1.
DEFINITIONS
AND INTERPRETATIONS
1.1
In
this Agreement, unless the context otherwise requires:
Agreement
means this Agreement and includes all schedules, appendices and Documentation
attached to this Agreement or incorporated in to it by reference.
Confidential
Information means all information in any form, relating to the business or
prospective business, current or projected plans of a party, except where that
information is in the public domain (otherwise than by a breach of this
Agreement), or is already in the possession of the receiving party from a third
party, without any duty of confidentiality imposed or implied in relation to
such information.
Documentation
means user manuals including those in electronic form, handbooks, supporting
installation material, maintenance libraries, education materials and other
publications supplied by Vensa containing specifications in order to assist the
use, operation or support of the Software.
Equipment
means computer hardware (including a Work Station), telecommunications
hardware, accessories that are required for the use of the Software in
accordance with this Agreement and attachments, alterations of and spare parts
for that Equipment.
GST means
goods and services tax chargeable in accordance with the GST Act.
GST Act
means the Goods and Services Tax Act 1985.
Intellectual
Property means any current and future intellectual property rights whether
registered or unregistered, including copyrights, design rights, trade marks,
trade names, domain names, rights in logos and get-up, patents, inventions,
confidential information, know-how, all rights in software products, design,
data and databases.
Initial
Term means the initial term recorded in a Service Schedule and commences on
the start date recorded in the relevant Service Schedule.
Location(s)
means the Users address set out in the Details Schedule or such other location
or locations as notified to Vensa in writing by the User.
Maintenance
Releases means Software corrections (including bug fixes) in the form of
patches and Updates, which are licensed under this Agreement and subject to
delivery hereunder.
Message
means a single block of text (maximum 160 characters in length) sent by the
User via the Software to a mobile handset or other device.
Monthly
Plan Fees means the monthly fees payable by the User as set out in the Plan.
Plan means
the plan(s) described in a Service Schedule that sets out the fees and charges
payable for use of a Service, which may consist of a Service fee, Message fee,
and/or transaction fee.
Purpose
means to liaise with the Users patients or other third parties as more
specifically described in a Service Schedule, such as (by way of example only)
to remind its patients of upcoming appointment times, notify patients about recalls
and results, enable patients to request repeat prescriptions, enable patients
to pay for services, enable patients to view lab results and notes, and/or
other similar functions.
Recipient
means the recipient of a Message.
Services
means the service(s) described and provided in accordance with a Service Schedule
of this Agreement.
Software
means the software licensed to the User, as further described in a Service Schedule.
Support
Services means telephone, email and online assistance associated with the
general use and operation of the end-user analysis component of the Software
and the administrative component of the Software.
Tax
Invoice has the meaning given to it in the GST Act, and includes credit notes
and debit notes.
Term means
the term of this Agreement and includes the Initial Term.
Termination
Fees means the total amount of Monthly Plan Fees payable under the Plan from
the date of termination up to and including the expiry date of the Initial
Term.
Update
means a new version of the Software which improves the functionality of, or
adds a new feature to the Software.
User means
the person, medical practice, organisation, and/or Primary Health Organisation
which is identified in the Details Schedule.
Vensa
means Vensa Health Limited.
Working
Day means any day of the week other than:
a. Saturday,
Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereigns
birthday, any regional Anniversary Day and Waitangi Day; and
b. a day in the
period commencing on 24 December in any year and ending on 5 January in the
following year (both days inclusive).
Work Station means a computer at the Location
that has the Software installed on it.
1.2
To
the extent that there is any inconsistency between the terms and conditions contained
in the documents that form this Agreement, the descending order of precedence
is as follows:
(a)
any
Service Schedule;
(b)
these
Terms and Conditions;
(c)
the
Documentation;
(d)
any
other annexure or schedule to this Agreement.
2.
GRANT
OF SOFTWARE LICENCE
2.1
Vensa
grants to the User and the User accepts from Vensa, a non-exclusive, revocable,
non-transferable right to use the Software:
(a)
for
the Purpose;
(b)
at
the Location;
(c)
on
the terms set out in the Plan;
(d)
during
the Term; and
(e)
in
accordance with the terms and conditions contained in this Agreement.
