User Terms - Service Providers
Effective Date: 11 November 2020
Part A: Roles and responsibilities
1 These User Terms
1.1 Medipass Solutions Pty Ltd ABN 21 615 345 536 and its subsidiaries (Medipass, We, Our or Us) provide the digital health payment solution referred to as “Medipass”, together with its websites, APIs, and software programs or functionalities (the Service).
1.2 These User Terms set out the terms by which a Service Provider is permitted to access and use the Service. Any reference to ‘You’ or ‘Your’ is a reference to a Service Provider. These User Terms do not apply to patients or other individuals who make a payment for goods or services via the Service (Consumers). The user terms that apply to Consumers are located here.
1.3 You acknowledge and agree that Your access to, or use of, the Service constitutes Your acceptance of these User Terms and the contract that they form between You and Us.
1.4 The Service is provided to You in a way which integrates with a number of third parties, including private health funds, government agencies and schemes, insurance agencies, or other health payment programs (Third Party Partners). Depending on how You engage with the Service, You may utilise software applications or functionalities and websites that are powered by Medipass but provided by Third Party Partners. These User Terms do not substitute or replace the terms and policies of any Third Party Partners, which must be separately agreed to by You before utilising any such integrations, functionalities or websites.
2 Your access
2.1 Subject to these User Terms and any other written agreement between You and Us, We grant You a personal, limited, non-exclusive, revocable, non-transferable licence to access and use the Service via an Approved Account.
2.2 You must comply with the following requirements for Your access to and Use of the Service at all times:
(a) You must not use the Services in connection with any product, service, transaction or activity that:
(i) violates any law or government regulation, or promotes or facilitates such by third parties;
(ii) is fraudulent, deceptive, unfair or predatory;
(iii) causes or threatens reputational damage to Us or any Third Party Partners; and
(b) unless otherwise expressly provided for by these User Terms, You must not:
(i) use, download, upload, reproduce, copy, duplicate, print, display, perform, republish, sell, license, post, transmit, disseminate, redeliver using “framing technology,” otherwise distribute, or commercially exploit in any way the technological platform or any information or content which comprises or relates to the Service, without Our prior written permission;
(ii) process or attempt to process illegitimate transactions or those outside the standards and rules applicable to Third Party Partners;
(iii) engage in unauthorised access to the Service through a third party application, API, robot, spider or automated device;
(iv) access or attempt to access any protected portions of the Service without authorisation or through any means other than by submitting Your authorised password or access code for Your Approved Account on the appropriate web page or application;
(v) engage in data mining or extraction tools or other unauthorised means of obtaining information from the Service; or
(vi) engage in actions that impose an unreasonable load on, or interfere with, the Service.
3 Your warranties
3.1 You represent and warrant to Us that:
(a) You have the full power and authority to enter into and perform Your obligations under these User Terms on behalf of the Service Provider, and have taken all necessary actions to authorise the acceptance and performance of these User Terms by the Service Provider;
(b) You will be solely responsible for ensuring the Service Provider’s own compliance with any regulatory requirements which might apply to or in connection with its use of the Service; and
(c) the acceptance and performance by You of these User Terms does not and will not contravene any applicable laws and regulations, or cause the Service Provider to infringe the rights of any third parties or be in breach of any obligations to a third party.
4 Our provision of the Services
4.1 You are solely responsible for determining that the Service meets the needs of Your business and is suitable for the purposes for which it is, or is intended to be, used by You.
4.2 One of the functionalities of the Service (subject to these User Terms) is to enable You to initiate claims or other requests for benefits to certain Third Party Partners. You acknowledge and agree that:
(a) a Third Party Partner may choose to limit or revoke Your ability to submit claims or requests via the Service in line with Your agreement with them, and We provide no representations or warranties in this regard;
(b) You must obtain the appropriate consent of any Consumers before You submit a claim for a payment, or seek a benefit from, a Third Party Partner via the Service on their behalf. In addition to permitting the submission, such consent must also permit the disclosure of the Consumer’s Personal Information to that Third Party Partner; and
(c) where We do not intermediate payments on behalf of a Third Party Partner, or where We intermediate payments by the Third Party Partner to You but do not receive the full amount due to You from the Third Party Partner in cleared funds, We do not accept or assume any liability for payment to You.
