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Terms of Use

FreshClaim Pty Ltd ACN 662 233 749

These terms of use apply to your use of FreshClaim Services, applications and services. By using a Freshclaim product or using the Freshclaim Platform you agree to be bound by these terms. FreshClaim is supplied by FreshClaim Pty Ltd ACN 662 233 749 (us).

Please read the entire terms very carefully. Some of the key items are summarised below, but this should not be used as a substitute for reading the document in its entirety:

  • Words that are capitalised have defined meanings, as set out in clause 21.
  • From time to time, we may make changes to these terms. For more information on this, see clause 1.2.
  • We may amend the Fee payable by you on 30 days’ notice. If you do not agree then you are not tied in.
  • You are not tied in and can terminate at any time. Your access to the Platform can be terminated in accordance with clause 10.
  • Terms relating to your data and how we may use it are set out in clauses 13 and 14.
  • Clauses 17 and 18 contain important limitations on our liability, disclaimers, exclusions, releases and indemnities. In practical terms, these clauses set out what we do not accept liability for, and what you will need to compensate us for. You should pay special attention to those.

1. Acceptance of Terms

1.1 By using the Services, or confirming your acceptance as part of registration, you agree to these Terms of Use (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Services constitutes your acceptance and acknowledgment of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Services.

1.2 We may initiate amendments or modifications to this Agreement from time to time by providing you with 14 days’ notice, whether by email or by notice within the Services. Given you may terminate this Agreement at any time under clause 10, your continued use of the Services after that notice period constitutes your acceptance of the amended Agreement. If you do not agree to the amendments, you must stop using the Services before the amendments take effect.

1.3 This Agreement, together with the commercial terms agreed separately between us, will prevail over any other terms or agreement between you and us.

1.4 In this Agreement, capitalised words and phrases have the meaning given to them when first used and followed by bolded brackets, or as set out in clause 21 (Definitions) at the end of the Agreement.

2. Term

2.1 This Agreement commences on the date you accept it in accordance with clause 1.1, and continues until terminated in accordance with clause 10.

2.2 There is no minimum term, lock-in period, or automatic renewal under this Agreement. You may terminate the Agreement at any time in accordance with clause 10.

3. Licence

3.1 In exchange for you complying with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Services for the Permitted Use. This licence continues for the Term of this Agreement in accordance with clause 2.

3.2 You must not:

  1. use the Services for any purpose other than the Permitted Use;
  2. use the Services in any way which is in breach of any applicable laws or which infringes any person’s rights, including Intellectual Property Rights;
  3. do anything which may compromise or interfere with the supply of the Services or our systems, including without limitation introducing malicious programs such as viruses, worms, trojan horses, and email bombs;
  4. circumvent any applicable Fees or access or use the Services in a manner intended to avoid incurring Fees;
  5. export, extract, or otherwise scrape any of the content or data on the Services for use outside the Services, including (but not limited to) pre-fetching, indexing, storing, resharing, or rehosting any of our content outside the Services;
  6. create content based on the Services except as specifically contemplated by the Services; or
  7. re-create the look-and-feel, features or functionality of the Services, including creating a product or service with a substantially similar look-and-feel, functionality or features to the Services or any other product or service owned by us.

4. Your Warranties and Obligations

4.1 You warrant and agree that:

  1. there are no legal restrictions preventing you from agreeing to this Agreement; and
  2. you are not Insolvent.

4.2 When using the Services:

  1. you will always act in a courteous and polite manner whenever dealing with us, and never in an antisocial, discriminatory, abusive, hostile or obscene way;
  2. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;
  3. you are responsible (at your cost) for obtaining and maintaining any consents, licences, authorities, and permissions required for you to make use of the Services (and you will provide evidence of this to us upon request), including any AHPRA registration, Medicare provider number, and Health Fund registration necessary to submit an Order or claim via the Services;
  4. it remains your responsibility to validate each Patient's eligibility for the relevant Medicare or health fund benefit each time you submit an Order or claim via the Services; and
  5. you are solely responsible for all clinical and prescribing decisions in connection with any Order, and for the accuracy of all information contained in an Order or claim submitted via the Services.

