Instinctive Notes Terms of Service
Welcome to Instinctive Notes, an online clinical note taking application designed specifically for Allied Health Practitioners provided by Instinctive 3 Pty Ltd. These Terms of Service are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.
These Terms are binding on any use of the Service and apply to You from the time that Instinctive 3 provides You with access to the Service.
By registering to use the Service You acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom You use the Service.
"Agreement" means these Terms of Service.
"Application" means a computing application provided for use on a Computing Device which communicates Data with the Service. "Applications" has a corresponding meaning.
"Computing Device" Includes, but is not limited to, all computers, notebooks, mobile Internet access devices, smart phones, tablets or any other device which is able to access the Service and accept and provide Data
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" means any information provided by You, or an Invited User with Your authority, to the Service through an Application or Website.
"Instinctive 3 or the Company" means Instinctive 3 Pty Ltd, incorporated in Australia, and all current and future subsidiaries of Instinctive 3 Pty Ltd
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User" means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber.
"Service" means the online clinical note taking services (or other services as changed or updated from time to time) provided by Instinctive 3 and made available through an Application or the Website. "Services" has a corresponding meaning.
"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Terms" means this agreement.
"You" means the Subscriber to the Service, and where context permits, an Invited User. "Your" has a corresponding meaning.
Your Agreement with Instinctive 3
2.1 Your use of the Instinctive Notes Service provided by Instinctive 3 is governed by this agreement and all containing terms.
2.2 In order to use the Services You must first agree to the Terms. You can agree to the Terms by actually using the Services. You understand and agree that Instinctive 3 will treat Your use of the Services as acceptance of the Terms from that point onwards.
2.3 You agree Your purchases of the Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Instinctive 3 or any of its affiliates regarding future functionality or features.
Your Account and Use Of Instinctive 3 Services
3.1 Instinctive 3 grants You the right to access and use the Service via the Website or Applications according to Your Subscription type.
3.2 You must provide accurate and complete registration information any time You register to use the Services. You must keep Your registration information up to date.
3.3 The Subscriber determines who is an Invited User and what level of user role access to the Service that Invited User has. If there is any dispute between a Subscriber and an Invited User regarding access to the Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
3.4 Instinctive 3 will endeavour to make the Service available 24 hours a day, seven days a week. However, You acknowledge and agree that the Service may occasionally be unavailable during periods of planned or unscheduled maintenance. Instinctive 3 may perform unscheduled maintenance at any time, but will do this outside of normal business hours where possible.
3.5 Instinctive 3 reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
4.1 You must only use the Service, Applications and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Instinctive 3 or condition posted on the Website. Any use must comply with all applicable laws, rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights.
4.2 You are solely responsible and liable for any activity that occurs and all Data entered under Your user name or the user names of any Invited User. You warrant that You have all rights, licences, authorisations and consents required to use the Service, including without limitation in respect of Your Data. You must not enter Data into the service which is in violation of any law.
4.3 You must use all reasonable endeavours to prevent any unauthorised access to or use of the Service. You are responsible for keeping Your passwords and the devices You use to access the Service secure to ensure there will be no unauthorised access. You must notify Instinctive 3 immediately in the event of any unauthorised access or use. Any unauthorised use of the Service is a violation of these Terms of Service and may breach Commonwealth, State or Territory laws. Instinctive 3 will not be liable for any loss or damage from Your failure to comply with this security obligation.
4.4 You must not attempt to misuse, undermine the security of or attempt to cause damage to the Service or any underlying computing systems, networks or third party services used to deliver the Services or impair the ability of any other user to use the Services.
4.5 You may not access the Services for the purpose of bringing an intellectual property infringement claim against Instinctive 3 or for the purpose of creating a product or service competitive with the Services.
4.6 As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, blog comments, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive or defamatory to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
4.7 When You make any communication on the Website, You represent that You are permitted to make such communication. Instinctive 3 is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with other web tools, You must exercise caution when using the communication tools available on the Website. However, Instinctive 3 reserves the right to remove any communication at any time in its sole discretion.
Fees for use of the Services
5.1 A valid credit card is required for access to the Services beyond any agreed free trial period.
5.2 All credit card details are processed with secure connections. Credit cards are not stored within the Instinctive Notes application. Credit card details are stored at a trusted and secure payment processor used by the Company for processing credit card transactions.
5.3 Your account will be billed automatically every month starting one month after the account was initially created. If You cancel prior to the first monthly bill You will not be charged.
