Terms of Use – Bp Cloud

Customer Agreements

Best Practice Cloud Product Terms

Effective June 2024

These terms (“Terms”), govern your Subscription and your access to and use of Best Practice Software Pty Ltd (“Best Practice”) Cloud Products.

By subscribing to and accessing or using the Cloud Products, you acknowledge that you have read and understood these Terms, that you accept all the terms and conditions, without the need for any further indication of acceptance on your part (such as by signature, or other means of electronic acceptance) and agree to be legally bound by them. Where you are acting on behalf of your employer or such entity or accessing the Cloud Products on their behalf, you represent and warrant that you have full legal authority to agree to, and bind your employer or such entity to, these Terms and your employer or such entity must ensure that all officers, employees, agents and contractors of your employer or such entity who access and/or use the Cloud Products, including each End User, also comply with these Terms.

These Terms take effect on and from the date that you create a Best Practice ID in accordance with clause 5 of these Terms, or the date you accept these Terms by clicking any agree button indicating your acceptance of these Terms, or through your use of the Cloud Products, whichever is earlier.

1. Changes to these Terms

Best Practice may modify these Terms from time to time, by posting the modified Terms on the Bp Website at Best Practice Software – Practice Management Software (bpsoftware.net) (or another URL as notified by Best Practice from time to time) and/or by email notification to you. Any such change to these Terms will not apply retroactively, and any changes made to the Terms will take effect proactively, from the date of the posting or email notification, whichever is the earlier. You acknowledge and agree that you are responsible for reviewing these Terms from time to time to ensure that you are familiar with, have read and understood the current Terms.

2. Additional Terms

2.1 Some Cloud Products, including Additional Services, may be subject to additional terms and conditions specific to those services and which are set out in the Product-Specific Terms or as otherwise notified to you from time to time by Best Practice (“Additional Terms”). The Additional Terms are incorporated into and form part of these Terms. The Additional Terms may also be changed pursuant to clause 1 above (as if references in that clause to Terms were to the Additional Terms). By accessing or using a Cloud Product or Additional Service covered by Additional Terms including, without limitation, any Product-Specific Terms, you also agree to those Additional Terms.

2.2 During the Subscription Period, Best Practice agrees to provide Support Services to you in connection with your use of the Cloud Products in accordance with Best Practice’s Support Policy.

2.3 Best Practice’s Privacy Policy at Privacy Statement – Bp Software explains how we deal with personal information that we collect from you and your End Users in the course of your access to and use of the Cloud Products. You consent to, and you are solely responsible for obtaining from each End User their consent to, the collection, use, disclosure and other handling of any personal information that we collect from you and your End Users in accordance with that Privacy Policy and Privacy Laws.

3. Order

3.1 You may order Cloud Products from time to time through Best Practice Sales or online on Best Practice Marketplace.

3.2 Upon acceptance of the Order by Best Practice, the terms and conditions (if any) of the Order shall form part of these Terms.

4. Precedence of documents

If there is any conflict or inconsistency between any provisions or parts of these Terms, then, for the purpose of resolving such conflict or inconsistency, these Terms shall be interpreted and construed in following order of priority (from lowest to highest):

a) clauses 1 to 21 of these Terms;

b) the Additional Terms; and

c) the Order.

5. Best Practice ID (“BpID”)

5.1 You will need to create an account with a BpID by signing up through the Bp Website (or another URL as notified by Best Practice from time to time) to be able to access the Cloud Products.

5.2 Except to the extent required by law, you must not transfer your BpID, and/or the account attached to it, to another person.

5.3 You are solely responsible for keeping your account details and password confidential.

5.4 Best Practice shall provide you with details of End User accounts and credentials, including any individual BpID for each End User account, related to your account by notification through the account associated with your BpID or through such other reasonable means.

6. Cloud Products Subscription

6.1 Subject to your compliance with these Terms, Best Practice shall make available the Cloud Products, specified in each Order, for access and use in accordance with the Documentation for the Subscription Period (“Subscription”).

6.2 Your Subscription is solely for your own internal business purposes or personal use and for the term of your Subscription Period.