4.3 You:

  1. authorise us to transmit the information you input or upload into the Services, including Patient Data and Health Data, to Medicare, Services Australia and/or the relevant Health Fund via Eclipse, for the purpose of submitting an Order or claim on your behalf;
  2. have obtained each Patient's consent to the collection of their Personal Information, including their Health Data, for the purpose of providing the Services, consistent with our Privacy Policy; and
  3. have disclosed to Patients that you use third-party suppliers for the provision of these Services.

5. Our Warranties

5.1 We warrant and agree that:

  1. the Services will perform materially in accordance with the Specifications;
  2. the Services will not infringe on the Intellectual Property Rights of any person;
  3. we will maintain sufficient and appropriately qualified and experienced personnel to operate and provide the Services in accordance with the Agreement.

5.2 We do not warrant the accuracy of any information captured by scanning a patient label, and you must review all such information before submitting an Order or claim via the Services.

6. Accounts and Users

6.1 The Client may authorise Authorised Users to use the Services. Where the Client does so, the following terms apply:

  1. we grant the Client the right to add or remove Authorised Users to use the Services. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement;
  2. the Client is liable for all Authorised Users’ use of the Services and compliance with this Agreement;
  3. this Agreement still applies and binds all Authorised Users, except that terms relating to Fees and Termination will apply only to the Client;
  4. any Authorised User’s licence to access the Services will terminate upon the termination of this Agreement or the Client’s engagement with us.

6.2 You are solely responsible for your account credentials and for all use and activity carried out under your account. You must not share your account credentials with any third party. We do not authorise anyone to use the Services on your behalf on your own individual account, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.

6.3 You agree not to create an account or use the Services if you have been previously removed or suspended by us from the use of the Services.

7. Support Services

7.1 Subject to the below conditions being met, we will provide you the Support Services for the Term of this Agreement:

  1. you are not in breach of any term of the Agreement and you are using the Services as intended under this Agreement;
  2. your Operating Environment meets the minimum requirements set out in the Specifications; and
  3. you have provided all information requested by us in relation to Support Services.

7.2 Our liability for any failure to provide the Support Services is limited to resupplying the Services support to the extent required to remedy the failure. This is your sole remedy for any failure to provide the Support Services.

7.3 For clarity, any Intellectual Property Rights arising in connection with the Support Services (including any enhancements or customisations) vest exclusively in us immediately upon creation.

8. Fees

8.1 In respect of any Gap Fees that we receive from Patients or Health Funds, we will hold those Gap Fees on trust for you until the completion of your services to the Patient, and then, on your instructions, we'll release the Gap Fee as payment to you. When we transfer the Gap Fees to you, we may deduct from the Gap Fee held by us any unpaid fee that you owe to us.

8.2 We will invoice you monthly for a fee equal to the agreed commercial terms between the parties based on the total value of paid Orders and claims (including any Gap Fees) processed via the Services during the preceding month (Fees), plus GST. You must pay each invoice within 14 days of the date of the invoice, without counterclaim or deduction.

8.3 You must pay the Fees to us in arrears without counterclaim or deduction in accordance with the terms of this Agreement.

8.4 Unless expressly stated otherwise, all amounts stated in or in relation to this Agreement are expressed exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.

8.5 We may offer one or more payment processors as a way to facilitate payment of the Fees and to process Gap Fees on your behalf. You must make payment by way of one of the payment processors offered (which we may modify from time to time at our sole discretion). You agree that:

  1. any cost, fee, or other charges charged by such processor must be paid by you in addition to the Fees;
  2. you must comply with the terms and conditions of the relevant processor.

8.6 We are entitled to modify our Fees at any time, on 30 days’ prior written notice to you. If you do not agree to amended Fees then you are free to terminate your use of the Service or simply cease using the Service.

