Software License agreement
This agreement (License Agreement) is between the Customer (Customer) being the entity described in Schedule One and My Practice Limited (My Practice) for the Software Product listed in Schedule One (Software). The Software includes the Software, the Embedded Software and its associated media and all written or electronic documentation that accompanies the Software.
The Software is licensed to the Customer for use only in accordance with the terms of this License Agreement.
- GRANT OF LICENSE.
1.1 License. Subject to the terms and conditions of this License Agreement, My Practice hereby grants to the Customer a personal, non-exclusive, non-transferable right and license (without the right to sublicense) to use the Software solely in object code form for the Customer’s internal business use.
1.2 Software Installation and Use. The Software may be installed, accessed, displayed, run, shared or used concurrently on or from the computers located at the Customers practice for the number of users specified in Schedule One only. For the purposes of this License Agreement one user is one full-time equivalent (FTE) general practitioner (or part thereof) and up to two FTE support staff (which may include a practice nurse, nurse, receptionist or practice manager).
1.3 Back-up Copy. The Customer may make one copy of the Software in machine-readable object code form for non-productive backup or archival purposes only.
1.4 Restrictions. Any use of the Software not expressly permitted by this License Agreement is prohibited. Without limiting the foregoing, the Customer shall not (a) install or configure the Software other than in accordance with this License Agreement or any other instructions provided by My Practice; (b) reverse assemble, reverse compile, reverse engineer or otherwise attempt to derive the source code of the Software; (c) modify, enhance or create derivative works of the Software; or (d) lease, sublease, sublicense, sell, distribute, transfer or grant any other rights in the Software.
1.5 Embedded Software. The Software may contain software licensed to My Practice by a third party (Third Party Licensors) for distribution within the Software (Embedded Software). The Customer’s use of the Embedded Software shall be governed by this License Agreement and the license agreements between My Practice and its Third Party Licensors.
1.6 Software Rights. My Practice and the Third Party Licensors retain all right, title and interest in and to the Software. Except for the license rights expressly granted in this section 1, no express or implied license, right or interest in or to any intellectual property of My Practice or Third Party Licensors is conferred by this License Agreement. The Customer shall not assign, market, transfer, encumber the Software, or take any action that would cause the Software to be placed in the public domain. The Customer shall not remove any proprietary rights notice from the Software. Any portion of the Software merged into or used in conjunction with other software or hardware will continue to be the property of My Practice and subject to the terms and conditions of this License Agreement.
1.5 Upgrades and New Releases. Provided the Customer is not in breach of this License Agreement, My Practice will make available to the Customer, at no additional charge, upgrades and new releases of the Software which My Practice makes generally commercially available for use. Any upgrades or new releases of the Software will be governed by the terms of this License Agreement unless otherwise expressly notified to the Customer in writing.
2. SUPPORT AND TRAINING
- Provision of Support. Support for the Software is provided by My Practice (or its authorised agent as listed in Schedule One). Support provided by telephone or email during normal business hours (8am -5pm Monday to Friday, except public holidays) is included in the Monthly Fee. Additional telephone or email support may be available outside these hours by prior arrangement. On-site support is provided on a time and materials basis (including travel time) unless such support is necessary due to a fault or a bug which is reasonably found to be My Practice’s responsibility. The time and materials rates for on-site support are available from My Practice or its authorised agent upon request.
3. FEES AND CHARGES
- License Fees. The Customer agrees to pay My Practice the monthly fee specified in Schedule One (Fee) plus any applicable taxes or duties by direct debit from the Customer’s nominated bank account on the first day of each month. My Practice reserves the right to alter the Fees upon giving the Customer 30 days prior notice in writing.
- Data Transfer. In addition to any Fees, My Practice (or its authorised agent) may charge the Customer for transferring practice data to the Software. My Practice will notify the Customer of any such charge prior to commencing any data transfer.
- Additional Charges. The Customer will pay My Practice any charges (plus GST if applicable) within 30 days of receipt of an invoice from My Practice.
4. DISCLAIMER OF WARRANTIES AND LIMITATION AND EXCLUSION OF LIABILITY
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS, AND MY PRACTICE DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OR THAT THE SOFTWARE WILL OPERATE ERROR-FREE, UNINTERRUPTED OR BE FREE OF VIRUSES.Ã THE ENTIRE RISK AS TO THE SELECTION, SATISFACTORY QUALITY, PERFORMANCE AND USE OF SUCH SOFTWARE SHALL REMAIN WITH THE CUSTOMER.
