1. DEFINITIONS AND INTERPRETATIONS1.1 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.
“Booking Services” means the service available via the Software that allows a User to book and manage appointments with its patients.
“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.
“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 Schedule One and commences on the start date recorded in Schedule One. “Location(s)” means the User’s address set out in Schedule Three 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 described in Schedule One.
“Purpose” means to liaise with the User’s patients or other third parties, such as (by way of example only) to remind its patients of upcoming appointment times, recalls, results or other similar functions.
“Recipient” means the recipient of a Message.
“Services” means the services described and provided in accordance with Schedule Two of this Agreement.
“Software” means the software licensed to the User, further described in Schedule Two.
“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.
“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 Schedule Three.
“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 Sovereign’s 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. Schedule One (Special Terms);
b. Schedule Two (Schedule of Service Specifications and Software);
c. these Terms and Conditions;
d. the Documentation;
e. 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 15, 16, 17 or 19.
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 16.1, or clause 15, 17 or 19 applies.
4. CONDITIONS OF USE
4.1 The User shall:
a. only use the Software at the Location and for the Purpose;
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;
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. RESTRICTIONS OF USE
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. RESPONSIBILITIES OF THE USER
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 User’s 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
7.1 If the Plan does not expressly include a maximum number of Messages that may be sent for the Monthly Plan Fee, Vensa shall be entitled to limit the number of Messages that a User sends if the User’s use of the Software significantly exceeds normal customer use patterns as determined by Vensa.
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 19.
8. DELIVERY AND INSTALLATION
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.
8.2 Vensa may authorise that the installation process be carried out through the User’s IT provider, provided that Vensa equip the User’s IT provider with the installation instructions before installation.
9. SERVICES, SUPPORT SERVICES, MAINTENANCE AND UPDATES
9.1 Vensa shall provide the Support Services to the User in accordance with Schedule Two.
9.2 To receive the Services, the following shall be satisfied:
a. the Software shall be installed by Vensa or by an IT provider authorized 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 Services and the Support Services:
i. in a prompt, efficient, professional and ethical manner;
ii. in accordance with all relevant laws; and
iii. in accordance with the service specifications set out in Schedule Two.
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 Vensa shall deliver to the User from time to time:
a. Maintenance Releases; and
9.7 At Vensa’s 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. CHARGES AND PAYMENTS
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 19.
10.3 Vensa shall invoice the User for the Monthly Plan Fees and any additional amounts due in accordance with Schedule One. Payments are due on the 20th day of the month following the month that the invoice was issued.
10.4 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.
10.5 Where Vensa fails to meet its obligations under this Agreement, the User may withhold some or all of the next monthly payment due (refer to Schedule One) until Vensa has complied with the relevant obligation, or until any costs incurred by the User have been met, whichever is later.
11.1 Vensa warrants that:
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.
11.2 Vensa shall endeavour to ensure that the Software shall be substantially free from defects and comply with the specifications set out in Schedule Two. If a defect is found and notified in writing to Vensa, then Vensa will use reasonable endeavours to repair the defect in the next scheduled Maintenance Release and this shall be the User’s sole remedy for any defects in the Software.
11.3 Notwithstanding the foregoing clauses 11.1 and 11.2, 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.
11.4 The warranties in this clause 11 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.
11.5 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.
12. INTELLECTUAL PROPERTY OWNERSHIP
12.1 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.
12.2 If any Intellectual Property is created or improved in the course of Vensa providing the Services and/or the User using the Software (“Improved IP”) such Improved IP will be owned by Vensa whether or not that Improved IP resulted from activities carried out by the User, and the User hereby assigns all of its rights and interest in or to such Improved
12.3 The User shall execute all documents and do all acts and things reasonably required for the purpose of giving effect to clause 12.2 and Vensa shall be entitled to use and possess all documents and materials recording any Intellectual Property rights freely and at no cost.
13. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
13.1 Subject to clause 13.3 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.
13.2 In order to fulfil its obligations under clause 13.1 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.
13.3 Vensa shall not be liable to the User if the Action has arisen out of:
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.
14. LIMITATIONS OF LIABILITY AND INDEMNITY
14.1 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 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.
14.2 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.
14.3 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.
14.4 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 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.
15.1 Either party may terminate this Agreement immediately if the other party enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver,
15.2 Except where otherwise provided for in this Agreement if one party defaults in the performance of any of its obligations under this Agreement, the non-defaulting party may (at its sole discretion) either immediately terminate, or temporarily suspend the operation this Agreement until the default is remedied if:
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.
15.3 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 25.
15.4 If the User gives notice to Vensa to terminate this Agreement under clause 15.1 or clause 15.2 the 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.
16. TERMINATION FOR CONVENIENCE AND TERMINATION FEES
16.1 Subject to clause 16.2 the User may terminate this Agreement at any time during the Initial Term on giving sixty (60) Working Days notice to Vensa. Thereafter, either party may terminate this Agreement on giving ninety (90) Working Days notice to the other party.
16.2 If this Agreement is terminated in accordance with clause 15 by Vensa during the Initial Term or if the User terminates this Agreement in accordance with clause 16.1 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.
17. REPLACEMENT SOFTWARE AND TERMINATION BY VENSA
17.1 Vensa may from time to time release new Software products (“New Software and New Services”), and the Software and Services defined under this Agreement may be replaced by the New Software and New Services. Accordingly, if Vensa wishes to replace the Software and Services with the New Software and New Services, Vensa may:
a. terminate this Agreement on giving three months notice to the User; and
b. offer the User a new agreement for the New Software and New Services, which shall commence on the date that is the day after this Agreement terminates in accordance with clause 17.1(a).
18. CONSEQUENCES OF TERMINATION
18.1 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 16.2.
18.2 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.
19.1 Vensa may modify the terms contained in this Agreement (“Amendment”) at any time by giving the User no less than ten (10) Working Days prior notice of any proposed Amendment (“Amendment Notice”). For the avoidance of doubt, the parties acknowledge that Vensa may send the Amendment Notice by email.
19.2 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”).
19.3 If the User does not agree to the Amendment, the User shall notify Vensa that it does not accept the Amendment within five (5) Working Days of receipt of the Amendment Notice, and unless otherwise agreed between the parties, this Agreement shall terminate on the Amendment Effective Date. Termination Fees shall not apply to any termination of this Agreement by the User under this clause 19.4.
20.1 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.
20.2 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.
21. FORCE MAJEURE
21.1 Neither party will be liable for any act, omission, or failure to fulfill 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”).
21.2 The party unable to fulfill its obligations due to Force Majeure will immediately:
a. notify the other in writing of the reasons for its failure to fulfill its obligations and the effect of such failure; and
b. use all responsible endeavours to avoid or remove the cause and perform its obligations.
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.
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.
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 Schedule Three to 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.
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.
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.
28. 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.
29. SUBJECT TO NEW ZEALAND LAW
The parties agree that this Agreement shall be governed by the laws of New Zealand.
30. DISPUTES AND REMEDIES
30.1 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 endeavoring to resolve the dispute on mutually acceptable terms.
30.2 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.
30.3 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.
30.4 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.
30.5 Nothing in this clause shall preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.