3.1
This
Agreement shall remain in force for the Initial Term, unless it is terminated
earlier in accordance with clause 17, 18, 19 or 21.
3.2
After
the expiry of the Initial Term, the Agreement shall continue until either party
gives notice to the other of its intention to terminate in accordance with
clause 18.1, or clause 17, 19 or 21 applies.
4.1
The
User shall:
(a)
only
use the Software at the Location and for the Purpose(s) specified in the
Service Schedule;
(b)
install
the Software on the Equipment in accordance with clause 8, and may
not use the Software on any other equipment;
(c)
only
install the Software on the number of Work Stations set out in the Plan (if
applicable);
(d)
use
the Software in accordance with the Documentation and all other instructions
given to the User by Vensa;
(e)
comply
with all relevant laws in relation to its use of the Software, including
without limitation the Unsolicited Electronic Messages Act 2007, the Privacy
Act 1993 and the Health Information Privacy Code 1994;
(f)
obtain
any required consent from a Recipient to send a Message to that Recipient; and
(g)
co-operate
at all times and provide reasonable assistance to Vensa and/or its authorised
representative in order to support the use of the Software in accordance with
this Agreement.
5.1
The User shall
not:
(a)
reduce the
Software to human readable form, reverse engineer, decompile, disassemble,
merge, adapt, or modify the Software, except and only to the extent that such
activities are expressly permitted by applicable law, notwithstanding this
limitation;
(b)
rent,
lease, lend, sublicense, assign or transfer any rights to the Software and/or
Documentation granted under this Agreement to any third party;
(c)
export
the Software;
(d)
use
the Software to perform any unauthorised transfer of information, such as
copying or transferring files in violation of copyright or for an illegal
purpose; or
(e)
use
the Software to send any Message(s) to any Recipient that contains
inappropriate, offensive or unauthorised content.
6.1
The
User shall:
(a)
provide
and maintain at the User's sole cost a remote access system or SLIP/PPP
broadband capability in order to allow Vensa's employees remote access to the
Users server for the purpose of providing Support Services. The User will
initiate any remote procedures at its Location before Vensa's employees are
able to have access;
(b)
maintain
a current back-up copy of the Software, other software and the User's data to
prevent inadvertent data loss during the delivery of Support Services; and
(c)
provide
and maintain the Equipment and all information technology systems which are
used in connection with the Software.
6.2
Vensa
may suspend or uninstall the Software if:
(a)
the
User breaches any of the conditions contained in clauses 4, 5 or 6 of this
Agreement; and
(b)
the
User does not remedy such breach within five (5) Working Days of receiving
written notification of such breach from Vensa.
7.
FAIR USE
PLAN
7.2
If
Vensa limits or restricts the number of Messages that a User sends through the operation
of clause 7.1, Vensa may
notify the User that it has taken such action (Initial Notice). If Vensa is
then required to limit or restrict the number of Messages that a User sends
through the operation of clause 7.1 within
twenty (20) Working Days from the Initial Notice, Vensa may notify the User
that the User's Plan will be amended in accordance with clause 21.
8.1
Vensa
will install the Software on the Equipment to the Locations remotely, at a time
and date which is agreed between Vensa and the User.
9.1
Vensa shall
provide the Support Services to the User in accordance with this clause 9.
9.2
To receive the
Support Services, the following shall be satisfied:
(a)
the
Software shall be installed by Vensa or by an IT provider authorised by Vensa
under clause 8.2; and
(b)
the
Software shall not be modified by the User.
9.3
The
hours of the availability of Support Services shall be 9.00am to 5.00pm on
Working Days.
9.4
Vensa
shall:
(a)
provide
its contact details to the User for the purpose of providing Support Services
during the hours of support; and
(b)
provide
the Support Services:
(i)
in
a prompt, efficient, professional and ethical manner; and
(ii)
in
accordance
with all relevant laws.
9.5
Support
Services do not include resolving problems or answering questions arising from:
(a)
the
User's modifications to the Software; or
(b)
repair
of damage not caused by Vensa, including without limitation, damage resulting
from accident, transportation, neglect or misuse, lightning, failure or
fluctuation of electrical power, air-conditioning or humidity control, hardware
failure, telephone equipment, communication line failure, failure of foreign
interconnect equipment or causes other than ordinary use. Any work carried out
by Vensa in respect of any of the matters listed in this clause 9.5(b) may incur a
fee.
