These terms and conditions (Terms) apply whenever you access or use the Victus Nutrition Platform (Software) and our services and is between Victus Health Trading Pty Ltd ACN 600 695 369 (Victus Health Trading) and you as the practitioner accessing the Software (You and Your where appropriate).

These Terms set out the terms and conditions upon which You may access and use the Software and our services. If You agree to these Terms, please click “I ACCEPT” and proceed with the sign up process. If You do not agree with these Terms, please click “I DECLINE” and the sign up process will progress no further.

From time to time, we may update these Terms (and will publish updated terms on the Website). By continuing to access or use the Software, you agree to be bound by these Terms as they exist at that time.

1 Licence

1.1 Grant of licence

Subject to Your compliance with these Terms, Victus Health Trading grants to You a non‑exclusive, non-transferable, revocable licence to access and use the Software and the Documentation in Australia in the manner specified in this agreement (Licence). You are not permitted to sub‑license those rights other than as permitted under clause 1.3.

1.2 Authorised users

You may grant a sub-licence of your rights under clause 1.1 to up to 5 practitioners from Your clinic if you have purchased a Multi-Practitioner Licence to the VH-Gold Founding Member Package, the Gold Standard Package, the Silver Standard Package or the Bronze Standard Package. If you have purchased a Student Package the Gold Starter Introductory Package or a Solo-practitioner licence to the FXMed Package, the NRD Package or the HCPT Package, or  are using a Free Software Trial, you are not permitted to sub-license the rights granted to you under these Terms.

You must notify Victus Health Trading immediately if You become aware of any unauthorised use of, or access to, the Software.

1.3 Access

Victus Health Trading will issue You a username and password that You must use to access and use the Software. This username and password is personal to You and You are liable for anything done in respect to the Software under Your username and password. You should keep these safe and confidential and report any suspected misuse to Victus Health Trading immediately. Victus Health Trading will issue Your patients/clients with a user name and password, upon your activation of their accounts. That they must use to access and use the Software.  Your patients/clients are liable for anything done in respect to the Software under their username and password. Your patients/clients should keep these safe and confidential and report any suspected misuse to Victus Health Trading immediately.

1.4 Restriction on use

All rights not expressly granted to You under these Terms are reserved. Without limiting the foregoing, You must not, directly or indirectly:

• modify, adapt, reverse disassemble, decompile or reverse engineer the whole or any part of the Software, merge the Software with any other software or otherwise attempt or allow any other party to attempt to discover the source code of the Software or to obtain the algorithms by which the Software performs its functions;
• in connection with the Software, use, share, upload, create or deal in any way with material that contains “viruses”, “trojan horses”, “copybots”,
  “worms”, spyware, “time bombs”, “cancelbots” or any other computer programs or codes that are intended to damage, interrupt, destroy, detrimentally
  interfere with or limit the functioning of the Software and other information used in connection with the Software;
• sublicense, rent, lease, re-sell or lend any portion of the Software save as provided under these Terms . For example, You must not embed the Software into another application and then distribute such to third parties;
• remove any proprietary notices from any copy of the Software;
• make any false, misleading or deceptive statement or representation regarding Victus Health Trading and/or the Software; or

use the Software to, or in any way that would, violate any applicable law, regulation or ordinance.

2 Payment

2.1 Payment terms

The Free Software Trial is provided on a fee-free basis. For all other licences, in order to access the Software, You agree to pay:

• a one-off Registration Fee prior to the Software being provided; and
• a monthly Subscription Fee, payable monthly in advance.

The Registration Fee and the Subscription Fees will be automatically deducted by direct debit and must be fully paid-up in order for You to access and use the Software for the relevant month. If you fail to pay the monthly Subscription Fee for a particular month, you will not be able to access to the Software.

2.2 Upgrade subscription

You may contact us at any time to upgrade Your Licence to include a greater number of patient/client profiles. If you elect to upgrade Your Licence, a higher Subscription Fee will be payable in accordance with the fee schedule provided by Victus Health Trading.

2.3 Additional modules

Victus Health Trading reserves the right to release additional software modules which it may offer to You for additional fees or which it may decide to provide You free of charge.