8.7 If you dispute a portion of any invoice, you must still pay all undisputed portions of the invoice.

8.8 In addition to any other right we have, if you fail to fully pay any amount owed to us for a period of 7 days or more, we may do any of the following at our sole discretion:

  1. suspend access to the Services until all amounts are fully paid; and
  2. charge you interest at the rate equivalent to 1% per month on any amounts owing to us; and
  3. charge you for any reasonable costs incurred in the recovery of the debt from you (including but not limited to court costs, legal costs and debt collection agency costs).

9. Updates

9.1 We may implement (at our absolute discretion) Updates to the Services from time to time. We will endeavour to provide you with reasonable prior written notice of any scheduled Update that is likely to affect the availability of the Services or is likely to have a material negative impact on you.

10. Termination

10.1 Either party may terminate this Agreement at any time, and without needing to give a reason, by giving 14 days' written notice to the other party. There is no minimum term or lock-in period.

10.2 We may terminate this Agreement with immediate effect by giving written notice to you at any time if:

  1. you are Insolvent; or
  2. you breach any material provision of this Agreement which cannot be remedied, or where the breach is capable of being remedied, if you fail to remedy the breach within 7 days after receiving written notice from us requiring you to do so; or
  3. you fail to hold, or your registration or authority under, any AHPRA registration, Medicare provider number, or Health Fund registration necessary to use the Services is suspended, cancelled, or revoked.

10.3 We may suspend your access to the Services if any amount due to us is not paid on time, or while we investigate a suspected breach of this Agreement by you.

11. Effects of termination

11.1 On termination of this Agreement for any reason:

  1. you must immediately stop using the Services, and we may take any action necessary to disable or terminate your access to the Services;
  2. you must, within 5 Business Days of termination, pay to us all Fees incurred and/or owing under this Agreement up to and including the date of termination or expiry. To the extent permitted by law, and except where expressly stated in this Agreement, you will not be entitled to a refund of Fees that have already been billed or paid; and
  3. all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 11 (Effects of termination), 12 (Intellectual Property), 13 (User Data), 14 (Data Storage and Security), 15 (Privacy), 16 (Confidentiality), 17 (Limitation of liability) and 18 (Release and Indemnity).

12. Intellectual Property

12.1 We own all Intellectual Property Rights in the Services, the Support Services, any other services or products provided by us, any associated documentation, and all Updates, improvements, modifications, customisations and derivative works, whether made by us or by you, and nothing in this Agreement transfers any of those Intellectual Property Rights to you in any way.

12.2 If you provide us with comments or suggestions relating to the Services, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), is assigned to us, and we may use the feedback for any purpose.

12.3 You must not, without our prior written consent:

  1. copy or use, in whole or in part, any of our Intellectual Property Rights;
  2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;
  3. reverse assemble, reverse engineer, reverse compile or enhance the Services;
  4. breach any Intellectual Property Rights connected with us or the Services, including altering or modifying any of our Intellectual Property Rights;
  5. cause any of our Intellectual Property Rights to be framed or embedded in another digital asset;
  6. create derivative works or reproductions of any of our Intellectual Property Rights or the Services;
  7. resell, assign, transfer, distribute or make available the Services to third parties;
  8. “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network;
  9. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Services; or
  10. assist or allow any third party to do any of the restricted activities in this clause 12.3.

12.4 You acknowledge that we will suffer real and substantial damage due to a breach of this clause 12 and may seek injunctive relief for any actual or perceived breach, and damages alone are not an adequate remedy.

13. User Data

13.1 Except as otherwise stated in this Agreement, as between you and us, you own all Intellectual Property Rights in all User Data, including Patient Data and Health Data.

13.2 Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services in an aggregated and anonymised format (Analytics). We and our licensors own all Intellectual Property Rights in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics. You agree that we may make such Analytics publicly available, provided that it:

  1. does not contain identifying information; and
  2. is not compiled using a sample size small enough to make the underlying User Data identifiable.