6.3 Except as expressly permitted under these Terms (or as reasonably contemplated by the normal use of the Cloud Products) or expressly as authorised under Applicable Laws, you must not doing any of the following:

a) license, sub-license, make available for access or use, sell, re-sell, distribute or otherwise commercially exploit the whole or any part of the Cloud Products;

b) modify, copy, reproduce, republish, transmit or distribute or make derivative works based on the whole or any part of the Cloud Products;

c) reverse engineer, reverse compile or otherwise access Cloud Products in order to build a competitive product or service; or

d) attempt to do any of the foregoing, or procure, permit or assist any other person to do, or to attempt to do, any of the foregoing.

6.4 You acknowledge and agree as follows:

a) your Subscription may be subject to restrictions on the type and/or number of End Users permitted to use the Cloud Products on a named user basis as specified in the applicable Order. End Users must not share their credentials, including their individual BpID, with any other person and each End User account may not be transferred to any other person without Best Practice’s prior written consent. You may increase the number of End Users covered by your Subscription by modifying your Subscription in accordance with clause 1;

b) Best Practice is solely responsible for maintaining the architecture of the Cloud Products, including all relevant APIs required to access certain functionality through the Cloud Products;

c) you and each End User, are solely responsible for:

1) ensuring that your systems and networks are appropriately maintained and configured in order to access and to use the Cloud Products, including complying with the requirements for the Supported Operating Environment;

2) obtaining and maintaining all hardware, software and network connectivity required for access to the Cloud Products; and

3) the accuracy, quality and integrity of the Customer Data inputted by, or on your behalf or End Users into the Cloud Products;

d) in accessing and using the Cloud Products, you represent and warrant that your and your End User’s use of the Cloud Products does not and will not violate any Applicable Laws; and

e) you are solely responsible for ensuring that all End Users keep their user credentials for the Cloud Products strictly confidential, do not share such information with any unauthorised person. You are responsible for all acts, or any failures or delays to act, on End User accounts, and you agree to immediately notify Best Practice of any unauthorised use or access through any End User accounts. To the maximum extent permissible by law, Best Practice excludes any liability for any loss or damage arising out of or in connection with unauthorised access to or use of your or an End User’s account.

6.5 Without limiting any other provision of these Terms, in accessing and/or using the Cloud Products, you must not and must ensure that your End Users must not:

a) use the Cloud Products for any purpose other than as expressly permitted by these Terms;

b) use the Cloud Products in a manner that is illegal or fraudulent or facilitates any illegal or fraudulent activity;

c) use the Cloud Products in a manner that may interfere with, disrupt or create undue or unreasonable burden on the Cloud Products or on the servers and networks that host the Cloud Products;

d) impersonate or misrepresent yourself as another person;

e) access or use the Cloud Products with the assistance of any automated scripting tool or software, other than as provided or expressly permitted by Best Practice;

f) act in a manner that may diminish or adversely impact Best Practice’s reputation;

g) send impermissible communications not expressly permitted under these Terms such as bulk messaging, auto-messaging or the like (except as provided as part of any functionality of the Cloud Products);

h) post or otherwise transmit materials that contains any malicious software or other programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

i) attempt to penetrate, breach the security or circumvent any access or use restrictions of the Cloud Products, introduce any Harmful Code into the Cloud Products, or to otherwise interfere with or disrupt the normal functions and performance of the Cloud Products; or

j) attempt to do any of the foregoing, or procure, permit or assist any other person to do, or attempt to do, any of the foregoing.

6.6 You acknowledge and agree that Best Practice may alter or discontinue any feature of any Cloud Products at any time in order to provide improved customer experience. To the extent possible, any modifications to features of the Cloud Products will take effect upon renewal of your Subscription and the commencement of the next Subscription Period.

6.7 Some modifications to Cloud Products may need to be implemented during your then current Subscription Period. In the event you object to the modifications affecting your use of the Cloud Products, you may, as your sole and exclusive remedy to the extent permitted by law, terminate your Subscription by written notice to Best Practice in accordance with clause 2..

6.8 Best Practice reserves the right to, but is under no obligation to, monitor your and your End User’s use of the Cloud Products, and suspend or terminate your access to or use of some or all of Cloud Products (or parts of the Cloud Products), if you or any End User engages in activities that Best Practice is reasonably of the opinion do not comply with your obligations in clause 6. To the maximum extent permitted by law, Best Practice is not liable or responsible to you for any loss or damage of any kind suffered or incurred as a result of Best Practice’s exercise of its rights under this clause.