3 Maintenance

Victus Health Trading:

• will use reasonable endeavours to maintain the Software and enable access to it on a 24/7 basis;
• will use reasonable endeavours to let You know in advance of any planned maintenance to the Software that may affect Your access to the Software and try to limit planned maintenance to fall outside the hours of 9am – 5pm (Australian Eastern Standard Time) on a Working Day;
• may provide access to online help guides and other resources at its discretion;
• will provide telephone or email support during the business hours of 9am – 5pm (Australian Eastern Standard Time) on Working Days; and
• may discuss with You any training needs and provide any agreed training at its then current rates.

4 Indemnity

You agree to indemnify, hold harmless and defend Victus Health Trading and its officers, directors, employees and agents (collectively, the Indemnified Parties) at Your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Victus Health Trading arising out of or relating to Your:

• violation or breach of these Terms;
• misuse of the Software; or
• treatment of patients using the Software.

5 Liability

5.1 Disclaimer of warranties

To the maximum extent permitted by law (and without limiting your rights under the Competition and Consumer Act 2010 (Cth)) and subject to clause 5.2:

• The Software is provided “as is” and to the maximum extent permitted by law there are no warranties, claims or representations made by Victus Health Trading, either express or implied, with respect to the Software, including any warranties of compatibility with particular hardware or software or non‑infringement, nor are there any warranties created by course of dealing, course of performance, or trade usage. Victus Health Trading further does not represent or warrant that the Software will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error‑free, will operate without loss of the underlying data, or will be unhackable or unencryptable.
• You acknowledge that the entire risk arising out of the use or performance of the Software remains with You.
• No oral or written information or advice given by Victus Health Trading, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.
• Victus Health Trading makes no therapeutic claims in relation to the Software and You are responsible for any diagnosis or treatment
  plans made by, or arising out of, Your use of the Software.

5.2 Limitation of liability
To the maximum extent permitted by law and subject to clause 5.3, in no event will:

• Victus Health Trading be liable for any lost profits or business opportunities, loss of use, loss of revenue, loss of goodwill, business interruption, loss of data, or any other indirect, special, incidental, or consequential loss or damages, whether based in contract, tort, negligence, product liability, or otherwise resulting from:

1. Your access to, or use of, the Software or the Documentation; or
2. Your inability to access or use the Software or the Documentation.

• Victus Health Trading’s liability under these Terms exceed the Subscription Fee paid by You in the year in which the liability arises.

The foregoing limitations shall apply regardless of whether Victus Health Trading has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.

• 3 Non-excludable liability Notwithstanding clause 5.2, in relation to any liability arising under any of the non-excludable statutory guarantees arising in the Competition and Consumer Act 2010 (Cth), Victus Health Trading’s liability is limited to: in the case of any goods, any one or more of the following:

1. the replacement of the goods or the supply of equivalent goods;
2. the repair of the goods;

• the payment of the cost of replacing the goods or of acquiring equivalent goods; or

1. the payment of the cost of having the goods repaired; and

• in the case of any services:

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

6 Intellectual Property6.1 Ownership of intellectual property rights

• (a) You acknowledge that any and all intellectual property rights which subsist in or arise in connection with the Software or the Documentation (including any modifications or updates thereto) anywhere in the world are owned by Victus Health Trading (or its licensors). You will have no right in or to the Software or the Documentation save the right to use it as permitted by these Terms. Victus Health Trading acknowledges that any and all intellectual property rights which subsist in or arise in connection with Your Data are owned by You (or your patients).
• To the extent that any benefit or right in the intellectual property rights in the Software or Documentation subsists in You, You agree to assign all such benefits and rights to Victus Health Trading immediately upon creation.

6.2 Warranty

You represent and warrant that:

• You own, or have the necessary right, title and interest to, Your Data to perform Your obligations under this agreement;
• Victus Health Trading’s use of Your Data in accordance with these Terms will not infringe any third party rights, including intellectual property rights; and
• You are not in breach of any laws, including the Privacy Act 1988 (Cth) by inputting Your Data onto the Software.

 

7.1 Your responsibility

You are responsible for Your Data and for obtaining the necessary consents from Your patients to collect and input their information using the Software as well as obtaining from Your patients consent to Victus Health Trading collecting their personal information and storing it in a de‑identified manner for the purposes of the advancement of medical research. Victus Health Trading is not responsible for the accuracy or retention of any of Your Data, so it is recommended You keep a back‑up copy in paper form or otherwise.