13.3 You grant us an irrevocable, perpetual licence (and consent) to use, process, copy, transmit, store and backup or otherwise access the User Data during the Term of this Agreement solely to:

  1. supply the Services to you (including to enable you and your personnel to access and use the Services), including transmitting Patient Data and Health Data to Medicare, Services Australia and/or the relevant Health Fund via Eclipse;
  2. diagnose problems with the Services;
  3. Update or otherwise improve, modify or maintain the Services, including by way of using the User Data (in aggregated or non-identifying form) for machine learning and artificial intelligence training to improving the accuracy of our patient label scanning technology and identifying patterns in claim underpayment or rejection;
  4. train our staff; and
  5. develop other services,

provided we de-identify the User Data where appropriate.

13.4 In relation to any User Data that you provide to us or upload into the Services, you represent and warrant that:

  1. you are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it;
  2. you have obtained all necessary rights, consents, releases and permissions to provide all your User Data to us and to grant the rights granted to us in this Agreement; and
  3. any use, collection and disclosure authorised in this Agreement are not inconsistent with the terms of any applicable privacy policies.

14. Data Storage and Security

14.1 We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference. We do not guarantee that your User Data will be backed up.

14.2 Given the sensitivity of Health Data, we apply additional safeguards to it, consistent with our Privacy Policy.

14.3 Generally, we aim to delete any Personal Information of yours as soon as practicable after the termination of this Agreement. However, we may sometimes retain Personal Information for an additional period as is permitted or required under applicable laws. Even if we delete your Personal Information it may persist on backup or archival media for an additional period of time for legal, tax or regulatory reasons or for legitimate and lawful business purposes.

14.4 We will store User Data, including Patient Data and Health Data, on servers located in Australia.

15. Privacy

15.1 You are responsible for the collection, use, storage, and otherwise dealing with Personal Information related to your business.

15.2 You must comply and must ensure that all of your personnel comply, with the requirements of the Privacy Laws in respect of all Personal Information collected, used, stored, or otherwise dealt with under or in connection with this Agreement.

15.3 You must:

  1. notify natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Laws in relation to the collection, use, and storage of their Personal Information;
  2. notify us immediately upon becoming aware of any breach of the Privacy Laws that may be related to the use of Personal Information under this Agreement.

15.4 In relation to Patient Data and Health Data specifically, you must obtain each Patient's consent as described in clause 4.3(b), and advise each Patient that their Personal Information, including Health Data, will be provided to us for the purpose of providing the Services.

15.5 We will handle Patient Data and Health Data in accordance with our Privacy Policy. Given the sensitivity of Health Data, we will notify you without undue delay of any actual or suspected data breach involving Patient Data or Health Data, to allow you to meet your own notification obligations under the Privacy Laws.

16. Confidentiality and publicity

16.1 Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:

  1. where permitted by this Agreement;
  2. with the prior written consent of the Discloser;
  3. where the Confidential Information is received from a third party, except where there has been a breach of confidence;
  4. on a confidential, “needs to know” basis to the Recipient’s personnel, auditors, insurers, agents, and professional advisors; or
  5. where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.

16.2 The Recipient must only use the Confidential Information of the Discloser for the disclosed purpose and in connection with this Agreement.

16.3 You acknowledge we may refer to you as a customer, and display your details on our Website, marketing portfolios, case studies, or in our promotional materials. You may ask that we stop doing this by emailing us. It may take up to 30 days to process your request.

17. Limitation of liability

17.1 To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, whether express or implied, statutory or otherwise, other than those set out in this Agreement.

17.2 You acknowledge that complex software is never wholly free from defects, errors and bugs, and subject to the other provisions of this Agreement, we give no Warranty or representation that the Services will be wholly free from defects, errors and bugs.

