel) for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorised arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by us, in connection with such Claims. This indemnification obligation is subject to your receiving:
(a)
written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice);
(b)
the exclusive right to control and direct the investigation, defense, or settlement of such claim at your expense; and
(c)
all reasonably necessary cooperation of MEMOREHAB at your expense,
provided you provide us with adequate security for all legal and other costs in connection with the defence of the Claim and any related proceedings and paysthese costs as they arise.
If you conduct any litigation you must consult with and keep MEMOREHAB fully informed of any actual or proposed developments in relation to the Claim.
10
Data Retention
10.1
MEMOREHAB uses one of the world’s leading cloud computing services created for building, testing, deploying, and managing applications and services through managed data centres for the provision of its services delivered through the MEMOREHAB Products.
10.2
We grant you a transferable, royalty-free licence to use the Enriched Material for your internal business purposes and for you comply with the applicable law orregulation.
10.3
You have access to and can download Enriched Material and Your Material from the MEMOREHAB Products during the Initial Term and the Renewal Term or the relevant MEMOREHAB Product.
10.4
We encourage you to download the Enriched Material and Your Material as soon as possible once it has been created to ensure that you have a copy for your records if this is required, in case there is a technical disruption with our data centre where theEnriched Material and Your Material is located.
11
Changes to MEMOREHAB Products
You acknowledge that, from time to time, MEMOREHAB may make changes to any MEMOREHAB Product, such as changing, adding or removing functions.
12
Associated Health Care Providers
12.1
You may grant your Associated Health Care Providers (AHCP) rights to use MEMOREHAB Products so that the AHCP has access to any part or all of Your Material and may use the MEMOREHAB Products for delivering suitable. rehabilitation programs to Participants.
12.2
When you grant the AHCP the rights pursuant to clause 12.1, you have been deemed to have granted to the AHCP in the Territory, a non-exclusive, non-revocable, royalty free license to use, modify, adapt or create derivative works, or provide access to, share, store or download such data, and to access such data through the MEMOREHAB Products (AHCP Provider Access).
12.3
Once you have provided your AHCP with AHCP Provider Access pursuant to clause 9.1 in conjunction with clause 9.2, the AHCP will be able to access the MEMOREHAB Products including Your Material and any Enriched Material (subject to the AHCP accepting user terms for such access and any access limitations defined by youunder clause 8.1) and to collaborate with your other AHCPs.
12.4
An AHCP may use the MEMOREHAB Product for the purpose as outlined under clause 12.3 and not for purposes unrelated to your internal business operations, unless otherwise approved by MEMOREHAB in writing.
12.5
You are solely responsible for your own products, support offerings and client. relationships. Notwithstanding anything to the contrary in these Terms, MEMOREHAB has no direct or indirect warranty, indemnity or other liability or obligations of any kind to your AHCP. MEMOREHAB is not responsible for any access to or use of MEMOREHAB Product and Your Material/ Enriched Material by AHCPs or their products or services, or for the security or privacy practices of any AHCP or its products or services. You are solely responsible for your decision to permit any AHCP or their products or services to access and use Your Material and/or theEnriched Material.
13
Intellectual Property
13.1
You acknowledge and agree that MEMOREHAB owns or licenses:
(a)
all Intellectual Property Rights in the Websites and MEMOREHAB Products;
(b)
any Developed Intellectual Property; and
(c)
any Enriched Material.
and nothing in these Terms is intended to transfer ownership of or interest in any Intellectual Property Rights of MEMOREHAB or any third party.
13.2
You further agree not to (and you must procure that no Authorised User will) disassemble, de-compile or otherwise reverse engineer MEMOREHAB Products or otherwise attempt to learn the source code, structure, algorithms or ideasunderlying the MEMOREHAB Products.
13.3
If You, or any of your Personnel or Authorised User, provides MEMOREHAB with ideas, comments, process descriptions, or suggestions (together Feedback) relating to MEMOREHAB’s business, MEMOREHAB Websites and/or MEMOREHAB Products, all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by MEMOREHAB and MEMOREHAB may use or disclose the Feedback (even if such Feedback is Confidential Information) for any purpose, without any compensation to you (or any of your Personnel or Authorised User, as the case maybe) or any restriction or obligation on account of Intellectual Property Rights or otherwise. In relation to any moral rights that may arise by operation of the Copyright Act 1968 (Cth) in respect of any Feedback you must procure that each Personnel or Authorised User irrevocably and unconditionally waives and agrees not to enforce any and all moral rights, including, without limitation any limitation on. subsequent modification, to the extent permitted under applicable law.