5.4 The Service is billed in arrears on a monthly basis for the service and usage provided in the previous month. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
5.5 All fees stated are exclusive of taxes, levies or duties imposed by the tax authorities and You agree to pay to Instinctive 3, or the relevant taxing authority as appropriate, any applicable taxes. If Your company is liable to pay GST, You will be responsible for paying GST on top of the subscription fees.
5.6 The Services are provided on the basis of plan levels each with a corresponding price and provided features. Plan levels may be automatically calculated based on usage or may require selection by You. Where plans require selection by You some features may be based on usage and if You exceed usage levels You must upgrade to a higher plan level to ensure continuation of Service. The Company will notify You if You exceed the usage limits on Your selected plan.
5.7 For any upgrade or downgrade in plan level, Your credit card that You provided will automatically be charged the new rate on Your next billing cycle. The benefits of the new plan level will be immediately applied. Changes to plan levels are monitored to ensure no misuse of the service and identified misuse is a breach of these Terms.
5.8 Downgrading Your Service may cause the loss of Content, features, or capacity of Your Account. Instinctive 3 does not accept any liability for such loss.
5.9 Failure to pay for the Service due to issues with credit card processing may result in account suspension. You will be notified if any payment failures occur.
5.10 Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice from Instinctive 3. Such notice may be provided at any time by email or posting the changes to the Service or Website.
Confidentiality And Privacy
6.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other or unless required to do so by law, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
a. Each party's obligations under this clause will survive termination of these Terms.
b. The provision of clause 6.1 shall not apply to any information which:
i. is or becomes public knowledge other than by a breach of this clause;
ii. is received from a third party who lawfully acquired it and who under no obligation restricting its disclosure;
iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
iv. is independently developed without access to the Confidential Information.
6.2 Instinctive 3 will restrict access to Your Confidential Information or Data to only those employees, associates or third parties who require access to provide the Service. Employees, associates or third parties of Instinctive 3 who are also operating health professionals will never have access to Your Confidential Information or Data unless instructed by You to allow it.
7.1 You acknowledge and agree that Instinctive 3 owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7.2 Instinctive 3 gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Services as provided to You by Instinctive 3. This license is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by Instinctive 3, in the manner permitted by the Terms.
7.3 You may not (and You may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told in writing that You may do so by Instinctive 3; or (b) attempt to disable or circumvent any security mechanisms used by the Service.
7.4 Instinctive 3 claims no ownership or control over You Data. You retain copyright and any other rights You already hold in the Data, and You are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Data on or through the Services or Applications You give Instinctive 3 a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Instinctive 3 to provide You with the Services.
7.5 Your access to Your Data is contingent on full payment of the Instinctive 3 fees for use of the Services.
7.6 If You enable third-party applications for use in conjunction with the Services, You acknowledge that Instinctive 3 may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Instinctive 3 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
7.7 You may choose to or we may invite You to submit comments or ideas about the Services, including without limitation about how to improve the Instinctive 3 Services, applications or other products. By submitting any idea, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place Instinctive 3 under any fiduciary or other obligation, and that we are free to use the idea without any additional compensation to You, and/or to disclose the idea on a non-confidential basis or otherwise to anyone.
7.8 You agree that Instinctive 3, in its sole discretion, may use Your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to Your website) for the purpose of advertising or publicizing Your use of the Instinctive 3 Services.
8.1 You are solely responsible for the cancellation of Your account and may cancel at any time through the account area of the Website. Email or phone requests are not considered cancellation.
8.2 All of Your account Data will be deleted 90 days after cancellation or termination of Your account. You should request an export of Your Data in order to retain information You require.
8.3 Failure to pay the fees for the Service will result in account suspension with all access revoked. Your account will remain in suspension for 90 days before it is terminated. You agree that Instinctive 3 will not be held liable for any loss You suffer as a result of such suspension or termination. A suspended account can be reactivated by supplying valid payment credentials and resuming Your subscription.
8.4 When cancelling an account billing will end immediately and You will not be charged again. Your account will remain open for one full month after your last billing date to allow for downloading of any Data the Company is storing for You. You will not be charged for any usage during this final period. You will not be entitled to any refunds of previous months payments as they represent services already delivered.
8.5 If You breach the Terms and do not remedy the breach within 14 days or You become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction then Your account will be placed into suspension, with all access revoked. Your account will remain in suspension for 90 days before it is terminated. You agree that Instinctive 3 will not be held liable for any loss You suffer as a result of such suspension or termination.
8.5 Instinctive 3 at its sole discretion has the right to suspend or terminate Your account and refuse any and all current or future use of the Service, for any reason, at any such time. Such termination can result in the deactivation or deletion of Your account. Instinctive 3 reserves the right to refuse Service to anyone for any reason at any time. You agree that Instinctive 3 will not be held liable for any loss You suffer as a result of such suspension or termination.
