Subscription Terms & Conditions

1. Introduction

1.1 Nookal provides a subscription service to assist in practice management. Below are the terms and conditions that apply to transactions made through the Nookal Website. Please read them carefully.

1.2 By purchasing a subscription through the Nookal Website, you agree to the subscription terms and conditions below (Subscription Terms and Conditions), together with the Nookal Privacy Policy and Website Terms of Use.

2. Definitions

2.1 In these Subscription Terms and Conditions:

Agreement means this agreement, including the Licence.

Branding means your name, design, symbol, colour or colour combinations, marks, image, logo, fonts, get-up or any other feature that identifies or makes you distinctive.

Business Day means a day that is not a Saturday, Sunday or public or bank holiday in the Jurisdiction.

Commencement Date means either:

• (a) the date on which you purchase Software from the Website for the Initial Term; or
• (b) the date on which the Initial Term is automatically renewed and a Further Term continues.

Confidential Information means information, whether marked as confidential or not, received or developed by either party, which is not publicly available and relates in any way to each party’s respective business or financial information.

Cost means the price for the Software per Month as listed on the Website.

Further Term(s) means the further period(s) of one (1) Month this Agreement is to continue for following the expiry of the Initial Term (or Further Term as the case may be).

Initial Term means the period of one (1) calendar month from the Commencement Date.

Intellectual Property Rights includes but is not limited to patents, copyright, rights in circuit layouts, registered designs, trade marks, Object Code and Source Code of the Software, and Processes.

Jurisdiction means Queensland, Australia.

Licence means the non-exclusive and non-transferable licence for the Initial Term and any Further Term in the Territory given to you to:

• (a) use the Software; and
• (b) use the Materials relevant to the Software.

Materials means the any of our instructions, manuals, training materials, guides, commentary, listing and other materials for use in conjunction with the Software.

Merchant Terms and Conditions means the terms and conditions applying to the Payment Method chosen and utilised by you to process payments for the Software.

Month means a calendar month.

Moral Rights means:

• (a) a right of attribution of authorship; or
• (b) a right not to have the authorship falsely attributed; or
• (c) a right of integrity of authorship.

Nookal, we, us, our means Nookal Pty Ltd ACN 636 857 979.

Notified Email Address means the email address you nominated when you purchased the Software from us.

Object Code refers to the encoded program scripts that a computer can execute after the Software program is compiled from its Source Code.

Payment Method means a current and valid method of payment accepted by us, which may include payment by credit card.

Personal Information means:

• (a) information, about an individual whose identity is apparent, or can reasonably be ascertained, from the information;
• (b) information or a document that relates to the affairs of another person (such as a company or a business); or
• (c) which is otherwise defined under any Privacy Law,

which is received or learnt by a party from any source as a consequence of or in the performance of its rights and obligations under this Agreement.

Processes includes technologies, products, devices, processes or techniques.

Software means those products and services listed and described on the Website from time to time.

Source Code means the high-level programming language used to create the software programs forming the Software before the program is compiled into encoded program scripts (Object Code) that the computer can execute.

Spam means an electronic message that is both unsolicited and commercial in nature.

Territory means the country in which you are located.

Update refers to a software release to any of the Software to enhance the Software and improve any features of the Software.

Upgrade refers to a software release to any of the to enhance the Software and improve any features and provide additional features that are made commercially available by us and includes any corrections and updates to the associated Materials.

Website means the Nookal website described in the Schedule to these Terms.

3. Grant of Licence

3.1 We grant you a Licence to use the Software in the Territory and subject to the terms and conditions of this Agreement.

4. Costs and Payments

4.1 For the Licence to use the Software, you will pay the Cost to us on the Commencement Date.

4.2 You will pay the Cost to us using a Payment Method. Where the Payment Method incorporates or otherwise utilises a Payment Service, this clause applies.

4.3 You agree to comply with the Merchant Terms of Service published by the Payment Service.

4.4 The fees from a transaction processed through use of the Software may be paid directly to us by the Payment Service. Where this occurs, we will remit those fees immediately to you.