4.3 You acknowledge and agree that:
(a) the Services are provided on an “as is” or “as available” basis, and We make no representations or warranties, express or implied, to You that they will meet Your specific requirements or be uninterrupted, timely or error free;
(b) the information, software, products, and services included in or available through the Service may include inaccuracies or typographical errors;
(c) we may modify, upgrade or change the Service, including altering the content, presentation, features or functionalities of or within the Service, at any time and without giving You notice;
(d) any advice received via the Service should not be relied upon for personal, financial or legal decisions and You should consult an appropriate professional for specific advice tailored to Your situation; and
(e) despite any other provision of these User Terms, We:
(i) may delay or reject any Transactions that We consider to be potentially fraudulent or unauthorised; and
(ii) reserve the right, in Our sole discretion, to refuse to complete any Transaction that We suspect to be unauthorised or in potential violation of any law, rule, regulation or these User Terms, or if We otherwise have reasonable cause not to honour it.
Part B: Fees and transactions
5.1 The Service Provider must pay the Fees to Medipass for each Eligible Transaction that is initiated by, or raised in relation to, the Service Provider’s provision of goods or services.
5.2 The Fees must be paid on a monthly basis, in arrears. The Fees will be charged to the Service Provider’s nominated credit card on the first Business Day of each calendar month for all Eligible Transactions that were processed during the preceding calendar month.
5.3 By using the Service via Your Approved Account, You:
(a) warrant that You have provided Us with accurate and complete information in relation to your nominated credit card; and
(b) authorise Us to charge Your nominated credit card in accordance with this section 5.
5.4 We may change the Fees at any time:
(a) at Our sole discretion, by giving You at least 21 days’ notice; or
(b) without notice, if required by law, or if any regulatory authority requests or requires a change to any part of Our Service which directly impacts the Fees (if this occurs We will aim to provide You with reasonable notice).
5.5 You acknowledge that any termination of these User Terms or cancellation of an Approved Account will not result in a waiver of Your existing payment obligations or a refund of Fees already incurred.
6 Invoicing and taxes
6.1 We will send You monthly invoices by email to Your nominated email address for any Fees which are charged in accordance with section 5.
6.2 Unless stated otherwise, all fees (including the Fees) are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including goods and services tax (GST) (collectively referred to as Taxes).
6.3 You are responsible for paying all Taxes. If any payment You make to Medipass is subject to withholding Taxes by any government, You must reimburse Medipass for those withholding Taxes.
7 Referral arrangements
7.1 Medipass may enter into arrangements with third parties who We pay fees to for their referral of customers to Us, typically in relation to third party software integrations. Any such payments are not an additional cost to Service Providers and are paid for by Us.
8 Medipass Settlement Services
8.1 This section 8 applies to any Service Providers who utilise the Medipass Settlement Services.
8.2 By utilising the Medipass Settlement Services, You authorise and instruct Us to:
(a) receive payment in full or in part of the price of any goods or services purchased from You by a Consumer or other third party (the Price), and to hold this in Our bank account on Your behalf;
(b) pay the Price received by Us into the Approved Financial Account;
(c) debit from the Approved Financial Account any monies required to discharge Your obligations under these User Terms, including this section 8; and
(d) make debit and credit entries, which can be viewed via Your Approved Account, to reflect the collection and payment to the Service Provider of the Price received and the collection and payment to Medipass of any Fees.
8.3 We are not responsible for the withholding or payment of any Taxes imposed in connection with the Medipass Settlement Services.
8.4 We will pay the Price to You at such times as agreed between the parties, and by any means deemed appropriate by Us. While We will take reasonable steps to process payments as expeditiously as possible, We do not accept liability for any Loss which is incurred due to a delay in payment processing.