13.4
You agree to indemnify MEMOREHAB fully against all liabilities, costs and expenses which MEMOREHAB may incur as a result of any breach of this clause 13 by you or your Personnel or Authorised User Person.
14
Relationship
14.1
Nothing in these Terms renders you a partner, legal representative, agent, joint venturer or franchisee of MEMOREHAB.
14.2
You must under no circumstances:
(a)
represent yourself as an agent or franchisee of MEMOREHAB for anypurpose;
(b)
make any representations on behalf of MEMOREHAB that are inconsistent with any representations authorised by MEMOREHAB in writing; or
(c)
commit MEMOREHAB to any contract.
14.3
You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to MEMOREHAB or its products and agree to comply with all applicable Laws and regulations while operating under these Terms. You further agree to comply with all applicable export and import laws and regulations, including UK embargo and sanctions regulations and prohibitions on export for certain enduses or to certain users.
15
Disclaimer
15.1
Nothing in these Terms excludes, restricts or modifies the application of any legislation which by law of any jurisdiction cannot be excluded, restricted or modified. Without limiting the foregoing, where you are considered a “consumer” within the meaning of the Australian Consumer Law (ACL), MEMOREHAB gives the. guarantees to the extent required by the ACL (Consumer Guarantees) with respect to the MEMOREHAB Products.
15.2
Subject to this clause 15.1 and any other rights and remedies (including under the Consumer Guarantees) you may have under applicable Law which cannot be excluded, to the extent permitted by law all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on these. Terms in connection with any MEMOREHAB Product or otherwise relating to the performance of its obligations under these Terms are excluded.
15.3
Without limiting the generality of clause 15.1 and to the extent permitted by law:
(a)
MEMOREHAB will not be liable to you for any direct, special, indirect or consequential loss of damage, any loss of profit or opportunity, any business interruption or loss of business information arising out of or relating to these Terms, including claims arising out of the use or not being able to use or any defect in the MEMOREHAB Product, malware or any claims arising out of any reliance on the content of the MEMOREHAB Product, whether at common law, under contract, tort (including negligence), in equity, pursuant to statue or otherwise; and
(b)
MEMOREHAB’s liability for any claim arising out of or about these Terms is limited, at its option, to the re-supply of the relevant goods or services or, where applicable, the payment of the cost of re-supplying the relevant goods. or services.
15.4
You acknowledge and agree that, to the extent permitted by Law (and without limiting the generality of clause 15.1), the MEMOREHAB Products are made available "as is," and MEMOREHAB makes no representation, warranty or guarantee:
(a)
that the MEMOREHAB Products will operate in combination with any other hardware, software, platform, or Your Material;
(b)
that the MEMOREHAB Products will meet your requirements or expectations;
(c)
that the MEMOREHAB Products, and information extracted from them, will be. accurate, free from defects, bugs, errors or omissions, or that any of Your Material input into the MEMOREHAB Products will not be lost or corrupted; or
(d)
in relation to non-infringement, title, fitness for a particular purpose, functionality, availability or merchantability.
15.5
MEMOREHAB uses reasonable endeavours to ensure that the MEMOREHAB Products are free of viruses or other harmful components but cannot guarantee they will be free from unknown viruses and other harmful components.
15.6
MEMOREHAB will not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside the reasonable control of MEMOREHAB.
16
Suspension
16.1
MEMOREHAB may modify or suspend the access to MEMOREHAB Products entirely or your and Authorised Users’ access to the MEMOREHAB Products, at any time. Any such modification or suspension will be to the minimum extent and for the shortest duration required to:
(a)
prevent or terminate an offending use of the MEMOREHAB Products;
(b)
prevent or resolve the emergency security issue, such as but not limited to a violation of this agreement or Privacy Policy where such valuation could disrupt the MEMOREHAB Products or other users of the MEMOREHAB Products, or an unauthorised third party access to the MEMOREHAB Products; or
(c)
comply with applicable Law.
16.2
If MEMOREHAB exercises its right under clause 16.1, MEMOREHAB has no liability to you or any of your Authorised Users for removing or deleting Your Material.