4.5 We may be paid a commission from the Payment Service.

4.6 You acknowledge that the Payment Service, as a third party, may from time to time renew its terms of service.

4.7 You acknowledge that we may change the Costs and will notify you in advance of any such changes.

4.8 We enforce a strict no refund policy for the License to use the Software.

4.9 A surcharge of 20% will be added to the Cost of any Licence commenced using the ‘Sign Up with Xero’ service.

5. Duration

5.1 This Agreement commences on the Commencement Date.

5.2 Subject to the terms of this Agreement, the Licence for the Software will continue for the Initial Term.

5.3 This Agreement, and the Licence for the Software, will automatically renew and continue for a Further Term once the Initial Term expires.

5.4 Every now and then, we may provide you with copies of any amendments to the Materials.

5.5 You must not copy the Materials except where necessary to enable proper use of the Software in accordance with the Licence.

6. Delivery

6.1 On the Commencement Date, we will deliver to your Notified Email Address instructions on how to access and use the Software or a username and temporary password to access the Software.

6.2 Where we need to deliver the Software to you via the internet, you understand and accept any risks associated with a connection over the internet.

6.3 You must conduct all of your own acceptance testing procedures necessary for the Software.

6.4 The Software will, at all times, be hosted by us or an affiliate of ours, on a server (or servers) connected to the internet.

7. Promotions

7.1 Every now and then, we may offer promotions, including a free trial period.

7.2 These Terms apply to any promotions, including a free-trial period.

8. Use of the Software

8.1 You must (and you must ensure users) when using the Software:

• (a) only use or attempt to use the Software “as is”;
• (b) not attempt to access or control the server on which the Software is hosted, except through the client interface or as the Software otherwise provides;
• (c) comply with the current editions of all Materials provided by us;
• (d) comply with any operational guidelines or emergency directions issued by us;
• (e) promptly report any errors, defects or malfunctions experienced or observed in the Software to us;
• (f) not do anything to damage the Software or the server on which the Software is hosted;
• (g) not purport to grant any interest in, sub-licence of or derivative right to use the Software except as permitted by this Agreement;
• (h) not do anything that is detrimental to us; and
• (i) comply with all laws.

8.2 You acknowledge and agree that:

• (a) the Software is provided “as is” as it appears on the server hosted by us;
• (b) as the Software is provided over the internet there may be risks of security and virus threats;
• (c) any data transmitted to and from your computer systems to the server on which the Software is hosted may not be secure given the inherent risks with the internet;
• (d) you must ensure for each user that their device is regularly updated with anti-virus software;
• (e) every now and then we may be required to access the Software and database associated with the Software to ensure ongoing maintenance and continued service;
• (f) you cannot resell or sub-licence the Software;
• (g) we may, but are not obliged to, provide service levels or uptime for the Software and that scheduled maintenance, emergencies or unscheduled outages may occur every now and then which may leave the Software unavailable or with limited functionality. To assist you with this, we will provide our service status on a Status page;
• (h) access to and use of the Software may be impaired or prevented by a variety of factors that are beyond our control, for instance defects in computer systems and problems with internet connectivity between you and the server hosting the Software and we are not responsible for any such things or their effects;
• (i) every now and then we may, but are not obliged to, back up data that is entered into the Software by you (Licensee Data), as part of undertaking a whole system back up of the Software. To assist you with this, we will provide our scheduled process on a Backups page. You acknowledge and agree in respect of the Licensee Data:
• (j) that you consent to us holding and accessing the Licensee Data for this purpose; and
• (k) that you must regularly back up the Licensee Data to a location other than the Software. You release us from any liability in respect of the Licensee Data and any loss caused if you do not back up the Licensee Data.

8.3 You must not (and must ensure other users do not) use the Software:

• (a) in any way that breaches any applicable laws or regulations;
• (b) unlawfully or fraudulently;
• (c) to harm or attempt to harm minors in any way; or
• (d) to transmit, or procure the sending of, any unauthorised advertising material (spam).

