1.1. This agreement is between Fitgenes and the You for the use of Pracware and other Services provided by Fitgenes to You. It is a legal agreement containing the terms and conditions of use.
1.2. Fitgenes is the owner of and has the right to provide you access to Pracware and provide the Services.
1.3. You wish to use Pracware and other Services.
1.4. Fitgenes agrees that You can use Pracware and other Services for the Permitted Purpose and You accept this on the terms and conditions in this agreement.
2.1. Fitgenes grants a license to You to use Pracware and the Services on and from the Commencement Date for the Permitted Purpose.
2.2. You may not transfer or assign the License;
2.3. You may not sub-license the License
2.4. You may not reverse engineer, reverse assemble or reverse compile or otherwise endeavor to obtain source code from the object code;
2.5. You are not permitted to copy, reproduce, adapt, modify or in any way alter or store Pracware and any content or material available within Pracware or the Services other than as set out in this agreement, without the express written permission of Fitgenes.
3.1. You will pay the Fee;
3.2. You are not obliged to pay any fee unless you have received a Tax Invoice from Fitgenes.
- (INTELLECTUAL PROPERTY)
4.1. You acknowledge and agree that Fitgenes is the owner of the Intellectual Property Rights.
4.2. You must not alter remove or obscure any trademark or copyright symbol or other proprietary mark of Fitgenes in relation to the use of any materials supplied with Pracware or the Services.
- (CONFIDENTIAL INFORMATION AND PRIVACY)
5.1. You acknowledge and agree that Pracware and the Services contain Confidential Information belonging to Fitgenes.
5.2. Fitgenes is committed to protecting and maintaining the privacy, accuracy and security of all personal information including personal information provided by You and other information that Fitgenes collects and handles as part of Pracware and/or Services provided. A copy of Fitgenes policies for privacy is available on request.
5.3. Your personal information will be used for establishing and maintaining your account with Fitgenes as a subscriber or authorized user of Pracware and/or any Service and unless required by law, your personal information will not be disclosed to any third party without your consent.
- (FITGENES REPRESENTATIONS AND WARRANTIES)
6.1. Fitgenes represents and warrants that it has the provided Pracware and the Services to You.
- (YOUR REPRESENTATIONS AND WARRANTIES)
7.1. You warrant that you have not relied on any representation made by Fitgenes other than as set out in this agreement.
7.2. You are only permitted to use Pracware and the Services for the Permitted Purpose and that you have no Intellectual Property Rights arising from this use.
7.3. You are solely responsible for the use, supervision, management, and control of Pracware and the Services.
7.4. You are responsible for the security of your password and access to information in Pracware or the Services that is or may be available using your password. You must not disclose your password to any third party without the express written permission of Fitgenes and it is your obligation to maintain patient privacy over information that can or may be accessed using your password.
7.5. You will ensure that Pracware and the Services are at all times protected from access, use or misuse, and damage and destruction by any person not authorised by Fitgenes and You will notify Fitgenes if You become aware of any such use.
7.6. Fitgenes gives no guarantee to the accuracy or completeness of Pracware or the Services or that they are free from error.
- (LIMITATION OF LIABILITY)
8.1. To the fullest extent permitted by law, Fitgenes expressly disclaims all implied warranties and conditions including without limitation implied warranties on merchantability and fitness for purpose of Pracware and the Services.
8.2. To the extent that any liability of Fitgenes under the Trade Practices Act 1974(Cth) cannot be excluded, Fitgenes liability is limited to replacing Pracware or the Service.
8.3. To the fullest extent permitted by law, Fitgenes excludes all liability for indirect and consequential loss including without limitation the loss or corruption of Pracware or the Services, the loss of revenue, loss of profits, failure to realise expected profits or savings, and any other commercial or economic loss of any kind arising from this agreement.
9.1. Fitgenes indemnifies and hold harmless You from and against any loss, liability, cost or expense that You suffer directly or indirectly because of an Intellectual Property Right and/or moral rights claim in Pracware and/or the Services.
9.2. You indemnify and hold harmless Fitgenes and promise to keep Fitgenes indemnified against any loss, claim, action, settlement, award, judgment, expense, or damage of whatsoever kind or nature and howsoever arising that Fitgenes might suffer as a result of any inaccuracy of Pracware and/or the Services including any unauthorized use by You.
10.1. Where You fail to perform any obligation set out in this agreement then Fitgenes reserves the right to immediately terminate with Notice to You.