7. Termination

7.1 Termination for cause
Either party may terminate these Terms and each Subscription under these Terms immediately by written notice to the other party if:

a) (insolvency) the other party is or becomes Insolvent;

b) (irremediable breach) the other party materially breaches a provision of these Terms and such breach is not capable of being remedied;

c) (unremedied breach) the other party materially breaches a provision of these Terms and does not remedy the breach within fourteen (14) days of being notified in writing of it.

7.2 Consequences of termination

a) Upon termination or expiration of these Terms, all your rights, and each End User to access and to use, the Cloud Products and all Subscriptions shall immediately come to an end without the need for further notice.

b) Any termination or expiration of these Terms will be without prejudice to the rights of each party against any other in respect of anything done or omitted to be done under these Terms prior to the effective date of such termination or expiration (as the case may be).

c) For a period of thirty (30) days after the expiration or termination of these Terms for any reason, Best Practice will:

1) be entitled to retain and will not take any deliberate action to erase any of the Customer Data stored on the Cloud Products; and

2) provided that there are no outstanding Subscription Fees, Additional Charges or other amounts owed to Best Practice under these Terms, provide reasonable assistance to you to retrieve your Customer Data stored on the Cloud Products, such assistance to be at an Additional Charge.

d) Notwithstanding the foregoing, but subject to the terms of Best Practice’s Privacy Policy, Best Practice reserves the right to retain or store any Customer Data following termination or expiration of these Terms and your Subscription, including to use such Customer Data (on a de-identified basis) to improve or further develop its Cloud Products.

7.3 Survival

Clauses 7.2, 11, 12.1(a), 12.1(b), 12.2, 13, 15, 16, 17, 18, 20 and 21 shall survive termination or expiration of these Terms.

8. Cancellation

8.1 You may cancel a Subscription at any time through your account using the BpID associated with that account and your Subscription. Subject to clause 2, cancellation of your Subscription shall be effective at the end of your then current Subscription Period and you shall remain liable for any Fees which accrue up to that date.

8.2 You may cancel a Subscription by written notice to Best Practice if you do not agree to any modifications to the Cloud Products covered by that Subscription made by Best Practice under clause 7, in which case Best Practice will provide a pro rata refund, within thirty (30) days of your cancellation, of your Subscription Fee to the remaining portion of your Subscription Period for that Subscription.

8.3 You acknowledge that Best Practice may increase the Subscription Fee for any Subscription at any time by publishing such Subscription Fee increase on the Bp Website. Where you have an ongoing Subscription, Best Practice shall provide written notice to you of such Subscription Fee increase no less than one (1) month prior to the commencement of the Subscription Period from which the Subscription Fee increase will take effect. By continuing to use the Cloud Products after such notice, you shall be deemed to have agreed to such Subscription Fee increase.

8.4 Where you are trialling the Cloud Products, you acknowledge that you are responsible for cancelling your trial Subscription before the end of your applicable trial period. In the event you continue to use the Cloud Products after the end of your trial Subscription, and you have signed up for a Subscription using an Order, you will be deemed to have agreed to a Subscription as specified in the Order and liable for payment of the corresponding Subscription Fee and otherwise complying with these Terms as they apply to that Subscription.

9. Renewals and changes to your Subscription

9.1 Your Subscription continues for the Subscription Period. Unless cancelled by you in accordance with clause 1, your Subscription will automatically renew for a further Subscription Period. Best Practice shall notify you of renewal of your Subscription prior to the end of your current Subscription Period, where such period is for twelve (12) months or longer. Where your Subscription Period is less than twelve (12) months, your Subscription will be renewed without notice to you (subject always to your right to terminate in accordance with clause 8.1).

9.2 You may modify your Subscription at any time during a Subscription Period to add additional Cloud Products and/or increase the number of End Users. You acknowledge and agree that such change shall be subject to a prorated increase to the Subscription Fee for the remainder of the then current Subscription Period. The additional Cloud Products and/or additional End Users and corresponding increase in Subscription Fee shall form part of your Subscription and apply to each following Subscription Period.

9.3 You may modify your Subscription at any time to remove or reduce the Cloud Products and/or End Users, however, such change (including any change in Subscription Fees) shall only take effect from the next Subscription Period.

10. Payments

10.1 You are responsible for providing Best Practice with an up-to-date payment method as nominated in your account and otherwise ensuring that payment of your Subscription Fees and any other amounts are paid by the applicable payment due dates.