17.3 The Services is provided to you on an “as is” and on an “as available” basis without any Warranties arising out of any course of dealing or usage of trade. We disclaim all Warranties that the Services will be error-free, available continuously, uninterruptedly, or be free of harmful components, or that this Services and any User Data will be secure or not otherwise lost or altered. You acknowledge that we may suspend access to the Services temporarily if we have reason to do so (including but not limited to maintenance, updates, or upgrades). If the Services is unavailable you accept that you will have to submit claims directly with Eclipse yourself.

17.4 You acknowledge that the Services is dependent on other Third Party Services (including Eclipse) and agree that to the extent permitted by law, we will not be responsible or in any way liable for any defect or interruptions to the availability of the Services resulting from Third Party Services.

17.5 We are not liable to you or your patients for any rejection, delay, underpayment, or non-payment of an Order or claim by Medicare, Services Australia, a Health Fund, or Eclipse (whether or not caused by our Service), or for any consequence of inaccurate Patient Data or Health Data that you submitted or where the data was obtained by the Service scanning a patient label.

17.6 To the maximum extent permitted by law, our liability and the liability of our employees or agents for a breach of any Warranty or liability which by law cannot be excluded, restricted or modified, or under any express Warranty, is limited, at our option, to:

  1. the supplying of the services again; or
  2. the payment of the cost of having the services supplied again.

17.7 To the maximum extent permitted by applicable law and subject to clause 17.9, neither party will have any liability in connection with the Terms of Use for any Consequential Loss.

17.8 Subject to clause 17.9, each party's maximum aggregate liability for damages in connection with the Terms of Use is limited to the Fees you paid to us during the 12 month period before the event giving rise to liability.

17.9 Nothing in the Terms of Use excludes or limits either party's liability for:

  1. its fraud or fraudulent misrepresentation;
  2. its obligations under clause 18 (Release and indemnity);
  3. its infringement of the other party's Intellectual Property Rights;
  4. its payment obligations; or
  5. matters for which liability cannot be excluded or limited under applicable law.

17.10 All subclauses of this clause 17 are cumulative to one another.

18. Release and indemnity

18.1 Each party agrees to indemnify (and defend and hold harmless) the other party and its Affiliates from all Claims and or Loss arising in connection with:

  1. the indemnifying party’s failure to comply with any applicable laws; or
  2. the indemnifying party’s gross negligence or willful misconduct.

18.2 We agree to indemnify (and defend and hold harmless) you and your Affiliates from any Loss finally awarded as a result of a Claim brought by a third-party alleging that your use of the Services as contemplated in these Terms of Use directly infringes the Intellectual Property Rights of a third party, except to the extent any such infringement is caused or contributed to by your act or omission (IP Claim). If an allegation concerning a possible IP Claim is made, you must permit us to do one of the following (at our sole discretion):

  1. modify, alter or substitute the Services until the Services no longer infringes the Intellectual Property Rights alleged in the relevant IP Claim. Such modification will be at our cost; or
  2. terminate these Terms of Use, your access to the Services and/or our display of any advertisement.

18.3 You agree to indemnify (and defend and hold harmless) us and our Affiliates from any Loss or Claims in connection with:

  1. your breach of any of clauses relating to User Data (clause 13), Intellectual Property (clause 12), Confidentiality (clause 16), Privacy (clause 15) and Licence Restrictions (clause 3) of these Terms of Use; or
  2. your breach of clause 4.3(b) (Patient consent) or clause 4.2(d) (eligibility validation).

18.4 As conditions to indemnification under this clause 18, the indemnified party must:

  1. notify the indemnifying party promptly in writing of the Claim for which the indemnified party is seeking indemnification;
  2. grant the indemnifying party sole control over the defence and settlement of each Claim;
  3. provide the indemnifying party with reasonable cooperation in response to such party’s requests for assistance (including all relevant information or materials);
  4. not admit any fact, or settle or compromise a Claim, without the prior written consent of the indemnified party if such settlement includes an admission of liability on the part of the indemnified party; and
  5. use its best endeavours to mitigate any Loss the indemnified party suffers as a result of the Claim.