10.2. Following termination, the parties agree that all rights under this agreement will cease, except clauses related to Confidentiality, Fitgenes Representations and Warranty, Your Representations and Warranty, Limitation of Liability and Indemnity will continue to be binding.
11. (DISPUTE RESOLUTION)
11.1. In the event of a dispute arising between the parties in relation to this agreement and any license, each party covenants with the other party in good faith to take all steps necessary to attempt to resolve the dispute.
11.2. In the event that the parties are unable to resolve the dispute within a reasonable period, then either party may apply to the Queensland Alternative Dispute Resolution Centre for resolution of the dispute, which will be binding on the parties.
12.1. This agreement will be governed and construed in accordance with the laws of Queensland, Australia and any claim by one party against the other in any way arising out of this agreement will be heard in Queensland and the parties submit to the jurisdiction of the Queensland courts.
12.2. Nothing in this agreement will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.
12.3. The terms of this agreement constitute the entire terms of the agreement and all understandings, prior representations, arrangements or commitments that are not contained in this agreement have no effect whatsoever and do not bind the parties.
12.4. No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or another right or remedy on a future occasion.
12.5. Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being in this agreement unless law cannot exclude it.
13.1. Alternative Dispute Resolution Centre means an accepted dispute resolution centre used in Queensland for resolution of legal and other disputes.
13.2. Confidential Information means all information in whatever form but does not include any information that prior to the date of this agreement was in the public domain or which the discloser has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party.
13.3. Commencement Date means the date on which Fitgenes provides You access or use of Pracware or a Service.
13.4. Fee means the fee schedule provided by Fitgenes in relation to Pracware or the Service and which may be amended from time to time by publication either in Pracware or on the Fitgenes website.
13.5. Fitgenes means Fitgenes Australia Pty Ltd ACN 139 521 010
13.6. Intellectual Property Rights means all rights in copyright, circuit layout, designs, trademarks, patents and all other rights in intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention, whether registrable, registered, patented or not.
13.7. Notice may be provided to the email held by Fitgenes for You.
13.8. Permitted Purpose for use by You solely to be used by You to support You to develop personalized healthcare programs that You may use and interpret based on your own healthcare expertise to deliver a personalized healthcare program to your customers.
13.9. Pracware is a software suite, which may comprise The Practitioner Web Portal, Pracware lite.html, and Pracware Pro.html; but is not limited to these applications and may incorporating genetic results and information on genetics collated from published research.
13.10. Service means any education and training program, DNA kit tests, or service or report that Fitgenes may provide to you.
13.11. Tax Invoice means an invoice that is GST compliant.
13.12. You means you, the party to this agreement, prior to access of Pracware or any Service.
14.1. By registering to use Pracware or subscribing to, purchasing or using any other Service provided by Fitgenes, You agree to accept and agree to be bound by this agreement.
14.2. You agree to be bound by any changes to these terms notified by publishing on the Fitgenes website from time to time or within Pracware.
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a) To the fullest extent permitted by law, any Fee that you pay Fitgenes (including any pre-paid fees) is non-refundable, except where otherwise stated or by express consent of Fitgenes.
b) In the limited circumstances where a refund is granted, Fitgenes may apply a cancellation fee or administrative charge as determined by Fitgenes to compensate Fitgenes for the costs and charges it incurs in handling your request.
2) Credit Cards
a) Fitgenes will accept payment through most major credit cards and may accept alternative payment processes.
b) Where you pay Fitgenes by credit card:
i) It is your responsibility to ensure that there are sufficient clear funds available in your nominated credit card account to cover payments and charges for the purchase made by You.
ii) You must advise us of any change to the details of your credit or debit card or account at the time when these changes are made.
iii) If on the payment date there are insufficient funds in your credit card to process the payment then you may be charged a fee and/or interest by your financial institution and you may also incur fees or charges imposed or incurred by Fitgenes; and you must arrange for the payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that Fitgenes can process the payment.
i) If Fitgenes offers an automatic renewal for payments, then you acknowledge and consent to Fitgenes charging your credit card the amount of the Fee for that license renewal based on a 12 month license fee paid in full in advance or if offered by Fitgenes, a monthly license fee paid monthly in advance;
ii) You may cancel the any automatic renewal you have purchased from Fitgenes by sending an email to Fitgenes at least 7 days prior to any renewal date.