9.6
As
part of the Support Services, Vensa shall deliver to the User from time to
time:
(a)
Maintenance
Releases; and
(b)
Updates.
9.7
At
Vensas sole option Maintenance Releases may take the form of patches made
remotely to the Software, or Updates to the Software delivered in the form of
appropriate magnetic media with installation instructions.
9.8
The
User shall install (or where required by Vensa, shall allow Vensa to install)
any Maintenance Releases and Updates within ten (10) Working Days from the date
that Vensa releases the Update or the Maintenance Release to the User.
10.1 The User
shall pay Vensa the Monthly Plan Fees and any additional amounts due as set out
in the Plan. GST at the rate applicable at the time of supply will be payable
by the User in addition to the amounts set out in the Plan. Any new tax or
duty, other than income tax, shall be paid by the User.
10.2 Vensa shall
have the right to change any amounts set out in the Plan in accordance with the
process provided under clause 21.
10.5 Except where
payment is withheld under clause 10.5, if the
User fails to make payment on time or in full, and such failure is not
remedied within five (5) Working Days of written notice being given to the
User, the supply of Services and the use of the Software will be suspended
until such failure is remedied.
11.
PAYMENT PROCESSING
SERVICES
11.1 To the
extent that payment processing services are made available to the User by Vensa
as part of a Service the following provisions of this clause shall apply.
11.2 The User
acknowledges that the payment processing services are provided by a third party
payment processor, and are subject to the third party payment processor's terms
and conditions of service which the User accepts when they set up their online
payment processing account (Payment Processing Services Agreement, a
copy of which is available on Vensa's website). By entering into this Agreement
and continuing to offer payment processing services through use of the Software,
the User agrees to be bound by the Payment Processing Services Agreement, as
may be modified by the third party payment processor from time to time. As a
condition of Vensa enabling payment processing services through the third party
payment processor, the User agrees to provide Vensa with accurate and complete
information about itself and its business (and update Vensa of any such
changes), and the User hereby authorises Vensa to share with the third party
payment processor all such information and all transaction information related
to the use of the payment processing services provided by the third party
payment processor.
11.3 In
accordance with the payment terms, timeframes and frequency set out in the
relevant Service Schedule, Vensa shall deposit to the User's online payment
processing account the total value of all online transactions approved through
the payment processing service (including any GST collected) as part of the
Services for the preceding month, less any commission, transaction fees or
other amounts due and payable to Vensa in accordance with the Plan and terms
set out in the relevant Service Schedule (Monthly Payout).
11.4 If in any
month, the Monthly Payout equates to a negative value, the User hereby
authorises Vensa to deduct the amount owing to Vensa from the User's online
payment processing account. If the User's online payment processing account has
insufficient funds to settle the full balance of monies owed to Vensa, all
remaining funds shall be debited from the User's online payment processing
account and Vensa will invoice the User for the outstanding fees in accordance
with clause 10.4.
11.5 The User
acknowledges and agrees that the payment processing services are provided on an
as is and as available basis without any express, implied or statutory
warranties of title, merchantability, fitness for a particular purpose,
non-infringement or any other type of warranty or guarantee.
11.6 Neither
Vensa nor any third party payment processor will have any liability or
responsibility for any (a) personal injury or property damage, of any nature
whatsoever, resulting from use of the payment processing services; (b) damage,
loss, or injury resulting from hacking, tampering, or other unauthorised access
to, or use of the payment processing services, including any unauthorised
access to or use of third party servers used in connection with the payment
processing services and/or any personal information stored therein; (c)
interruption or cessation of the payment processing services; (d) software
bugs, viruses, Trojan horses, or other harmful code that may be transmitted to
or through the payment processing services; (e) errors, inaccuracies, or
omissions of information, or any damages or losses incurred as a result of such
errors, inaccuracies or omissions.