18.5 In this clause:

  1. Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
  2. Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
  3. Affiliates means a party’s officers, directors, shareholders, employees, consultants, agents, related body corporates and associates, affiliates, subsidiaries, related parties, sponsors, and other third-party partners.

19. Unexpected Event

19.1 Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Unexpected Event, this Agreement will continue and remain in effect, but the Affected Party will not be in breach of this Agreement for that reason only for so long as the Unexpected Event persists.

19.2 The Affected Party must promptly after becoming aware of an Unexpected Event, give written notice to the other party of the nature of the Unexpected Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Unexpected Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

20. General

20.1 All notices must be in writing and must be made by email: for you to the email you subscribed with and for us to: sales@freshclaim.com.au. Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day.

20.2 This Agreement, and the agreed commercial terms between us, will override any other terms or agreement between you and us.

20.3 Where there is a contradiction or conflict between different parts of this Agreement or any other arrangement between the parties, these Terms of Use override all other (to the extent of the contradiction or conflict).

20.4 You must not assign, sublicense or otherwise deal in any other way with any of your rights under this Agreement except as expressly permitted under this Agreement. We may assign, novate or otherwise transfer our rights and obligations under this Agreement at our sole discretion.

20.5 No breach of any provision of this Agreement can be waived except with the express written consent of the party not in breach.

20.6 Any provision of this Agreement that is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable unless this would materially change the intended effect of this Agreement.

20.7 With the exception of clauses 17.1 and 18, this Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.

20.8 This Agreement constitutes the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.

20.9 This Agreement is governed by and construed in accordance with the law of the State. The courts of the State have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

21. Definitions

21.1 In this Agreement, the following capitalised terms have the following meanings:

Agreement means these Terms of Use.

AHPRA means the Australian Health Practitioner Regulation Agency.

Authorised Users means the employees and staff members of the Client whom the Client authorises to use the Services in accordance with clause 6.

Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.

Client means a medical practitioner, medical practice, or clinic that registers to use the Services.

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 this Agreement, but excluding information which:

  1. is or becomes a matter of public knowledge through no fault, action, or omission of the Recipient or its personnel;
  2. is rightfully received by the Recipient from a third party without a duty of confidentiality;
  3. was already known to the Recipient at the time the disclosing party first made it available to the Recipient, except as a result of disclosure known by the Recipient to be made in violation of an obligation of confidence; or
  4. was independently developed by the Recipient without reference to the information of the disclosing party.

Without limitation, our Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, enablement procedures, documentation, pricing information, client and client records, as well as business, corporate, or trade information.

Consequential Loss includes any indirect loss, incidental loss, consequential loss, loss of profits, loss of revenue, loss of production, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, any remote loss, abnormal loss, unforeseeable loss, loss of use and/or loss or corruption of data, any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a party to this Agreement or otherwise).

Eclipse means the Electronic Claim Lodgement and Information Processing Service Environment, operated by Services Australia, used to submit claims and process payments for Medicare and Health Fund benefits.

Fees means the fee payable by you under clause 8.1, calculated on the value of paid Orders processed via the Services, and any other fees payable by you under this Agreement.

Gap Fee means the payment payable by a Patient in respect of an Order, being the difference between the cost of the drugs or services ordered and the amount reimbursed via Medicare, a Health Fund, or Eclipse.

Health Data means information or an opinion about an identified individual, or an individual who is reasonably identifiable, that relates to their health, disability, medical history, medical treatment, or health services provided to them, and includes any information collected to provide, or in providing, a health service. Health Data forms part of Patient Data and is treated as sensitive information under the Privacy Act, and may also be subject to applicable state or territory health records legislation.

Health Fund means a private health insurer registered under the Private Health Insurance (Prudential Supervision) Act 2015 (Cth) with which a Patient holds membership, and to which a claim may be submitted via the Platform.