17
Force Majeure
17.1
A delay by a party in the performance of its obligations under these Terms is not deemed a default of these Terms to the extent that such delay is attributable to a Force Majeure Event and could not have been prevented or minimised by the non- performing party by means of the exercise of reasonable precautions or cannot reasonably be circumvented by the non-performing party in a commercially
reasonable manner.
17.2
The parties release each other from any liability for failure to perform their obligations under this agreement which results from a Force Majeure Event.
17.3
A party affected by a Force Majeure Event must immediately, on becoming aware of the occurrence of the event, notify the other party of the occurrence, its cause and the steps which the notifying party is taking to resume performance of its obligations under this agreement as soon as possible.
18
Termination
18.1
Each party may terminate the applicable subscription for the use of MEMOREHAB Products by notice if the other party breaches a material provision of these Terms and fails to remedy the breach within 14 days of notice from, or the other party breaches any provision of these Terms that is irremediable, or that party repeatedly breaches any provision of this Agreement. Instead of termination under this clause, we may, by giving written notice to you, permanently or temporarily suspend you for any definite or indefinite period to use the MEMOREHAB Products.
18.2
Notwithstanding clause 18.1,:
(a)
MEMOREHAB may terminate the applicable subscription at any time without notice if you engage in a material breach of these Terms, which includes:
(i)
any beach under Clause 13 (Intellectual Property), clause 15 (Disclaimer), and clause 9 (Your Material);
(ii)
subscription fees are due and unpaid;
(iii)
if, in MEMOREHAB’s reasonable opinion, you provided us with false and/or misleading information;
(iv)
if, in MEMOREHAB’s reasonable opinion, you misuse the MEMOREHAB Products for a purpose other than for which they are intended to beused for;
(v)
are in breach of the Privacy Act 1988 (including any of the Australian. Privacy Principles (APPs));
(vi)
refuse to carry out a request by us to verify the authenticity of any. AHPRA registration by any your Associated Health Care Providers;
(vii)
that a continued association with you or with any of your Authorised Persons would in our reasonable opinion materially adversely affect. our reputation or fidelity to our mission; or
(viii)
if MEMOREHAB has been put on notice about any dissatisfaction, complaint, proceeding or lawsuit against you or any of your Authorised Users arising in connection with your use of theMEMOREHAB Products.
(b)
MEMOREHAB may terminate the applicable subscription for the use of MEMOREHAB Products where reasonably necessary to protect MEMOREHAB’s legitimate commercial interests or at any other time for MEMOREHAB’s convenience, in MEMOREHAB’s absolute discretion.
18.3
If MEMOREHAB terminates the applicable subscription for the use of MEMOREHAB Products under clause 18.2(b), MEMOREHAB will provide you with at least one- month prior written notice.
18.4
Unless otherwise stipulated under these Terms and subject to paragraph (c), all rights and obligations of the parties cease to have effect immediately upon termination the applicable subscription for the use of MEMOREHAB Products except that termination will not affect:
(a)
the accrued rights and obligations of the parties at the date of termination. (including with respect to any outstanding or accrued fees under the Sign-Up Forms or the subscription fees for MEMOREHAB Products); and
(b)
the continued existence and validity of the rights and obligations of the parties under those clauses which are expressed to survive termination and any provisions of these Terms necessary for the interpretation or enforcement of these Terms.
(c)
Clause 13 (Intellectual Property), clause 15 (Disclaimer), and clause 9 (Your Material) which will survive termination of these Terms.
18.5
Upon termination of the applicable subscription for the use of MEMOREHAB Products:
(a)
MEMOREHAB reserves its right to cancel all Sign-Up Forms placed by you where such Sign-Up Forms have not been accepted by MEMOREHAB or have been accepted by MEMOREHAB but where you have not used any of the MEMOREHAB Products at the time of termination.
you must destroy all Confidential Information in your possession and certify destruction to MEMOREHAB’s reasonable satisfaction (unless MEMOREHAB requests that you return such materials to it).
(b)
18.6
In no case will any termination of the applicable subscription for the use of MEMOREHAB Products give rise to any liability by one party against the other party for refunds or damages. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
19
Confidentiality
19.1
Subject to clauses 19.2 and 19.3, each party must not disclose Confidential Information of the other party.