8.4 You will not (and must ensure other users do not):

• (a) use the Software outside the Territory;
• (b) use or launch any automated system that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
• (c) use the Software in any manner that damages, disables, overburdens, or impairs any of our Websites or interferes with any other party’s use of the Software;
• (d) attempt to gain unauthorised access to the Software;
• (e) access the Software other than through the Software interface; or
• (f) use the Software for any purpose or in any manner that is unlawful or prohibited by this Agreement.

9. Maintenance of the Software

9.1 We may from time to provide Updates or Upgrades to the Software. You must implement such Updates or Upgrades.

10. Personal Information

10.1 In this clause:

GDPR means the EU GDPR and UK GDPR as defined in clause 10.3.

GDPR Data means EU GDPR Data and UK GDPR Data as defined in clause 10.3

10.2 You acknowledge that we will collect Personal Information in providing the Software and all Personal Information will be handled in accordance with our Privacy Policy.

10.3 Where you collect Personal Information from a citizen of the:

• (a) United Kingdom and that citizen is subject the UK General Data Protection Regulation under the Data Protection Act 2018 (UK) (UK GDPR Data); or
• (b) European Economic Area and that citizen is subject to the General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR Data),

then you must in all respects comply with the UK GDPR and EU GDPR, including but not limited to:

• (c) for the UK GDPR Data, sign and return our data protection addendum;
• (d) acknowledging that you are the ‘controller’ of the GDPR Data for the purposes of the GDPR;
• (e) acknowledging that we are the ‘processor’ of the GDPR Data for the purposes of the GDPR;
• (f) if you collect GDPR Data of a person under the age of 16 years (Minor), you must ensure you obtain the express consent of the parent or guardian to the Minor to the collection, storage and process of the GDPR Data of the Minor;
• (g) you obtaining the express consent for the UK GDPR Data to be transferred outside of the United Kingdom to Ireland;
• (h) you obtaining express consent for the UK GDPR Data to be lawfully used, processed and transferred in accordance with this Agreement; and
• (i) where ‘special categories of data’ are collected by you, implementing sufficient security controls and technological measures to handle and deal with that data in accordance with the GDPR.

10.4 If a third party alleges infringement of its Personal Information under the Privacy Laws and/or the GDPR, we may take measures necessary to prevent the infringement of a third party’s rights from continuing.

10.5 We may unilaterally change this Agreement to meet the laws and requirements of any Jurisdiction in respect of Personal Information, as a result of your use of any Software and/or data associated with or uploaded to the Software either directly or indirectly in a jurisdiction.

11. Indemnity

11.1 You shall promptly advise us in writing of any actions, claims proceedings which may be brought or claimed against you or us arising out of the use of the Software by you or your agents.

11.2 Except to any extent caused by us, you hereby release, indemnify and agree to keep us indemnified against any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs (including solicitor and client costs), charges and expenses arising out of the use of the Software by you, your employees, third parties servants and agents, including for any breach of the Privacy Laws and/or GDPR.

11.3 We are not liable to you or any third party under this Agreement or under general law to the extent that any loss or damage is caused or contributed to by:

• (a) your negligence or the negligence of a third party to you;
• (b) any breach by you of the terms and conditions of this Agreement or any other applicable laws, regulations or rules in the Jurisdiction;
• (c) the use of the Software in conjunction with any other software not approved in writing by us for use with the Software; or
• (d) any virus or similar occurrence which adversely affects us, or the Software which was caused by you or your access facilities.

11.4 Neither party shall in any circumstances be liable to the other party or any third party for any consequential losses or any other loss of profit, revenue, goodwill, savings or data, regardless of whether the party was advised of such losses in advance.