10.2 You hereby authorise Best Practice to process recurring payments for your Subscription Fees by the payment method notified in your Order or as nominated in your account relating to your Subscription, until your Subscription is cancelled or terminated. Where you nominate any credit or debit card or direct debit payment methods, you authorise Best Practice to charge your designated credit or debit card or bank account in advance of the applicable Subscription Period. The date when payment will be charged will be on the date of commencement of the next Subscription Period.

10.3 If any payment is unsuccessful, returned or otherwise remains outstanding at the commencement of a Subscription Period, Best Practice may suspend or cancel your Subscription without further notice.

10.4 By providing Best Practice with a payment method, you represent that you are authorised to use the payment method and information you provide in respect of that payment method is up-to-date, true and accurate.

11. GST

11.1 Unless otherwise expressly stated, all Fees are exclusive of GST.

11.2 To the extent that a Taxable Supply is made by Best Practice to you, the consideration payable by you under these Terms represents the value of the Taxable Supply for which payment is to be made.

11.3 are liable to pay for the Taxable Supply, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of that Taxable Supply.

11.4 Terms defined in the GST Law – In this clause, expressions have the same meaning as they have in the GST Law.

12. Customer Data

12.1 Ownership of Customer Data

a) As between Best Practice and you, all Customer Data shall remain, at all times, your property. You retain all right, title and interest in and to the Customer Data in the form submitted to the Cloud Products.

b) You irrevocably grant to Best Practice and its affiliates, officers, employees, agents and contractors, a non-exclusive, worldwide licence (including the right to grant sublicences) to reproduce, access and use the Customer Data for the purpose of Best Practice providing and maintaining the Cloud Products, providing the Support Services and performing its obligations under these Terms.

c) You may obtain an export of the Customer Data from the Cloud Products at any time during your Subscription Period by using the existing features and functionality of the Cloud Products, at no Additional Charge.

12.2 Obligations

a) You acknowledge that you remain solely responsible for the content of the Customer Data entered by you and your End Users.

b) You represent and warrant to Best Practice that:

1) you have all title, right or licence to provide the Customer Data to Best Practice for use with the Cloud Products;

2) the Customer Data is accurate and correct; and

3) you have complied with all applicable Privacy Laws to allow for the provision and use of the Customer Data with the Cloud Products as contemplated under these Terms.

c) You may make changes to Customer Data using the features and functionality available through the Cloud Products. Best Practice will not make changes to Customer Data, except as expressly agreed in writing with you and subject to any Additional Charge payable by you, provided that Best Practice shall not be liable, and assumes no liability, for any changes to Customer Data made by Best Practice in complying with your directions.

12.3 Limitation of liability for Customer Data

a) While Best Practice shall maintain commercially reasonable technical and organisational security measures to ensure the security and confidentiality of the Customer Data, you acknowledge and agree that you are solely responsible for retaining and ensuring that you maintain backups of all Customer Data, including for restoration in the case of any loss or damage to Customer Data entered, processed or stored on or by the Cloud Products.

b) Subject to clause 3(c), you acknowledge and agree that, to the maximum extent permitted by law, Best Practice is not liable to you or to any End User for any loss or damage of any kind (including Consequential Loss) suffered or incurred by you or any End User resulting from or in connection with loss of or damage to Customer Data.

c) The limitation of liability in clause 3(b) does not apply to the extent such loss of or damage to Customer Data is caused by Best Practice’s breach of its obligations to comply with the Privacy Laws under clause 13.1.

13. Data Privacy

13.1 Compliance with Privacy Laws.
Each party must comply with their respective obligations under the Privacy Laws.

13.2 You acknowledge and agree that:

a) the you and each End User, are solely responsible for determining the nature, scope, origin and means by which any personal information is collected, used, disclosed or otherwise handled and which forms part of the Customer Data;

b) Best Practice has no responsibility or control over the nature, scope, or origin of, or the means by which you collect, use, disclose or otherwise handle such personal information; and

c) you are solely responsible for obtaining, and represent and warrant to Best Practice that you have obtained or will obtain prior to collection or handling of any such personal information, all necessary consents, licences and approvals for transfer or disclosure of such personal information to Best Practice, and the use and disclosure by Best Practice of such personal information in the course of performing its obligations under these Terms.