12.1 For the
purposes of the GST Act, the parties acknowledge and agree that:
(a)
Vensa
will collect GST at the applicable rate on all online transactions approved
through the payment processing service;
(b)
The
User shall issue a Tax Invoice in respect of each transaction approved through
the Software, and Vensa shall not issue a Tax Invoice in relation to that same
transaction; and
(c)
the
User will return and pay all amounts of GST collected in relation to an online
transaction approved through the Software to Inland Revenue in accordance with
the GST Act.
12.2 Each party
warrants that it is and will remain a registered person for the purposes of the
GST Act.
13.
WARRANTIES
(a)
it
has the right and authority to grant a license for the Software supplied on the
terms and conditions contained in this Agreement; and
(b)
the
Software, when used in the specified operating environment, will substantially
conform with the Documentation at the time the Software is supplied by Vensa.
13.3 Notwithstanding
the foregoing clauses 13.1and 13.2, Vensa
shall have no obligation to correct defects in the event that all or any part
of the Software is modified by a User without the approval of Vensa.
13.4 The
warranties in this clause 10.5 replace all
other representations or warranties (statutory, express or implied) and all
such representations and warranties (save any which may not lawfully be
excluded) are expressly excluded, including, without limitation:
(a)
implied
warranties of fitness for any particular purpose; and
(b)
that
the use of the Software will be uninterrupted.
13.5
In
entering this Agreement, both parties confirm, acknowledge and agree that:
(a)
each
party is in trade;
(b)
the
Services and the use of the Software are supplied to the User and are acquired
by the User in trade and for a business purpose; and
(c)
the
statutory guarantees and implied terms, covenants and conditions contained in
this Consumer Guarantees Act 1993 are excluded to the fullest extent permitted
at law and do not apply.
14.
INTELLECTUAL
PROPERTY OWNERSHIP
14.1 The User
acknowledges that Vensa (or its licensors) is the owner of the Intellectual
Property rights in and to the Software and the Documentation and that the User
will not obtain any right, title or interest to the Intellectual Property
rights in and to the Software or the Documentation other than the rights to use
the Software and the Documentation granted under this Agreement.
14.3 The User
shall execute all documents and do all acts and things reasonably required for
the purpose of giving effect to clause 14.2 and Vensa
shall be entitled to use and possess all documents and materials recording any
Intellectual Property rights freely and at no cost.
15.
INTELLECTUAL
PROPERTY RIGHTS INDEMNITY
15.1 Subject to
clause 15.3 Vensa will
indemnify the User against, and will at its cost defend or settle any claim,
suit, action or proceeding (collectively called Action) brought against any
User to the extent that the Action is based on a claim that the User's use of
the Software supplied by Vensa constitutes a breach of any patent, copyright,
trade secret or other proprietary right, provided that:
(a)
the
User fully co-operates with Vensa in defending or settling the Action and makes
its employees available to give statements, advice and evidence as Vensa may
reasonably request;
(b)
Vensa
is notified promptly in writing of any Action and is given complete authority
and information required for the conduct of the defence or settlement of the
Action; and
(c)
Vensa
shall have the sole control of the conduct of any Action and all negotiations
for its settlement or compromise.
15.2 In order to
fulfil its obligations under clause 15.1 Vensa shall
forthwith at its own expense either:
(a)
obtain
for the User the legal right to continue using the Software or parts of the
Software which are the subject of the Action; or
(b)
replace
the Software (or the infringing parts of the Software) with reasonably
equivalent software.
(a)
the
User's use of the Software in conjunction with any hardware, equipment
(including the Equipment), or other software that is not supplied or approved
by Vensa;
(b)
the
User's use of the Software in a manner or for a purpose that is not in
accordance with the terms contained in this Agreement; and/or
(c)
any
modification of the Software that has not been approved by Vensa.
16.
LIMITATIONS
OF LIABILITY AND INDEMNITY
16.1 Vensa is not
liable for any breach by the User or any Permitted Person of the Privacy Act
1993 or the Health Information Privacy Code 1994. The User hereby authorises
Vensa to access and extract certain personal information (including health
information) about the User's health providers and patients directly from the
User's practice management system (but only to the extent necessary for Vensa
to provide the Services requested by the User) and confirms that it has the
necessary consent or approval from the relevant individuals for Vensa to access
and extract such information in connection with the Services. The User confirms
that it shall obtain all necessary consents or approvals required in order to
communicate with Recipients through its use of the Software. Neither Vensa nor
any of its personnel accept any responsibility for:
(a)
the
content of any Message; or
(b)
any
Message sent and/or delivered in error due to an act or omission of the User or
a Permitted Person.