- Responsibilities. The Customer understands and agrees that My Practice and its licensors are not engaged in the practice of medicine and that the Software is an information tool only and is not a substitute for competent medical advisors. All medical practice management and patient care decisions made in which the Software may be utilized, and the consequences thereof, will be exclusively the Customer’s responsibility (or that of the practitioners entitled to use the Software at the Customer’s practice). The Customer agrees to indemnify and hold My Practice and its licensors, and their respective officers and employees harmless from any and all claims that any improper medical treatment resulted from the Customer’s use or reliance upon the Software. The Customer is solely responsible for the accuracy and adequacy of the information and data furnished for processing by the Software. The successful operation of the Software is dependent on the Customer’s use of proper procedures and systems and input of correct data. The Customer agrees that it has sole responsibility for protecting and backing up the data used in connection with or furnished for processing by the Software.
- Exclusion of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MY PRACTICE OR ITS THIRD PARTY LICENSORS BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES RELATED TO DELAYS, LOSS OF DATA, INTERRUPTION OF SERVICE OR LOSS OF USE, BUSINESS, REVENUE, OR PROFITS) IN CONNECTION WITH THIS LICENSE AGREEMENT, USE OR INABILITY TO USE THE SOFTWARE, UNDER ANY LEGAL THEORY, EVEN IF MY PRACTICE OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.Ã IN NO EVENT SHALL MY PRACTICE OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY THIRD PARTY CLAIM. LIABILITY FOR DAMAGES SHALL BE LIMITED AND/OR EXCLUDED AS PROVIDED IN THIS LICENSE AGREEMENT, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS LICENSE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation of Liability. MY PRACTICE’S TOTAL LIABILITY TO THE CUSTOMER AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED DAMAGES ARISING OUT OF, BASED ON OR RELATING TO THIS LICENSE AGREEMENT WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. Certain statutes, rules and regulations may imply certain non-excludable warranties or conditions. To the extent such are not permitted to be excluded, My Practice’s liability for breach of such conditions or warranties shall be limited to correction or substitution of the non-conforming Software.
5 TERM AND TERMINATION
5.1 Term. This License Agreement commences on the date it is signed by both parties and shall continue unless terminated in accordance with this section 5.
- Rights to terminate. The Customer may terminate this License Agreement at any time upon giving 30 days written notice to My Practice. My Practice may terminate this License Agreement effective immediately by written notice to the Customer if the Customer (a) fails to correct a material breach of the terms of this License Agreement within 30 days of written notice from My Practice; (b) breaches any of clauses 1.1, 1.4. 1.5 or 6 of this License Agreement; or (c) becomes insolvent or bankrupt or are the subject of any proceedings for the benefit of the Customer’s creditors.
- Effect of Termination. Promptly upon termination of this License Agreement, the Customer must discontinue all use of the Software and un-install the Software from the computers in the Customer’s practice. Termination of this License Agreement shall not release either party from liability for accrued obligations or any previous breach of this Agreement, and shall be without prejudice to other rights and remedies that may be available, including injunctive or other equitable remedies. The Customer shall not be entitled to receive any rebate or refund of the whole or any part of any Fees paid. The provisions of clauses 1.4, 1.5, 1.6, 3, 4, 5.3, 6 and 7.1 will survive termination of this License Agreement.
6.1 Obligations of Confidentiality. The Customer will hold My Practice’s Confidential Information in confidence and not disclose it to any third party without My Practice’s prior written consent. My Practice will hold the Customer’s Confidential Information in confidence and not disclose Confidential Information to any third party without prior written consent. Confidential Information means any information disclosed by My Practice or the Customer that is not generally known to the public or, by its nature, should be reasonably considered confidential. The parties acknowledge and agree that a breach of this clause would cause irreparable harm and that either party shall be entitled to seek equitable relief from such breach. Notwithstanding the foregoing, My Practice may state publicly or list in announcements, presentations or other marketing materials the fact that the Customer is a licensee of the Software.
- New Zealand Law. This License Agreement is governed by and construed in accordance with the laws of New Zealand without reference to its principles or rules of conflicts of laws. The parties hereby submit to the jurisdiction of the courts of New Zealand.
- Notices. All notices shall be in writing and sent via certified mail, return receipt requested to the contact address provided by the relevant party. Notice shall be deemed to have been given upon delivery (by post or facsimile) with confirmation of receipt (unless received after 5 pm in the place of receipt, in which case receipt shall be deemed to have occurred on the next business day).
- Relationship of Parties. Nothing in this License Agreement shall be construed as establishing a partnership, joint venture, agency, employment or other similar relationship between the parties.
- Assignment. This License Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. The Customer may not assign, sublicense or otherwise transfer this License Agreement or any right granted under this Agreement without the prior written consent of My Practice.
- Third Party Licensors. Except for Third Party Licensors, nothing in this License Agreement shall be construed as giving any third party any right, remedy or claim.
- Variation and Entire Agreement. This License Agreement may be amended only by written agreement of the parties. This License Agreement constitutes the entire agreement and supersedes all prior agreements and other discussions (oral or written) with respect to the licensing of the Software. Any waiver of any terms of this License Agreement must be in writing and shall not operate as a waiver of any other term or preclude any other or further exercise of such term.