13.3 Disclosure of Customer Data to third persons.
You acknowledge that:

a) you, and End Users, may utilise certain functionality of the Cloud Products, Third Party Services and/or Third Party Software to conduct transactions or make communications that involve Customer Data being transferred, disclosed, provided or otherwise transmitted to governmental bodies, general practices, third party providers, patients to whom the Customer Data relates and other persons from time to time (“Data Recipients”);

b) you are solely responsible for obtaining, and represents and warrants to Best Practice that you have obtained or will obtain prior to collection or handling of any such personal information, all necessary consents, licences and approvals for transfer, disclosure, provision or transmission of such Customer Data to those Data Recipients; and

c) if any person to whom the Customer Data relates requests that Best Practice provide them with information relating to access to their personal information including the use or disclosure of any personal information relating to them, or to make changes to such personal information, then Best Practice will promptly notify you of such request (unless prohibited by the Privacy Laws) and otherwise will comply with the request as required by Privacy Laws.

13.4 Notification of Data Breach

a) Upon Best Practice becoming aware of any Data Breach or a Loss of Data affecting your Customer Data, Best Practice shall:

1) except to the extent prohibited by Privacy Laws, notify you of the Data Breach or Loss of Data;

2) comply with any reasonable request by you to co-operate with and assist you in investigating whether a Data Breach or Loss of Data has occurred and the circumstances surrounding that Data Breach or Loss of Data;

3) assist, to the extent reasonably commercially practicable, with any remedial action to reduce the risk of serious harm from the Data Breach or Loss of Data, as reasonably directed by you; and

4) assist you in preventing any continued Loss of Data, as reasonably directed by you.

b) You acknowledge and agree that you are solely responsible for determining whether a Data Breach or Loss of Data affecting your Customer Data requires notification to a regulatory agency in accordance with Privacy Laws.

c) Unless required by law, Best Practice shall not notify any government agency the existence or circumstances surrounding any Data Breach or Loss of Data without your prior written approval (not to be unreasonably withheld or delayed).

d) Nothing in these Terms restricts Best Practice from fulfilling any of its legal obligations in relation to the Data Breach or Loss of Data under Privacy Laws.

e) Best Practice may charge an Additional Charge to you for any assistance provided to you under this clause.

14. Third Party Services and Third Party Software

14.1 You acknowledge and agree that the Cloud Products may from time to time, include functionality that provides capacity for you, at your option, to connect with certain Third Party Services and/or the capacity to access, use analytics techniques to improve Cloud Products and to use Third Party Software via APIs made available by Best Practice or by a Third Party through the Cloud Products. Nothing in these Terms shall be construed as any representation or warranty that any Third Party Service or Third Party Software will be made available through or with the use of the Cloud Products.

14.2 You acknowledge and agree that, where you, or your End Users, access any Third Party Service and/or Third Party Software:

a) such access to and use of the Third Party Service and/or Third Party Software is entirely at the your, and your End Users’, own risk;

b) Best Practice makes no representation or warranty that access to and use of the Third Party Service and/or Third Party Software will be without error or interruption or will continue to be available for any period of time and you acknowledge and agree that Best Practice, and/or any Third Party, may make changes to or remove access to Third Party Service and/or Third Party Software at any time;

c) you are solely responsible for ensuring you comply with any terms and conditions of service relating to the Third Party Service and/or Third Party Software, including payment of any applicable fees for using the Third Party Service and/or Third Party Software;

d) except to the extent arising due to a breach of Best Practice’s obligations under clause 2(e), to the maximum extent permitted by law, Best Practice is not liable to you or your End Users, and Best Practice assumes no responsibility to you or your End Users for any loss or damage of any kind (including Consequential Loss) which you or any of your End Users suffers or incurs as a result of access to and use of the Third Party Service and/or Third Party Software; and

e) where you or your End Users access any Third Party Service and/or Third Party Software via APIs developed and made available by Best Practice, Best Practice shall take all reasonable commercial measures to protect any authentication credentials for any Third Party Service and/or Third Party Software obtained through or stored in the Cloud Products via these APIs made available by Best Practice.

15. Limitation of Liability

15.1 To the fullest extent permitted by law, each party’s liability for Consequential Loss is excluded.

15.2 To the extent permitted by law and subject to clause 3, the total aggregate liability of either party under or in connection with these Terms, including under any indemnity, is limited to an amount equal to the total amount of amounts paid by you in the twelve (12) months immediately preceding the date on which the event giving rise to the liability first arises.