16.2 Vensa's
liability under this Agreement or otherwise will under no circumstances exceed
in aggregate the total amount of the sums actually paid to Vensa under this
Agreement for the goods or services which gave rise to the claim.
16.3 No action
arising out of this Agreement may be brought more than two years after the
party bringing the action became aware, or reasonably ought to have been aware,
of the circumstances giving rise to the action.
16.4 The User
indemnifies Vensa against losses, costs or damages including any indirect or
consequential losses, costs or damages incurred or suffered by Vensa and
arising from the User or any Permitted Person breaching any of the terms
contained in this Agreement, the Payment Processing Services Agreement (if
applicable), the content of any Message, and/or any Message sent and/or
delivered in error due to the act or omission of the User or any Permitted
Person.
(a)
the
default is capable of being remedied, and within five (5) Working Days of
notice by the non-defaulting party specifying the default, is not remedied; or
(b)
the
default is not capable of being remedied.
17.3 Vensa may
terminate this Agreement immediately if the User:
(a)
uses
the Software, or sends a Message to any person for any reason other than for
the Purpose;
(b)
breaches
Vensa's or it licensor's copyright, or any other breach of any Intellectual
Property rights, or a breach of confidentiality; and/or
(c)
assigns
its rights under the Agreement otherwise than in accordance with clause 27.
17.4 If the User
gives notice to Vensa to terminate this Agreement under clause 17.1or clause 17.2the User
may, in addition to terminating this Agreement recover any sums paid to Vensa
on any account under this Agreement which have not been performed or completed.
18.1 Subject to
clause 18.2the User may
terminate this Agreement (or any Service Schedule) at any time during the
Initial Term on giving sixty (60) Working Days notice to Vensa.
Thereafter, either party may terminate this Agreement (or any Service Schedule)
on giving ninety (90) Working Days notice to the other party.
18.2 If this
Agreement is terminated in accordance with clause 17 by Vensa
during the Initial Term or if the User terminates this Agreement in accordance
with clause 18.1 during the
Initial Term, the User shall pay the Termination Fees to Vensa within twenty
(20) Working Days of receipt of an invoice from Vensa for the Termination Fees.
(a)
terminate
this Agreement (or a Service Schedule) on giving three months notice to the
User; and
(b)
offer
the User a new agreement (or Service Schedule) for the New Software and New
Services, which shall commence on the date that is the day after this Agreement
(or the relevant Service Schedule) terminates in accordance with clause 19.1(a).
20.
CONSEQUENCES OF TERMINATION
20.1 Upon
termination of this Agreement the User shall:
(a)
discontinue
using the Software;
(b)
delete
and uninstall the Software from the Equipment;
(c)
at
Vensa's option, return or destroy any copies of the Software and Documentation
in the possession or control of the User; and
(d)
pay
any Termination Fees due in accordance with clause 18.2.
20.2 Termination
or expiry of this Agreement shall not affect the rights or liabilities of
either party accrued prior to and including the date of termination or expiry.
21.2 The
Amendment shall take effect on the date that is specified in the Amendment
Notice, or if no date is specified, on the expiry of the ten (10) Working Day
notice period (Amendment Effective Date).
21.5 Notwithstanding
any other provision in this clause 21, the User
acknowledges that Vensa's third party suppliers (including any payment
processor) may change their terms without sufficient notice and therefore any
such terms which are passed through to Users under this Agreement are subject
to change at short notice or without advance notice. Vensa will endeavour to
provide the User as much notice as possible if any third party terms are
amended or additional obligations are required to be passed through to Users,
but Vensa may not be able to do so if the triggering event is outside of its
control.