8.5 Where We intermediate payments on behalf of a Third Party Partner, We are not required to make payment to You until We have received the full amount due to You, in cleared funds, from the Third Party Partner.
8.6 In relation to Our receipt and holding of the Price on Your behalf, You acknowledge and agree that You:
(a) will not receive interest or any other earnings on funds which are held on Your behalf in Our bank account;
(b) by utilising the Medipass Settlement Services, irrevocably assign to Us all rights and legal interests to any interest or other earnings that accrue or are attributable to any of Your funds; and
(c) will have an allocated amount held for You within Our bank account. This reflects the amount of the Price as is received by Us.
8.7 You are solely responsible for the accuracy and completeness of all information You provide to Medipass in relation to Your Approved Financial Account and any related account information. You agree that We are not responsible for any depositing of funds into an incorrect account which occurs due to the information You have or have failed to provide to Us (and You release and indemnify Us from any Loss suffered in relation to such an act or omission).
8.8 We have sole discretion over the establishment and maintenance of Our bank accounts, and You acknowledge and agree that the Price may be comingled in Our bank account with monies held by Us for Our other customers and also with Our own corporate funds.
8.9 We may, in Our absolute discretion, use any third party payment systems and service that We consider appropriate to debit and process payments and collect monies for the purposes of the Medipass Settlement Services.
8.10 To the extent allowed by applicable law, You grant Us a security interest or right of set-off against any funds held on Your behalf in Our bank account including any pending Price that We are to receive. You agree to execute and deliver any documents necessary to perfect and enforce any security interest.
9 Medipass Card Payments
9.1 This section 9 applies to any Service Providers who utilise the Medipass Card Payments component of the Service.
9.2 You acknowledge and agree that You must not use the Medipass Card Payments functionalities in connection with any product, service, transaction or activity that:
(a) violates any rule or regulation of any electronic funds transfer network, including but not limited to Visa and Mastercard (each a Card Network);
(b) involves any of the Restricted Business Categories; or
(c) results in or creates a significant risk of Refunds, Transaction Funds Reversals, penalties, damages or other harm or liability.
9.3 In relation to any Transaction Funds Reversals, Refunds or a dispute, You acknowledge and agree that:
(a) if a Transaction is disputed, or a Transaction Funds Reversal or Refund is being sought, You will be fully liable for the dispute, reversal or refund of the Price and any associated fees or fines;
(b) You will be bound by any payment industry or banking rules, and must take all reasonable steps to resolve any dispute in a timely manner including a dispute involving a Transaction Funds Reversal or Refund;
(c) if a Refund is being sought, You must provide timely instructions to Us directly;
(d) if the payment industry or banking rules and regulations require the Transaction Funds Reversal, We are automatically instructed by You, without further notice or direction, to give effect to the reversal by holding an amount in Our bank account to cover the reversal, restricting access to the funds in Our bank account, debiting the Transaction Funds Reversal amount and any associated fees or fines from Our bank account (or direct debiting the Approved Financial Account for an amount covering the Transaction Funds Reversal), and adjusting the Medipass ledger to reflect the reversal; and
(e) We are not liable for any Transaction Funds Reversals, Refunds or disputes, and You will hold Us harmless for acting in accordance with these User Terms (including this section 9) and indemnify Us in this regard.
Part C: Privacy, security and Intellectual Property
10.2 You must:
(b) obtain explicit consent from all Consumers before using their Personal Information or data which is stored by Us for any purpose other than to facilitate the relevant Transaction, or before disclosing their health or sensitive Personal Information to Us; and
(c) use all reasonable efforts to protect and secure any Personal Information and other data You hold in connection with the Service from any loss or unauthorised access, use, or disclosure, and promptly notify Us if any such loss or unauthorised access, use or disclosure occurs or is reasonably suspected or likely to occur.