15.3 The limitation of liability in clause 2 does not apply to:

a) your liability to pay Subscription Fees, Additional Charges, other Fees or other amounts to Best Practice under or in connection with these Terms;

b) any personal injury or death of any person or the loss of, damage to or loss of use of, any real or tangible property arising from or in connection with a breach of these Terms; or

c) any breach by a party, its officers, employees, agents and contractors their privacy obligations under clause 13 or confidentiality obligations under clause 18.

16. Intellectual Property Rights

16.1 You acknowledge and agree that all Intellectual Property Rights in and to the Cloud Products and the Bp Trade Marks (“Bp IP”) remain the sole property of Best Practice and that there is no transfer of title or ownership to you of the whole or any part of the Intellectual Property Rights in and to the Bp IP.

16.2 Non-contest
You agree to not, at any time:

a) assert any right to or over any Intellectual Property Rights in the Bp IP in any manner inconsistent with your rights under these Terms;

b) take, appropriate or represent any and all such Intellectual Property Rights in the Bp IP as your own;

c) take any action which would or might invalidate, challenge, oppose or otherwise put in dispute Best Practice’s title to the Intellectual Property Rights in the Bp IP; or

d) cause, permit or assist any other person directly or indirectly to do any of the above acts.

16.3 Marks and notices
You must not alter, obscure, remove or otherwise interfere with any of the Bp Trade Marks or any other trade marks (whether registered or unregistered), trade names, markings or notices affixed to or contained in the Cloud Products or Documentation and you must ensure that all such Bp Trade Marks or other trade marks, trade names, markings and notices are reproduced in full on any permitted copies by you.

16.4 IP Indemnification

a) Subject to your compliance with clause 4(b), Best Practice agrees to indemnify you from and against all loss or damage suffered or incurred by you as a result of any claim made that the use of Cloud Products infringes any copyright or trade secret of a third party or in connection with any final judgement in proceedings that determine that the use of the Cloud Products infringes any patent of a third party.

b) You agree to:

1) promptly notify Best Practice in writing of the claim of the infringement or proceedings;

2) permit Best Practice to fully control the defence and any settlement of the claim or proceedings; and

3) cooperate (at your own cost) fully in the defence of the claim or proceedings as reasonably requested by Best Practice.

c) Best Practice’s liability to indemnify you under clause 4(a) shall not apply to the extent that any claim or proceeding arises from:

1) your use and access of the Cloud Products in combination by any means (including, without limitation, with any Third Party Service and/or Third Party Software) or in any manner not specifically approved by Best Practice or contemplated by these Terms; or

2) any access to, use of or other dealing by you with the Cloud Products other than in accordance with the Documentation and the provisions of these Terms.

2) you fail to comply with your obligations in this clause 4 and such failure prejudices the ability of Best Practice to defend the claim or proceedings.

17. Warranties and disclaimers

17.1 Each party represents and warrants that:

a) it has the right to enter into these Terms;

b) neither the entering into these Terms nor the performance by it of its obligations will cause it to be in breach of any agreement to which it is a party or is subject; and

c) it has all rights, title, interests, and licences to lawfully perform its obligations under these Terms.

17.2 To the maximum extent permitted by law, Best Practice makes no representation or warranty that access to and use of the Cloud Products will be without error or interruption or will continue to be available. Best Practice hereby disclaims any and all liability for any delays, interruptions, service failures or other reasons related to internet connectivity or other systems outside its reasonable control.

18. Confidentiality

18.1 Confidentiality obligations

a) Each Party agrees to ensure that the Confidential Information of the other party (“Disclosing Party”) is kept confidential.

b) A party who receives the Disclosing Party’s Confidential Information (“Receiving Party”) must not:

1) directly or indirectly divulge or communicate or otherwise disclose the Confidential Information of the Disclosing Party, in whole or part, to any third party; or

2) use any of the Confidential Information of the Disclosing Party for any purpose other than exercising its rights or fulfilling its obligations under these Terms and, in the case of Best Practice, providing and maintaining the Cloud Products and providing the Support Services, without the express prior written consent of the Disclosing Party.

c) A Receiving Party must:

1) take all precautions that are reasonably necessary to prevent any unauthorised disclosure of the Disclosing Party’s Confidential Information to third parties or unauthorised use of such Confidential Information; and

2) inform the Disclosing Party of any suspected or actual unauthorised disclosure or use of such Confidential Information.

d) A Receiving Party will not be in breach of its obligations with respect to use or disclosure of the Disclosing Party’s Confidential Information if it uses or discloses information that:

1) is, or subsequently enters, the public domain, other than through a breach by it of its obligations under this clause;

2) is required to be disclosed by statute, court order or a person acting under the authority of statute or such order;

3) was developed independently by it, without the use of any of the Disclosing Party’s Confidential Information; or

4) was provided to it by a third party who was not subject to any obligation or duty of confidentiality at the time it was provided to the Receiving Party.