19.2
A party may only disclose Confidential Information of the other party:
(a)
to persons who control, or are controlled by, the party within the meaning of the Corporations Act, and the employees, professional advisors of such persons, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons, employees, legal advisors or consultants of such persons have a need to know such information in connection with these Terms;
(b)
in enforcing these Terms or in a proceeding arising out of or in connection with these Terms; or
(c)
to the extent required by Law or pursuant to a binding order of a government agency or court.
19.3
MEMOREHAB may disclose Confidential Information to the extent necessary in connection with a capital raising, financing, or transfer or divestiture of all or a portion of its business, or otherwise in connection with a merger, consolidation, change in control, reorganisation or liquidation of all or part of MEMOREHAB’s business, but will use reasonable efforts to minimise the scope of such disclosure.
20
GST
20.1
In this clause, the expressions Input Tax Credit, Supply, Supplier, Tax Invoice, Recipient and Taxable Supply have the meanings given to those expressions in theGST Act.
20.2
With the exception of any amount payable under this clause, unless otherwise expressly stated, all amounts stated to be payable in this document are exclusive ofGST.
20.3
If GST is imposed on any Supply made under or in accordance with this agreement, the Recipient of the Taxable Supply must pay to MEMOREHAB an additional amount equal to the GST payable on or for the Taxable Supply. Payment of the additional amount will be made at the same time as payment for the Taxable Supply is required to be made in accordance with this agreement, subject to the provision of a Tax Invoice.
20.4
If these Terms require a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(a)
the amount of the Reimbursable Expense less the Input Tax Credits (if any) to which the other party is entitled in respect of the Reimbursable Expense; and
(b)
if the other party’s recovery from the first party is a Taxable Supply, any GST payable in respect of that Supply.
21
Change of terms
21.1
MEMOREHAB reserves its right to amend these Terms at any time.
21.2
Your continued use of any MEMOREHAB Products constitutes your acceptance of such amendments to these Terms.
21.3
MEMOREHAB also uses reasonable efforts to notify you of these amendments through. communications using the MEMOREHAB Website or other forms of communication. You should familiarise yourself with the amended terms of these Terms and check for updates regularly.
21.4
The MEMOREHAB Products may be reviewed and updated from time to time. The MEMOREHAB Products are further described on the MEMOREHAB Website and the Sign-Up Form.
21.5
If you do not accept these Terms, including our policies (such as our Privacy Policy) or. any amendment we make to these Terms or such policies, then you must not continue to use MEMOREHAB Products.
22
General
22.1
You must not assign, transfer or novate, directly or indirectly, any of the rights or obligations under this Terms without our prior written consent (such consent not to be unreasonably withheld). Any attempt to make any such assignment without our consent shall be null and void. We may assign, transfer or novate these Terms without your consent. We may at any time assign, novate or otherwise dispose of or deal with our rights and obligations under these Terms by notice in writing to you and you give us prospective authority to a future assignment and/or novation to be effectuated by us unilaterally.
22.2
Each party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in these Terms.
22.3
Neither these Terms nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
22.4
A right created by these Terms cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
22.5
Each party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in these Terms.
22.6
If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses), which will continue in full force and effect.
22.7
The expiration or termination of these Terms does not affect any right that has accrued to a party before the expiration or Termination Date.
22.8
These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument.
22.9
Each party must pay its own legal costs and disbursements in connection with the negotiation, preparation, execution and carrying into effect of these Terms.
22.10
These Terms and, to the extent permitted by law, all related matters, including non- contractual matters, are governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters, each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction thereand waives any right to object to the venue on any ground.
23
Definitions and interpretations
23.1
Definitions
In these Terms, unless the context requires:
Associated Health Care Provider or AHCP means a duly AHPRA registered health care provider (e.g. neuropsychologist, psychologist, and occupational therapist) in good standing who is engaged by you as an employee or contractor and therefore part of your organisation or a student under the supervision of an AHCP.
Authorised User has the meaning given to it under clause 7.
Claims means claims, demands, suits, actions, damages, liabilities, losses, penalties, costs and expenses, proceedings, including any attorney and court expenses.
Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into these Terms. Specifically, MEMOREHAB’s Confidential Information includes any performance information relating to the MEMOREHAB Products will be deemed Confidential Information. of MEMOREHAB without any marking or further designation, the design, specification and content of the MEMOREHAB Products including any source codes, MEMOREHAB’s personnel information, operational and other policies, project documentation, proposals, or other development documentation, including any specification, or business strategies, and the terms of these Terms, including the fees and information relating to MEMOREHAB’s pricing. Confidential Information does not include information which is:
    i.
already known to the other party; or
   ii. 
received by the other party from a third party not under a duty of confidence; or
iii. 
independently developed by the other party.
Developed Intellectual Property Property means any Intellectual Property Rights arising from any work done by or for MEMOREHAB on your behalf in connection with the MEMOREHAB Products, including the development of any portals used by you to access the MEMOREHABProducts.
Enriched Material means any material including Your Material which has been modified and/or enriched with additional information by users of the MEMOREHAB Products.
Force Majeure Event means any event beyond the control of a party which the party could not reasonably have foreseen and which makes it impossible for the party to perform this agreement, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, orders of acts of civil or military authorities, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, embargoes and other governmental actions or regulations which prevent or prohibit either party from performing the obligations under this agreement, but does not include, for example, economic problems such as insufficient funds or substantial price rises, ordinarily foreseeable events like bad weather or accidents due to miscalculations.
Initial Term has the meaning given to it under clause 3.2.
Intellectual Property Rights means any intellectual and industrial property rights throughout the world, including in respect of copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks, designs and circuit layouts, whether or not now existing and whether or not registered or registrable, and includes any right to apply for registration of such rights and includes all renewals and extensions and any other intellectual property rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967, and any trade dress, get-up, design, look, feel and functionality of the MEMOREHAB Websites and MEMOREHAB Products, MEMOREHAB’s internet domain name registrations, MEMOREHAB’s trade secrets and know-how.
Law means all applicable laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
MEMOREHAB means MEMO Memory Rehabilitation Pty Ltd ACN 653957834.
MEMOREHAB Data means any material and/or data derived by MEMOREHAB from Your Material during operation and usage of all aspects of the MEMOREHAB Products.
MEMOREHAB Products means the hosted products and services offered by MEMOREHAB as described on the MEMOREHAB Websites and the Sign-Up Form (in each case as amended from time to time), accessible by login through the MEMOREHAB Websites.
MEMOREHAB Websites means memorehab.com.au and app.memorehab.net, and any and all associated sites linked to memorehab.com.au and app.memorehab.net (in each case asamended from time to time).
Participant means a AHCP’s patient or any other person that participates in a rehabilitation program using a MEMOREHAB Product (for example if you are university or other research institution who has subscribed to these Terms to conduct a research project with Participants).
Participant means employees, officers, directors, agents, and contractors.
Privacy Policy means the privacy policy available on the MEMOREHAB website as amended from time to time.
Renewal Term has the meaning given to it under clause 3.3.
Sign-Up Form means the online Sign-Up Form, under which you can place, or accept, an order for one or more MEMOREHAB Products, subject to MEMOREHAB’s acceptance of suchSign-Up Form.
Territory means Australian or such other jurisdiction as described in the Sign-Up Form.
Termination Date means the date that these Terms are terminated.
Term  has the meaning given to it under clause 3.5.
Terms  means the terms and conditions of use outlined here as amended from time to time.
You  means the person that has accepted these Terms, and Your has a corresponding meaning.
Your Material  means any and all data or other material made available to us in connection with any MEMOREHAB Products or otherwise in connection with the use of the MEMOREHAB Websites, by, on your behalf, or at your request, by an Authorised User.
23.2
Interpretation
In these Terms, unless the context otherwise requires:
(a)
a reference to these Terms or any other document includes the document, as novated, amended, supplemented, varied or replaced from time to time;
(b)
words denoting any gender include all genders;
(c)
“includes”, “including” and similar expressions are not words of limitation;
(d)
where any word or phrase is defined in these Terms, any other grammatical form of that word or phrase will have a corresponding meaning;
(e)
a reference to these Terms, a document or another instrument includes any variation or replacement of either of them;
(f)
a reference to a statute, ordinance, code or other law includes regulationsand other instruments under it and consolidations, amendments, re- enactments or replacements of any of them;
(g)
the singular includes the plural and vice versa;
(h)
a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separatelegal entity.
(i)
a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;
(j)
if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive to that day; and
(k)
a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
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