10.3 Despite anything else in these User Terms, You must:
(a) obtain all consents from Consumers about whom You disclose Personal Information to Us; and
(b) provide any necessary notices to such Consumers on Our behalf, to the extent required by applicable privacy laws.
11.1 When using the Service, You are solely responsible for the management and security of Your Approved Account (including passwords or mobile phone access PIN codes). You are liable for any activity that occurs under Your username or through Your Approved Account.
11.2 You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and You must notify Us immediately in the event of any suspected unauthorised access or use.
11.3 You acknowledge and agree that:
(a) the nature of the Service involves the transmission of Transaction requests, data and other information over the internet, which is an inherently insecure environment;
(b) such transmission may be delayed, misdelivered or incomplete, and may be read or altered by third parties in transmit; and
(c) We will not be liable to You or any other person or entity for any failure by Us to perform Our obligations in relation to a Transaction that is not received by Us, or the loss, alteration or disclosure of information or data which is caused by circumstances beyond Our direct control.
11.4 The Service may contain links to third party information and products (including those of Third Party Partners). Such content and links are not owned, operated or maintained by Us (or affiliated with Us in any way), unless this is expressly indicated. We are not responsible for the content of any third party content which appears on or within the Service, and accept no liability or responsibility for Your actions or omissions in relation to such third party information, material, content and links.
12 Intellectual property
12.1 Copyright in all content contained in the Service, including but not limited to text, drawings, photographs and page layout, subsists under, and is protected by, the Australian Copyright Act 1968 (Cth) and international copyright laws and, unless stated otherwise is owned by Us or used by Us under licence.
12.2 Except as expressly provided otherwise, no ownership is transferred in, or other rights granted to the other party in, the Intellectual Property of a party.
12.3 Any Intellectual Property that We develop under or in connection with these User Terms (including any changes, additions or improvement to the Service based on your feedback or usage) immediately and directly vests in Us upon its creation and will form part of Our Intellectual Property, unless We agree otherwise. You acknowledge and agree that You have no ownership rights or interests in Our Intellectual Property.
12.4 The Services utilises certain integrations with Third Party Partners and includes references to trading names and other information or images which are the Intellectual Property of those Third Party Partners (Partner Intellectual Property). You acknowledge and agree that:
(a) any Partner Intellectual Property is owned solely and exclusively by the relevant Third Party Partner;
(b) You will not contest the ownership of any Partner Intellectual Property for any reason;
(c) a Third Party Partner may at any time prohibit You from using any of the Partner Intellectual Property for any reason; and
(d) You may only use the Partner Intellectual Property (including relevant advertisement and promotional material) if You have received written authorisation from the relevant Third Party Partner, and You must provide evidence of this authorisation to Us upon request.
12.5 You permit Us to use Your name and logo for the purposes of providing the Services.
Part D: Suspensions and termination
13 Suspension Actions
13.1 In this section 13.1, Suspension Action means:
(a) suspending or restricting Your use of all or any of the Service (including the Medipass Settlement Services);
(b) blocking the settlement or completion of one or more Transactions or other payments; and
(c) contacting and disclosing information, where reasonably necessary to mitigate risk to Us or a third party, to:
(i) persons who have purchased goods or services from You;
(ii) any banks or Card Networks involved with Your business or transactions;
(iii) law enforcement or regulatory agencies; and
(iv) other third parties that may have been impacted by such violations.
13.2 We may immediately take any or all of the Suspension Actions in the following circumstances:
(a) where reasonably necessary for technical or operational reasons;
(b) if You breach these User Terms;
(c) if an Insolvency Event occurs in relation to You;
(d) if We consider that You have committed or may be committing any fraudulent activity against Us or against any other person or organisation through or in connection with Your use of the Service;
(e) if reasonably necessary to comply with any law or to protect our legitimate commercial interests.
14.1 Either party may terminate these User Terms at any time by giving two Business Days’ written notification to the other party.