19. Subcontracting

19.1 You acknowledge and agree that Best Practice may subcontract the performance of these Terms or any part of these Terms.

19.2 If Best Practice subcontracts the performance of any obligations under these Terms:

a) Best Practice shall remain principally liable to you for the performance of those obligations; and

b) Best Practice must ensure that the subcontractor is under binding and enforceable contractual obligations to Best Practice equivalent to those provided under clauses 13 and 18 of these Terms.

20. General Provisions

20.1 Notices

a) All notices given under these Terms must be in writing, in English and sent to:

1) in the case of you, by post to your postal address or by email to your nominated email address in your account associated with your BpID; and

2) in the case of Best Practice, by post to Best Practice’s registered office at 86 Woongarra Street, Bundaberg Queensland 4670 or as updated from time to time.

b) Notices shall be deemed to have been received two (2) business days after the posting. Any notice sent by email or by other electronic means shall be deemed received on the day of sending unless the sender receives any notification within two (2) hours of sending that the notice was not or was unable to be sent.

20.2 Dispute Resolution

a) If a dispute arises, either party may give written notice of the dispute to the chief executive officer (or similar position) of the other party for resolution. The notice must identify the dispute concerned and the provisions of these Terms that are relevant to the dispute.

b) The chief executive officer (or their nominated representatives) must consult and negotiate with each other. If the parties do not resolve the dispute mutually within forty five (45) days of the notice referred to in clause 2(a), either party may pursue any other relief as may be available under these Terms.

c) Neither party must commence court proceedings (except proceedings seeking relief on an urgent interlocutory or declaratory basis) in respect of a dispute unless it has first complied with this clause 2.

d) Notwithstanding the existence of a dispute:

1) each party must, so far as it is reasonably practicable, continue to perform and comply with its obligations under these Terms to the extent that such obligations are not the subject of that dispute; and

2) the parties are not precluded by this clause 2. from exercising their rights of termination under these Terms.

20.3 Governing law and jurisdiction
These Terms will be governed by the law of the State of Queensland, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Queensland and the division of the Federal Court of Australia in that jurisdiction, and the courts of appeal from them. No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.

20.4 Force Majeure
Each obligation of a party, other than the obligation to pay money, will be suspended during the time and to the extent that the party is prevented from or delayed in complying with that obligation which are beyond the reasonable control due to Force Majeure.

20.5 Assignment
Neither party may assign, novate, encumber or otherwise deal in any way with any or all of its rights and obligations under these Terms without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.

20.6 General Relationship

a) The relationship between the parties is that of independent contractors and these Terms does not constitute, and shall not be interpreted as, an agency, partnership or joint venture between the parties.

b) Neither party must represent that it has the authority to act on behalf of the other party in the capacity as a partner or agent, or that either party is a joint venturer, employer or fiduciary of the other.

21. Definitions

Additional Charge means a charge in accordance with Best Practice’s standard rates from time to time.

Additional Services means other services related to Cloud Products Best Practice provides to you.

Additional Terms has the meaning given to that term in clause 2.1.

API means application programming interface.

Applicable Laws means all laws, regulations, proclamations, ordinances, by-laws, mandatory codes of conduct and mandatory standards which are applicable in Australia or any other jurisdiction in which the Customer accesses or uses the Best Practice products.

Bp IP has the meaning given to that term in clause 16.1.

Bp Trade Marks means the trade marks of Best Practice used in relation to the Cloud Products and which may be set out in the Documentation.

Bp Website means the website of Best Practice at https://bpsoftware.net/ (or another URL as notified by Best Practice from time to time) that includes the Best Practice Marketplace.

Confidential Information means the confidential information of a party which relates to the subject matter of these Terms and includes:

a) any information relating to the design, specification and content of the Cloud Products (including, without limitation, all Documentation);

b) in the case of you, information relating to its personnel, policies, customers, suppliers, product development and marketing plans and business strategies; and

c) in the case of both parties, the terms and conditions of these Terms.