22. AUDIT
22.1 Vensa may
itself, or may appoint an independent auditor (Auditor) to inspect any
records or documents at the User's premises and/or Location in connection with
the User's use of the Software in order to audit the User's compliance with the
obligations of this Agreement no more than once every twelve months during the
Term. The costs of such audit shall be borne by Vensa, except to the extent
that Vensa, or any Auditor confirms non-compliance with this Agreement, in
which case the User shall bear the costs of the audit.
22.2 The User
shall co-operate and provide all reasonable assistance to Vensa or any Auditor,
including making personnel, records, systems, Equipment and documentation
available to Vensa or any Auditor. Vensa will, and ensure any Auditor will,
comply with the User's security and confidentiality requirements and will use
all reasonable endeavours to minimise any disruption to the User.
23. FORCE MAJEURE
23.1 Neither
party will be liable for any act, omission, or failure to fulfil its obligations
under this Agreement to the extent that such act, omission or failure arises
from any cause reasonably beyond its control including acts of God, strikes,
lockouts, riots, acts of war, epidemics, governmental action after the date of
this Agreement, fire, communication line failures, power failures, earthquakes
or other disasters (called Force Majeure).
23.2 The party
unable to fulfil its obligations due to Force Majeure will immediately:
(a)
notify
the other in writing of the reasons for its failure to fulfil its obligations
and the effect of such failure; and
(b)
use
all responsible endeavours to avoid or remove the cause and perform its
obligations.
24.
WAIVER
No
delay, neglect or forbearance by either party in enforcing against the other
any provision of this Agreement will be a waiver, or in any way prejudice any
right of that party.
25.
SEVERABILITY
If any
provision of this Agreement is held to be invalid, illegal or unenforceable,
such provision will be severed and the remainder of the Agreement will remain
in full force and effect.
26.
NOTICES
Any notice
given pursuant to this Agreement will be sufficiently given if it is in writing
and delivered, or sent by prepaid post, email or facsimile to the contact
address or number shown in the Details Schedule of this Agreement.
The User
shall not assign or transfer its rights or obligations under this Agreement
without the prior written consent of Vensa, which consent shall not be
unreasonably withheld.
28.
CONFIDENTIALITY
Save as is
otherwise required by law or any regulatory authority, each party undertakes to
the other that during and after the Term it shall keep secret and shall not
without the prior written consent of the other party disclose to any third
party, except its legal and professional advisors (provided that before
disclosure, the disclosing party must make such persons aware of their
obligations of confidentiality under this Agreement), any Confidential
Information belonging to the other party.
29.
SURVIVAL
The
provisions of this Agreement which are capable of having effect after
termination of this Agreement shall remain in full force and effect following
the termination of the Agreement.
30.
ENTIRE
AGREEMENT
The parties
acknowledge that this Agreement contains the whole of the contract and understanding
between them. There are no conditions, warranties or other understandings
affecting the arrangements between the parties other than those set out herein
and this Agreement replaces and supersedes all prior agreements and
understandings with respect to the subject matter of this Agreement.
31.
SUBJECT
TO NEW ZEALAND LAW
The parties
agree that this Agreement shall be governed by the laws of New Zealand.
32.
DISPUTES
AND REMEDIES
32.1 The parties
agree to use their best efforts to resolve any dispute which may arise under
the Agreement through good faith negotiations. No party shall commence any
litigation in relation to this Agreement unless it has first invited the chief
executive of the other party to meet with its own chief executive for the purpose
of endeavouring to resolve the dispute on mutually acceptable terms.
32.2 Any dispute
arising under this Agreement which cannot be settled by negotiation between the
parties or their respective representatives within ten (10) Working Days of a
meeting held for the purposes of the above clause shall be submitted to
mediation before commencing any litigation. Either party may initiate
mediation by giving written notice to the other party.
32.3 If the
parties cannot agree a mediator within two (2) Working Days of the notice, the
mediator will be selected by the President for the time being of LEADR (Lawyers
Engaged in Alternative Dispute Resolutions) or its successor.
32.4 The parties
shall continue to perform their obligations under the Agreement as far as
possible as if no dispute had arisen pending the final settlement of any matter
referred to mediation.
32.5 Nothing in
this clause shall preclude either party from taking immediate steps to seek
urgent equitable relief before a New Zealand Court.