14.2 Upon termination of these User Terms:
(a) Your Approved Account will be flagged as dormant and all Services (including the Medipass Settlement Services) will cease;
(b) any pending Transactions will be cancelled and all amounts held on Your behalf in Our bank account, including the Price to be received from Transactions completed prior to the termination, shall be paid to You;
(c) Your licence to access and use the Services will immediately cease; and
(d) You must pay to Us any outstanding Fees which You are liable to pay in accordance with these User Terms.
14.3 You acknowledge that upon termination You will be unable to access your Approved Account or any data which is stored within it, which may be deleted or destroyed by Us.
14.4 You agree that We will not be liable for any damages or responsible for any compensation in connection with the termination, suspension or restriction of the Services (including the Medipass Settlement Services) which occurs in accordance with these User Terms.
14.5 Any termination of these User Terms will not affect the rights or obligations of the parties which have accrued prior to, or accrue on, termination, and which by their nature are intended to survive termination.
Part E: Liability
15 No warranties
15.1 Despite anything else in these User Terms, and to the extent permitted by law, We, Our contractors and suppliers, and all Third Party Partners:
(a) make no representations about the suitability, reliability, availability, timeliness and accuracy of the information, software, products, services and related graphics contained on the platform or through the Service for any purpose; and
(b) disclaim all warranties and conditions with regard to this information, software, products, services and related graphics, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement of the Service.
16.1 You indemnify and hold Us and Our officers, employees and agents harmless against all Loss suffered or incurred by You or a third party in connection with any:
(a) breach of these User Terms;
(b) wilful misconduct or misrepresentations; or
(c) unlawful or negligent act or omission, by You or Your representatives.
17.1 To the extent permitted by law, You agree that:
(a) We are not responsible or liable in any way for the conduct or activities of any third parties, including Our contractors and suppliers and any Third Party Partners;
(b) Your use of the Services is at Your own risk, and We are not liable for any Loss arising out of or in connection with the provision, use or performance of the Service.
17.2 To the extent that any guarantee, warranty, term or condition is implied or imposed into these User Terms by legislation, and liability for breach cannot be excluded but can be limited, then Our liability for breach of that guarantee, warranty, term or condition is limited to (at Our option):
(a) the re-supply of the Services, or payment for the cost of re-supply of the Services; or
(b) the replacement or repair of goods, or payment of the cost of replacement or repair.
Part F: General terms and definitions
18.1 Jurisdiction: These User Terms are governed by the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria.
18.2 Severability: If any of these User Terms are invalid, unenforceable or illegal, the remaining User terms will continue to apply.
18.3 Variation: At Our sole discretion, We may amend or vary these Terms at any time and for any purpose. If We do so, We will publish the amended version on Our website or alternatively provide written notification to You. Any amended version will apply to Your use of the Service from the date of publication or Our notification.
18.5 Force majeure:
(a) Neither party will be liable by reason of any failure or delay in the performance of its obligations on account of events which are beyond the reasonable control of that party.
(b) The events referred to in clause 18.5(a) may include (but are not limited to) denial-of-service attacks, a failure by a third party hosting provider or utility provider, pandemic, strikes, shortages, riots, war, terrorism, governmental action, fires, or natural disasters or environmental events such as floods, earthquakes or hurricanes.
In these User Terms:
Application Program Interface or API means an integrated software program that enables a set of functions and procedures that allow the creation of applications that access the features or data of an operating system, application, or other service.
Approved Account means an account that has been approved by Us and through which a Service Provider may access the Service using secure login details.
Approved Financial Account means the Service Provider’s nominated banking or other financial institution account, to which Medipass will process and deposit the Price or any other form of payment which arises due to a Transaction.
Business Day means any day in which normal business operations are conducted in the state of Victoria, Australia. This is considered to be Monday through to Friday from 9AM to 5PM, local time and excludes weekends and public holidays.
Card Network means the network that powers credit card and debit card transactions. This includes, without limitation, Visa, MasterCard, Apple Pay, Google Pay and any other network described in 9.2(a).