Cloud Products means the hosted or cloud based solutions developed, owned and maintained by Best Practice and made available through the Bp Website.

Consequential Loss means:

a) indirect loss or damage;
b) a loss of opportunity or goodwill;
c) a loss of revenue;
d) a loss of profits;
e) a loss of anticipated savings or business;
f) a loss or corruption of data;

and any costs or expenses incurred in connection with any of the foregoing.

Customer Data means data owned or supplied by you to which Best Practice is provided access pursuant to these Terms or data which may otherwise be processed through the Cloud Products on your behalf pursuant to these Terms.

Data Breach means unauthorised access to, or unauthorised disclosure of, Customer Data.

Documentation means our standard published documentation for the Cloud Products as amended from time to time.

End User means a user employed or authorised by you to access and to use the Cloud Products.

Fees means any fee or charge payable under these Terms and includes, for the avoidance of doubt, all Subscription Fees and Additional Charges.

a) Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or to perform on time an obligation under these Terms. Such circumstances shall include (but not limited to): acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, pandemics, epidemics and any natural disaster;

b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and

c) strikes

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other act imposing a goods and services tax in Australia.

Harmful Code means any computer virus, Trojan, worm or other computer code that, directly or indirectly, is harmful or disabling or which assists in or enables unauthorised access to or corruption of data.

Insolvent means, in relation to a person, when the person:

a) is the subject of an event described in sections 459C(2) (a) to (f) or section 585 of the Corporations Act 2001 (Cth) (or it makes a statement from which another party to these Terms may reasonably deduce it is so subject);

b) is an insolvent under administration or suffers the appointment of a controller, administrator, liquidator or provisional liquidator as those terms are defined in section 9 of the Corporations Act 2001 (Cth);

c) is dissolved, other than to carry out an amalgamation or reconstruction while solvent;

d) is otherwise unable to pay its debts as and when they become due and payable;

e) being a natural person, commits or suffers an act of bankruptcy; or

f) takes or suffers a similar consequence in debt to those in paragraphs (c) to (e) under the law of any jurisdiction.

Intellectual Property Rights means any and all:

a) current and future registered and unregistered rights in respect of copyright, designs, semiconductor or circuit layouts, trade marks, trade names, business names, trade secrets, know-how, confidential information, patents, inventions and discoveries;

b) applications for grant of any of the above;

c) other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world; and

d) other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967.

Loss of Data means Customer Data has been lost in circumstances where unauthorised access to, or unauthorised disclosure of, the Customer Data is likely to occur.

Order means Cloud Products ordered through Best Practice’s sales via phone/email or online on Best Practice Marketplace.

Privacy Policy means Best Practice’s privacy policy as made available on the Bp Website from time to time.

Privacy Laws means the Privacy Act 1988 (Cth) (including any regulations) and the Australian Privacy Principles, the Spam Act 2003 (Cth) and any applicable state and territory health records legislation, which may include the Health Records Act 2001 (Vic), the Health Records and Information Privacy Act 2002 (NSW), the Health Records (Privacy and Access) Act 1997 (ACT) and the Health and Community Services Complaints Act 2004 (NT); and/or the Privacy Act 2020 New Zealand

Product-Specific Terms means additional terms applicable to certain Best Practice’s Cloud Products available on Bp Website as updated from time to time.

Subscription has the meaning given to that term in clause 6.1.

Subscription Fee means the fee for your Subscription, as updated from time to time.

Subscription Period means, in respect of each Subscription under an Order:

a) for a monthly subscription, each monthly period commencing from the date of acceptance by Best Practice of the Order;

b) for an annual subscription, each twelve (12) month period commencing on the date of acceptance by Best Practice of the Order.

Support Policy means Best Practice’s policy relating to the provision of Support Services available on Bp Website as updated from time to time.

Support Services means technical support services provided by Best Practice in respect of the Cloud Products from time to time.

Supported Operating Environment means the minimum hardware and software requirements for use of the Cloud Products notified by Best Practice from time to time.

Third Party means any provider of a Third Party Service or Third Party Software.

Third Party Service means any third party content, service or site offered by a Third Party that interfaces with, or which is used in conjunction with, the Cloud Products.

Third Party Software means any third party software (including any software provided as a service) that interfaces with, or which is used in conjunction with, the Cloud Products.