11.5 You warrant to us that you acquire the goods or services under this Agreement, not for personal, domestic or household use or consumption. You acknowledge that our liability is limited for a failure to comply with any consumer guarantees under the Australian Consumer Law (other than where to do so would otherwise cause all or part of this clause to be void) to, at our option, in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced, and in the case of services, re-supplying the services or paying the cost of having the services re-supplied. Except for the above, all statutory warranties conferred in relation to the supply of goods or services to you under these terms are excluded.

11.6 Our total liability to you arising under this Agreement, in a calendar year, will not exceed the amount of the fees paid by you under this Agreement in that calendar year.

11.7 You fully release us from any claim, cost, expense, liability or damage incurred by you as a result of us suspending access of any user to the Software in accordance with the terms and conditions of this Agreement, or from you not undertaking a back up of the data you or your users input into the Software.

11.8 Where the Software incorporates or otherwise uses a Payment Method, you indemnify us against any “chargeback” made by the third-party merchant under its Merchant Terms of Service and to make good the damage suffered by us by reason of any “chargeback” that is made.

12. Warranties

12.1 Save for those express warranties provided in this Agreement to the maximum extent permitted by law, we do not give an express warranty of any kind in relation to Software, Material and/or services supplied under this Agreement.

12.2 We do not warrant that the Software or Materials will be free of bugs, errors or viruses.

12.3 Each party, at the Commencement Date, warrants to the other that:

• (a) they have the full corporate power to execute, deliver and perform their obligations under this Agreement;
• (b) the Agreement constitutes a legal, valid and binding obligation on each party, enforceable in accordance with its terms by appropriate legal remedy; and
• (c) each party has all licences, authorisations, consents, approvals and permits required by applicable laws to perform its obligations under the Agreement.

13. Termination

13.1 This Agreement will renew and continue for Further Terms until cancelled by you or Nookal. This Agreement may be terminated by either party giving notice to the other party if the other party commits any breach of any provision in this Agreement and does not remedy the breach within 14 days of receiving written notice to do so.

13.2 Either party may terminate this Agreement at any time and without reason, by giving the other party thirty (30) days written notice.

13.3 If you fail to pay the Costs as required under this Agreement, we may cancel, restrict, or suspend your subscription and Nookal account immediately without notice to you. We may engage an external agency to recover any debt owed by you or charge you a late payment fee or disconnection fee.

13.4 If we cancel, restrict, or suspend your subscription or Nookal account, we reserve the right not to reinstate the subscription or Nookal account until you have paid all amounts outstanding on all accounts. Nookal may charge a reinstatement fee, in addition to any late payment or disconnection fees.

13.5 If you or Nookal cancel your Nookal account, we will issue correspondence to you requesting you confirm which data currently stored on your Nookal account you require to be provided to you. We will provide you with a copy of the data requested in PDF or CSV form. Thereafter, your account and any data stored on the account will be deleted ninety (90) days after your account is cancelled. Free trial accounts will be deleted immediately after the trial period has expired.

14. SMS Service

14.1 We offer an integrated SMS system for use as part of the Software, which allows you to send automated appointment reminders and SMS messages.

14.2 We use a credit-based system for sending SMS messages and each message is charged at a predetermined monthly amount. Nookal may change this monthly amount at any time without notice to you.

14.3 SMS message charges are not included during a free trial or demonstration period and will be charged to you during or at the conclusion of your trial or demonstration.

14.4 You agree that we will not be held responsible for any repercussions for SMS messages not sent or not received and for any misuse of the SMS services offered, which may be interpreted as spam or unwanted electronic material.

14.5 SMS message delivery is not guaranteed by any network operator, and there is no method through which we can determine whether an SMS message has been delivered to the recipient’s handset.

14.6 You acknowledge that all prices exclude any taxes (including consumption tax of any kind) or duties payable in respect of the Software in the jurisdiction where the payment is either made or received.

15. Spam Statement

15.1 The Nookal Website is governed by Spam Act 2003 (Cth).

15.2 You will not use any of our services to send, deliver or cause Spam to be delivered to any person.

15.3 You acknowledge that if you use your Nookal account to send, deliver or cause Spam to be delivered, you are in breach of these Subscription Terms and Conditions and we may suspend or terminate your Nookal account and / or Subscription.