Insolvent, in relation to a party, means when:

  1. a party ceases, suspends, or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
  2. a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend the payment of all or a class of its debts;
  3. a party becomes or is (including under legislation) deemed or presumed to be insolvent;
  4. a party has a receiver, manager, administrator, administrative receiver, or similar officer appointed in respect of it or the whole or any part of its assets or business;
  5. any composition or arrangement is made with any one or more classes of a party’s creditors;
  6. except for the purpose of solvent amalgamation or reconstruction, an order, application, or resolution is made, proposed, or passed for a party’s winding up, dissolution, administration, or liquidation;
  7. a party enters into liquidation whether compulsorily or voluntarily; or
  8. any analogous or comparable event takes place in any jurisdiction in relation to a party.

Intellectual Property Rights mean all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, Confidential Information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs).

Medicare means the Australian government scheme, administered by Services Australia, that provides for the payment of benefits in respect of certain health and medical services.

Operating Environment means your operating environment, facilities, systems, networks, devices, equipment, hardware, software, telecommunications, and connections.

Order means an order for pharmaceuticals or drugs that you compile and submit via the Services in respect of a Patient.

Patient means an individual who receives medical services from you, whose information is processed via the Services.

Patient Data means a subset of User Data comprising information about a Patient that is captured, input, or generated via the Services, including by scanning a patient label, and includes Health Data.

Permitted Use means for your ordinary business use, including to:

  1. capture information relating to a Patient (an individual who receives medical services from you), including by scanning a patient label;
  2. compile and submit an Order in respect of that Patient; and
  3. submit a claim for that Order to Medicare, Services Australia, and/or the relevant health fund via Eclipse (the electronic claiming system operated by Services Australia), and process any related Gap Fee payable by the Patient, in each case for your own patients and in the ordinary course of your medical practice.

Personal Information has the same meaning as in the Privacy Laws.

Platform means the FreshClaim application, software, and any associated website through which the Services are provided.

Privacy Laws mean the Privacy Act 1988 (Cth).

Privacy Policy means our Privacy Policy available at https://freshclaim.com.au/privacy-policy/.

Services means the Services provided by us via the Platform and under the terms of this Agreement, and includes any Support Services unless otherwise stated.

Services Australia means the Australian government agency responsible for administering Medicare and delivering government payments and services, including the operation of Eclipse.

Specifications mean the specifications of the Services as as published by us on our Website or within the Platform, as amended by us from time to time.

State means New South Wales.

Support Services means access to a general helpdesk during Business Days by phone or email to assist you in resolving technical issues or answering questions related to the Services during the Term of this Agreement. Any additional support services required by you may be provided at our sole discretion and may be subject to additional fees.

Tax includes a tax, levy, duty, or charge (and associated penalty or interest) imposed by a public authority. It includes income, withholding, stamp, and transaction taxes (including any goods and services tax or value-added tax, however named) and duties.

Terms of Use means these terms of use, as updated from time to time.

Third Party Services means a software, hardware, plugin, API, gateway, payment processor, network platform, solution, database, product or another service that is used for the provision of the Services or integrates with the Services, and which is provided, operated or controlled by a third party.

Unexpected Event means and includes such events, beyond the reasonable control of a party, that hinder, prevent or delay performance, in whole or in part, of any obligation under this Agreement including without limitation, fire, flood, casualty, earthquake, war, lockout, strike, epidemic, pandemics, riot, destruction of facilities, insurrection, material unavailability, telecommunications or internet failures, regulations or restrictions imposed by law, acts of the government or governmental requirements.

Update means any updates, modifications, changes or enhancements to the Services, including the adding or removing of any features or functionality, improvements, bug fixes and patches.

User Data means any content or materials whatsoever (including but not limited to any Personal Information, information, data, text, graphics, photos, designs, trademarks, or any other artwork) that you upload or input into the Services or that is generated by you using the Services, and includes, without limitation, Patient Data and Health Data.

Warranty or Warranties mean any warranties, conditions, terms, representations, statements, and promises of whatever nature, whether express or implied.

Website means http://freshclaim.com.au.