8.6 Upon any termination of the Services or Your account these Terms will also terminate, but Sections 6, 7, 8, 9, 10, 11 and 12 shall continue to be effective after these Terms are terminated.
9.1 Legislation may impose consumer guarantees or implied rights which cannot be excluded, restricted or modified except to a limited extent ("Statutory Rights"). These Terms of Service must be read subject to Your Statutory Rights. If Statutory Rights apply, to the extent to which Instinctive 3 is able to do so, its liability under those provisions will be limited, at its option, in the case of services to (a) the supplying of the services again or (b) the payment of the cost of having the services supplied again and, in the case of goods to (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of the goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired.
No Warranties or Representations
10.1 Nothing in these Terms, including Sections 9 and 10, shall limit Your Statutory Rights.
10.2 You expressly understand and agree that Your use of the Instinctive 3 Service is at Your sole risk and that the Instinctive 3 Services are provided "as is" and "as available".
10.3 Instinctive 3, its subsidiaries and affiliates, and its licensors make no express warranties and disclaim all implied warranties or representations regarding the Services, including implied warranties of merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, Instinctive 3, its subsidiaries and affiliates, and its licensors do not represent or warrant to You that: (a) Your use of the Instinctive 3 Services will meet Your requirements, (b) Your use of the Instinctive 3 Services will be uninterrupted, timely, secure or free from error, (c) Your Data will be available or free from error and (d) usage data provided through the Instinctive 3 services will be accurate.
10.4 Instinctive 3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.5 You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website, the Applications or these Terms.
Limitation Of Liability
11.1 To the maximum extent permitted by law, You expressly understand and agree that Instinctive 3, its subsidiaries, affiliates and licensors, excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise for any direct, indirect, incidental, special consequential or punitive damages which may be incurred by You, however caused and under any theory of liability from any use of, or reliance on, the Service, Applications or Website. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss or corruption of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
11.2 If You suffer loss or damage as a result of Instinctive 3's negligence or failure to comply with these Terms, any claim by You against the Company arising from Instinctive 3's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous 12 months.
11.3 If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
12.1 You agree to indemnify, defend, and hold harmless Instinctive 3, and its subsidiaries, affiliates, directors, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Instinctive 3 and Partners") from and against any third party claim arising from or in any way related to (a) Your breach of the Terms, (b) Your use of the Services, (c) Your violation of applicable laws, rules or regulations in connection with the Services, or (d) Your Data, including any liability or expense arising from all claims, losses, damages (actual and consequential), expenses, suits, judgements, litigation costs and attorneys' fees, of every kind and nature. In such a case, Instinctive 3 will provide You with notice via email of such claim, suit or action.
Changes to the Terms
13.1 Instinctive 3 may make changes to the Terms from time to time.
13.2 Instinctive 3 will communicate these changes to You via notification on this Website.
13.2 If we change the Terms in any substantive way, we will give You at least seven (7) days notice before the changes take effect, during which period of time You may reject the changes by terminating Your account.
13.3 You understand and agree that if You use the Instinctive 3 Services after the date on which the Terms have changed, Instinctive 3 will treat Your use as acceptance of the updated Terms.
General Legal Terms
14.1 The Terms constitute the entire legal agreement between You and Instinctive 3 and govern Your use of the Services and other matters dealt with in these Terms (but excluding any services which Instinctive 3 may provide to You under a separate written agreement), and completely replace any prior agreements (whether oral or written) between You and Instinctive 3 in relation to the Services.
14.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
14.3 If Instinctive 3 provides You with a translation of the English language version of these Terms, the English language version of these Terms will prevail if there is any conflict.
14.4 You agree that Instinctive 3 may provide You with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services. By providing Instinctive 3 Your email address, You consent to Instinctive 3 using the email address to send You any notices required by law in lieu of communication by postal mail.
14.5 Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Instinctive 3 must be sent to the firstname.lastname@example.org email address. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
14.6 You agree that if Instinctive 3 does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Instinctive 3 has the benefit of under any applicable law), this will not be taken to be a formal waiver of Instinctive 3's rights and that those rights or remedies will still be available to Instinctive 3.
14.7 If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. All other clauses of this Agreement will remain binding on the parties.
14.8 Instinctive 3 shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures, and Internet disturbances.
14.9 You may not assign or transfer any of Your rights or obligations under these Terms to any other person or entity without Instinctive 3's prior written consent.
14.10 This Agreement is governed by the laws of the state of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.