15.4 We assure you that:

• (a) we have crafted an internal policy to educate our staff and implement clear guidelines and rules in relation to the dissemination of commercial electronic messages; and
• (b) you are at liberty to unsubscribe from any mailing list to which you have previously subscribed. If for any reason there appears to be no facility to be removed from the mailing list, you can send us an email at support@nookal.com advising that you wish to unsubscribe from the mailing list.

15.5 To assist us in combatting Spam, you agree:

• (a) that if you receive an unauthorised advertisement or offensive message, which appears to originate from Nookal, to assume it has been sent in error and to notify us immediately;
• (b) to ensure you unsubscribe from any of our mailing lists if you decide you no longer wish to receive commercial messages from us or our contracted third parties;
• (c) if you do subscribe to any of our mailing lists, to ensure that we have your current details at all times.

16. Claiming Service

16.1 We offer an integrated Medicare and Department of Veteran’s Affairs (DVA) online claiming system for use within Nookal that sends claims to Medicare and DVA within Australia for processing.

16.2 You acknowledge that Nookal use a credit-based system for sending claims and when a claim is marked as “completed”, you are charged at a predetermined amount, which is displayed on the Website. These credits work the same way as the SMS credits discussed at clause 13 above. You acknowledge the predetermined amount may change at any time without notice.

16.3 You agree that Nookal will not be held responsible for any repercussions for claims not sent or not received and for any misuse of the claiming services offered.

16.4 Claims marked “completed” do not guarantee that the claimed amount was paid to the recipient, and there is no method through which we can determine whether the claimed amount was paid to the recipient.

17. Expiry of Service Credits

17.1 Unused service credits for services including but not limited to SMS and Online Claiming will expire 12 months after purchase of the Software. Nookal enforces a strict no refund policy for unused service credits for services including but not limited to SMS and Online Claiming.

18. Limitation of Liability

18.1 To the maximum extent permitted by law, we provide our Software on an “as is” and “as available” basis without any representation or warranties, including implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

18.2 To the maximum extent permitted by law, in no case shall we, including but not limited to our directors, officers and employees be responsible for any injury, loss, claim, or damages of any kind arising from your use of the Software, the Website or your use of any of the Software using our Website

19. Intellectual Property

19.1 We will always own and retain all rights and Intellectual Property rights in the Software and the Materials.

19.2 The parties warrant that nothing in this Agreement affects any transfer or assignment of ownership of any Intellectual Property Rights in the Software or any content uploaded to or generated through the Software by you and your authorised users.

19.3 You acknowledge that you will not remove any copyright notices in the Materials or the Software.

19.4 You must immediately inform us of any breach of the Software system or security you become aware of and must provide details of the breach to us sufficient for us to recreate and/or remedy the breach.

19.5 If you learn of any infringement or threatened infringement of the Intellectual Property rights licensed under this Agreement, you must let us know in writing.

20. Licence to use Branding

20.1 You grant to us a non-exclusive and non-transferable licence to use the Branding for the purpose of delivering the Software and Materials.

20.2 You consent to us dealing with the Moral Rights in the Branding to develop and deliver the Software.

20.3 You release us from any claim in relation to any act or omission done in respect of or in dealing with the Branding.

20.4 The rights obtained by us under this Agreement may be exercised in all the states and territories of Australia and worldwide.

20.5 We may utilise your Branding for promotion with third parties.

21. Australian Consumer Law

21.1 This section applies to Australian residents only.

21.2 All Software comes with guarantees that cannot be excluded under the Australian Consumer Law (prescribed in accordance with the Competition and Consumer Act 2010 (Cth)). If you are a Consumer, as defined in Section Australian Consumer Law, we acknowledge that the Consumer Guarantees in Division 1 of Part 3-2 of the Australian Consumer Law will apply to the supply of services under this Agreement. The liability of Nookal for a breach of a Consumer Guarantee is governed by clause 20.3 of this Agreement.