Chargeback means a Refund, Transaction Fund Reversal or a dispute or claim by a Consumer, their financial institution, a Card Network, Medipass or Medipass’ processor in relation to a Transaction that involves payment with a credit card or by ‘credit’ on a debit card.
Consumer has the meaning given to that term in section 1.2.
Eligible Transaction means a type of Transaction for which a Fee applies, as specified on Our pricing page at www.medipass.com.au/pricing (and as may be amended from time to time).
Fee(s) means any fee which is charged by Us for an Eligible Transaction at the rate or in the amount specified on Our pricing page at www.medipass.com.au/pricing, as amended from time to time.
Insolvency Event means if You enter into any composition or arrangement with Your creditors, have a receiver, a receiver and manager, an administrator, a provisional liquidator or liquidator appointed to Your business, or are the subject of any resolution or petition for winding up (other than for the purpose of amalgamation or reconstruction while solvent), become bankrupt, or cease to carry on business.
Intellectual Property means all intellectual property rights throughout the world, whether registered or unregistered, including rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and the right to apply for registration of such rights.
Losses means any direct or indirect loss, damage, liability, charge, claim, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs on a full indemnity basis, and any lost profits or data.
Medipass Card Payment means the product offered by Medipass which enables You to process a debit or credit card payment via the Service and without a physical payment terminal.
Medipass Settlement Services means the component of the Services which involves Medipass:
(a) accepting and collecting monies on Your behalf, and holding such monies for You in Our bank account (as nominated and managed by Us); and
(b) forwarding the Price to Your Approved Financial Account,
noting that the types of Transactions for which Medipass Settlement Services may be provided will vary from time to time, but currently include Medipass Card Payments and certain claims for Insurance and Care NSW (icare).
Partner Intellectual Property has the meaning given to that term in section 12.4.
Personal Information has the meaning given to that term by the Privacy Act 1988 (Cth).
Price has the meaning given to that term in section 8.2(a).
Refund mean a payment reversal as a result of a Consumer not being satisfied with the supply or quality of the goods or services provided by the Service Provider, changing his/her mind about the purchase for any reason, or the Service Provider deciding to reverse a Transaction for any reason. For clarity, Refunds may include a Chargeback but do not include Transaction Funds Reversals.
Restricted Business Category includes:
(a) any business categories which are restricted by the relevant Card Network; and
(b) any of the following business categories:
(i) drug paraphernalia;
(ii) human hair, fake hair or hair-extensions;
(iii) marijuana dispensaries and related businesses;
(iv) online or other non-face-to-face pharmacies or pharmacy referral services;
(v) pseudo pharmaceuticals; or
(vi) prescription drugs, illegal drugs or substances designed to mimic illegal drugs.
Service has the meaning given to that term in section 1.1 and for the avoidance of doubt, includes the Medipass Settlement Services.
Service Provider means any organisation or individual who accesses or uses the Service to process payments, claims or other benefits in relation to their provision of goods and services, such as:
(a) health or medical service providers;
(b) merchants of approved goods and services delivered under a health insurance or other benefit scheme; or
(c) any other business which delivers approved goods or services, and includes any person who is authorised to use the Service by or on behalf of that Service Provider.
Suspension Action has the meaning given to that term in section 13.1.
Taxes has the meaning given to that term in section 6.2.
Third Party Partners has the meaning given to that term in section 1.4.
Transaction means an electronic request to:
(a) process a Medipass Card Payment for a payment to be made by a Consumer to the Service Provider; or
(b) seek authorisation from a Third Party Partner for a claim that is initiated by a Service Provider via the Service.
Transaction Funds Reversals are payment reversals that can refund a Consumer up to the full amount of the Transaction as a result of an unauthorised, unlawful, suspicious, or prohibited Transaction. For the avoidance of doubt, a Transaction Fund Reversal may include a Chargeback but does not include a Refund.
User Terms means these terms which set out the basis by which We permit You to access or use the Service.