7.2 Privacy

You agree to comply with the provisions of the Privacy Act 1988 (Cth) and the relevant health privacy legislation for your State or Territory (for example, in NSW, the Health Records and Information Privacy Act 2002 (NSW)) when using the Software and providing Your Data.

8 Confidentiality

8.1 Victus Health Trading’s Confidential Information

You must:

• maintain the confidentiality of the Confidential Information; and
• not, without the prior written consent of Victus Health Trading:
  1. use the Confidential Information except as necessary for You to use the Software and Documentation as permitted under these Terms.
  2. disclose the Confidential Information, other than to those of Your officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these Terms provided that such persons agree in writing to comply with the obligations of confidentiality no less onerous than those set out in this clause.

8.2 Notice of unauthorised disclosure

You will give notice to Victus Health Trading of any unauthorised misuse, disclosure, theft or other loss of Victus Health Trading’s Confidential Information immediately upon becoming aware of the same.

8.3 Exceptions to Confidential Information

The provisions of this clause 8 will not apply to information which:

• is or comes into the public domain through no fault of You, Your officers, employees, agents or contractors;
• is lawfully received by You from a third party free of any obligation of confidence at the time of its disclosure; or
• is independently developed by You, Your officers, employees, agents or contractors.

8.4 Survival of obligations

The obligations under this clause 8 will survive the variation, expiry or termination of these Terms.

9 Term and termination

9.1 Term

This agreement will commence on the date You accept these terms by clicking on the “I ACCEPT” button and will continue until You cancel your licence, unless terminated earlier under this clause 9. Refunds may be made at the discretion of Victus Health Trading up to 7 days after the date upon which you accept these terms by clicking on the “I ACCEPT” button, provided a reason acceptable to Victus Health Trading is given.

The Licence granted in clause 1.1 will remain in force for the term of this agreement (unless you are using a Free Software Trial, in which case the Licence will expire 24 hours after you first access the Software).

9.2 Termination by Victus Health Trading

Victus Health Trading may terminate this agreement (and the Licence granted by clause 1.1) at any time immediately upon notice to You:

• if Victus Health Trading is, or considers that it will become, unable to provide the Software;
• if You commit a breach of these Terms (other than a breach of clause 8) which You fail to remedy within 30 days of receiving notice requiring You to do so;
• if You commit a breach of clause 8; or
• if You or Victus Health Trading suffer a Termination Event.

9.3 Termination without prejudice to accrued rights

Termination will be without prejudice to the rights of either party which have accrued prior to termination.

9.4 Effects of Termination

Upon termination for any reason:

• all rights granted to You under these Terms, including Your access to and right to use the Software, will cease;
• You will immediately cease all activities authorised by these Terms;
• You will immediately pay to Victus Health Trading any sums due to Victus Health Trading under these Terms;
• within 7 days of such termination, You will destroy or return (at Victus Health Trading’s option) to Victus Health Trading all copies of the Confidential Information then in Your possession, custody or control and, in the case of destruction, certify to Victus Health Trading that You have done so;
• provided that Your Subscription Fee and any sums due to Victus Health Trading are fully paid up, You will be permitted to download all of Your Data stored using the Software; and
• Victus Health Trading will retain a copy of all de‑identified data collected from Your Data which it will use for the purposes of further medical research

10 Assignment

10.1 No Transfer or assignment by You

You may only assign or transfer this agreement or any of Your rights or obligations under it (including, without limitation, for facilities management or outsourcing purposes) if You:

• provide prior written notice to Victus Health Trading of such assignment or transfer; and
• provide Victus Health Trading with a signed written notice from the third party to whom the agreement is being transferred or assigned, assuming all of Your obligations under this agreement.

10.2 Transfer or assignment by Victus Health Trading

There are no restrictions on the assignment or transfer of Victus Health Trading’s rights and obligations under these Terms.

11 Notice

Any notices and other communications required or permitted to be given by You under these Terms must be in writing and must be delivered or transmitted to Victus Health Trading’s address as specified below or such other address as Victus Health Trading may notify to You from time to time. Any notice will be treated as having been served on delivery if delivered by hand, three Working Days after posting if sent by pre-paid first class post and, in the case of email or facsimile, upon receipt by You of confirmation of transmission if confirmation is received before 5pm on a Working Day or otherwise at the commencement of the first Working Day following transmission.