21.3 Where you are a Consumer, the liability of Nookal for a breach of a Consumer Guarantee is limited to (at the election of Nookal):

• (a) resupplying the services; or
• (b) paying the cost of having the services supplied again.

21.4 Subject to any rights you may have under the non-excludable guarantees under the Australian Consumer Law, we may impose fees payable by you in relation to any service not covered by the guarantees under the Australian Consumer Law.

22. Notices

22.1 Any notice under this Agreement must be in writing and:

• (a) given to us at: support@nookal.com; or
• (b) given to you at the Notified Email Address.

22.2 Any notice given under this clause will be deemed as served on the Business Day after successful transmission from the server of the sender.

22.3 The parties agree that all agreements, notices, disclosures and other communications that are provided electronically, satisfy any legal requirement that such communications be in writing, including for the purposes of this clause.

23. Taxes

23.1 The Costs and any other fees under this Agreement exclude any taxes or duties payable in respect of the Software in the Jurisdiction. You must pay to us the amount of any taxes or duties in addition to any Costs or other fees owed under this Agreement. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority in the Jurisdiction, if such a refund or credit is available.

24. Dispute Resolution

24.1 (Informal resolution): If a dispute arises between the parties in respect of this Agreement, then the parties agree to use their best endeavours to resolve the dispute within 60 days from the time any party gives to the other party notice in writing of the dispute. All negotiations will be confidential and treated as a compromise and settlement negotiations for the purposes of all rules and codes of evidence of applicable legislation.

24.2 (Arbitration):

• (a) Where a dispute is not resolved in accordance with clause 23.1 (Unresolved Dispute), then a dispute will be referred to either by the Courts of the State of Queensland, Australia or by arbitration administered by the Resolution Institute in Australia at our sole discretion, provided if any Unresolved Dispute is commenced by you, you give us not less than 14 days’ notice in writing of your intention to commence proceedings, and we must exercise our election in writing within 14 days of receiving that notice.
• (b) Any arbitration commenced at the Resolution Institute in Australia will be conducted under the Arbitration Rules of the Resolution Institute in force when the Unresolved Dispute is submitted to the Resolution Institute. The substantive law to be applied in the arbitration will be the law of Queensland, Australia. There will be one arbitrator, the language of the arbitration shall be English and the place of the arbitration shall be the city of Brisbane in the State of Queensland, Australia.
• (c) The parties are bound to the decision or award of any Court or arbitrator to any Unresolved Dispute.

25. General

25.1 (Waiver): Any waiver regarding the performance of this Agreement will operate only if in writing and will apply only to the specific instance and will not affect the existence and continued applicability of the terms of it thereafter.

25.2 (Entire Agreement): The Agreement and its relevant parts for the Software embodies all the terms binding between the parties and replaces all previous representations or proposals not embodied herein.

25.3 (Assignment): You must not assign all or any of your rights in this Agreement without our prior written consent. We may in our discretion assign all or any of our rights in this Agreement

25.4 (Jurisdiction): This Agreement will be governed by and construed in accordance with the applicable laws of the Queensland, Australia. Each party agrees that any legal action arising out of this Agreement must be brought exclusively in Queensland, Australia, and each party submits to the exclusive jurisdiction of the courts in Queensland, Australia.

25.5 (Vienna Sale Convention): The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

25.6 (Uniform Commercial Code): The Uniform Commercial Code and its variants as adopted by the states and territories of the United States of America do not apply to this Agreement.

25.7 (Amendments): This Agreement may not be varied except in writing signed by the parties.

25.8 (Severability): If any provision of this Agreement is held by a court to be unlawful or invalid the validity and enforceability of the remaining provisions will not be affected.

25.9 (Further Agreements): Each party will execute such agreements, deeds and documents necessary to give effect to this Agreement.

25.10 (Charges): All stamp duties and governmental charges arising out of or incidental to this Agreement will be payable by you.

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