Address:

Victus Health Trading
Suite 8/3-5 Balinger Road
PO Box 1931
Buderim, QLD 4556
Australia

 

12 Force Majeure

Victus Health Trading will not be liable for any delay or failure to perform its obligations under these Terms to the extent that, and for so long as, such delay or failure results from circumstances beyond Victus Health Trading’s control. If any event of force majeure continues for a period exceeding two months, Victus Health Trading will have a right to terminate this agreement immediately on written notice to You.

13 Governing Law

This agreement will be governed by the laws in force in the State of Queensland, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland, Australia and the Federal Court of Australia. This clause 13 survives the expiration or termination of this agreement.

14 General

14.1 Waiver

The failure of either party to enforce or to exercise any term of this agreement does not constitute a waiver of such term and will in no way affect that party’s right later to enforce or to exercise it.

14.2 Severability

The invalidity or unenforceability of any term of, or any right arising pursuant to, this agreement will not affect the validity or enforceability of the remaining terms of rights.

14.3 Entire agreement

These Terms contain all the terms agreed between the parties regarding its subject matter and supersede any prior agreement, understanding or arrangement between them whether oral or in writing.

14.4 Survival

Terms of this agreement which are either expressed so as to survive expiry, variation or termination of this agreement or from their nature or context it is contemplated that they are to survive expiry, variation or termination, will remain in full force and effect notwithstanding expiry, variation or termination.

14.6 Dispute resolution

• The parties agree that if any dispute arises between them in relation to this agreement, they will use their best endeavours to resolve the dispute in a spirit of good faith and on a commercially realistic basis by mutual negotiation, or by mediation prior to commencing litigation.
• Any mediator shall be an independent person chosen by the parties or nominated at the request of the parties or either of them by the Australian Disputes Centre and conducted in accordance with the Mediation guidelines set out by the Australian Disputes Centre. Each party shall bear its own costs. The costs of the mediator shall be borne by the parties equally.
• Nothing in this agreement shall prevent either party from seeking interlocutory relief in any event, or from commencing legal proceedings against the other in the event that mediation is unsuccessful. Parties must enter into mediation before starting legal proceedings (other than seeking interlocutory relief.

 

15 Definitions and interpretation

15.1 Definitions

In these Terms, where the context so admits, the following words and expressions will have the following meanings:

 Confidential Information means information (whether in oral, written or electronic form) belonging or relating to Victus Health Trading, its business affairs or activities which is not in the public domain and which (i) Victus Health Trading has marked as confidential or proprietary; or (ii) Victus Health Trading, orally or in writing has advised You is of a confidential nature; or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would understand is confidential.

Documentation means the standard user documentation for the Software, the latest version of which is available from Victus Health Trading’s website from time to time.

Registration Fee means the fee payable by You to Victus Health Trading for establishing the Software for You, in accordance with the fee schedule for the Subscription Licence selected for purchase by You and provided to You by Victus Health Trading during your Free Software Trial.

Subscription Fee means the monthly fee payable by You, to Victus Health Trading, for the Software Package Licence you have selected and in accordance with the fee schedule provided to you by Victus Health Trading during Your Free Trial of the Package of Software.

Termination Event means an event where a party ceases to do business, becomes unable to pay its debts when they fall due, becomes or is deemed bankrupt or insolvent, has a receiver or manager or administrator or administrative receiver or similar officer appointed in respect of the whole or any part of their assets or business, makes any composition or arrangement with their creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for their dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), or enters into liquidation whether compulsorily or voluntarily.

Website means www.victushealth.com.

Working Days means Monday to Friday excluding public and bank holidays in Queensland, Australia.

Your Data means the information You input using the Software, including, but not limited to, information about Your patients.

15.2 Interpretation

In this agreement:

(a) clause headings do not form part of or affect the interpretation;

(b) references to any legislation will include any statutory, or other re-enactment or modification thereof (whether before or after the date of this agreement);

(c) where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders;

(d) references to clause numbers are to clauses in this agreement so numbered; and

(e) references to parties include references to their respective successors in title, permitted assigns and novatees.