In this Agreement unless the context otherwise requires the following expressions have the following meanings: “Agreement” means this agreement including its schedules. “Approved Purpose” means the provision of access to the Software to Authorised Users in connection with the ordinary business of the Licensee. “Authorised Users” means that number of persons, who must be residents in or patients of the Licensee’s healthcare facilities, authorised to use the Software pursuant to the Approved Purpose. “Commencement Date” means the date of this Agreement. “Default Interest Rate” means the official cash rate plus 6%. “Enhancement” means upgraded, improved or modified versions of the Software and “Enhanced” has the same meaning. “Licence Fee” means the licence fee as set out in the Specific Terms. “Object Code” means a computer program in a form capable of being loaded into a suitable computer and executed by the computer to perform a desired range of functions. “Software” means the software described in the Specific Terms and includes any Enhancements. “Source Code” means the set of computer language symbols which can be translated by compilation into a usable machine language object code format for the Software. “Term” means the term of this Agreement set out in clause 4. “Use” means utilisation of the Software for the Approved Purpose. In this Agreement any reference to “person” includes individuals (whether masculine or feminine), firms and bodies corporate. In this Agreement references to “holding company” and “subsidiary” have the meanings given to them by sections 5 to 8 of the Companies Act 1993 and “associated persons” has the meaning given to it by section YA 1 of the Income Tax Act 2007.
The Licensor agrees to supply the Software to the Licensee on the terms of this Agreement. The Licensor grants and the Licensee accepts a non-transferrable, non-exclusive licence to use the Software, in accordance with this Agreement, and for the Term. The Licensee may use the Software in its normal business operations: for the Approved Purpose; and subject to compliance with this Agreement. Where the Licensee is a subsidiary or holding company of other companies (as defined in the Companies Act 1993) (“group”) the Licensee must not allow other companies in the group to use the Software, except if the Licensor consents to such use in writing. The Licensor may, as a condition of its consent, require those other group companies to acknowledge they will comply with the terms of this Agreement. The Licensee accepts responsibility for the acts or omissions of other group companies using the Software and their acts and omissions are deemed those of the Licensee.
The Licensee is permitted to delegate Use of the Software to Authorised Users. Each Authorised User will be issued with their own login and password, but the Licensee will remain ultimately responsible for the actions of any Authorised User in connection with that Authorised User’s use of the Software. Licensee is responsible for maintaining its own Authorised User logins and passwords and maintaining the confidentiality and security of access to the Software.
This Agreement commences on the Commencement Date and continues until terminated under clause 11 (Termination).
The Licensee agrees to pay without set-off, counterclaim or deduction: the Licence Fee to the Licensor at the intervals specified in the Specific Terms; and all other fees and charges referred to in this Agreement. The Licensor may increase the Licence Fee if there is an Enhancement of the Software. Such increases in the Licence Fee will take effect upon the Licensee's receipt of the Enhancement. However, the Licensee may notify the Licensor prior to receipt of the Enhancement that it does not wish to receive the Enhancement and wishes to terminate the Agreement, in which case this Agreement will terminate within 30 days’ notice of the date of the Licensee's notice. All Licence Fees and other fees under this Agreement are exclusive and net of any taxes, duties or such other additional sums including, without limitation goods and services tax or any other tax and whether levied in respect of the licences, the Software, its Use or in any other way whatsoever. The Licensor may require the Licensee to pay interest at the Default Interest Rate on any overdue amounts under this Agreement, calculated daily from the due date for payment until the actual date of payment. The Licensor may require the Licensee to pay all reasonable costs (including collection costs and legal costs on a solicitor-client basis) that the Licensor incurs in attempting to recover or in recovering any such overdue amounts.
The Licensee must not: use, copy, modify or distribute the Software except as expressly permitted by this Agreement or by law; reverse assemble, reverse compile, otherwise translate or reverse engineer the Software except if expressly permitted by law. If decompilation of the Software is permitted under the Copyright Act 1994, the Licensee must first contact the Licensor who will use its reasonable endeavours to make a suitable version of the Software available that decompilation subject to such reasonable terms as the Licensor requires; or sublicense, rent, lease or otherwise communicate the Software to any third party. The Licensee must: maintain accurate and up-to-date records of the number and location of all Authorised Users of the Software; and adequately supervise and control Use of the Software in accordance with the terms of the licences; The Licensee must: comply with the Licensor's reasonable restrictions and instructions in relation to the Use of the Software, including those set out in this Agreement; accept all responsibility for the reliance on and Use of the Software by its Authorised Users and its employees, contractors and agents; obtain and maintain all equipment, software and services needed to enable it to use the Software; and comply with all relevant laws, including all statutory, regulatory and common laws, in its Use of the Software and in carrying out the obligations under this Agreement. The Licensee must not permit any unauthorised third person to access, examine, repair or in any way alter the Software without the prior written consent of the Licensor. The Licensee is fully responsible for all Licensor's costs of rectifying the Software should any such unauthorised action take place.
The Licensor will: make available all information on upgrades to and Enhancements of the Software at such costs as may be notified from time to time by the Licensor to the Licensee; provide the Licensee with access (via the internet, telephone or any other means established by the Licensor) to the Licensor’s support service and use reasonable endeavours to correct or circumvent any material defect in the Software; and establish and maintain administrative, technical and physical safeguards designed to protect against the destruction, loss, or unauthorised access to data and personal information transmitted via the Software or otherwise collected or held by the Licensor as the provider of the Software and review the effectiveness of such safeguards periodically during the term (provided that the Licensee acknowledges the Licensor cannot guarantee or warrant the security of any data or personal information of the Licensee or Authorised Users). While the Licensor will use reasonable endeavours to ensure the Software functions adequately for the Approved Purpose, the Licensor does not warrant uninterrupted or error-free operation of the Software or that the Licensor will correct all Software defects. The Licensee acknowledges for the purposes of the Consumer Guarantees Act 1993 that the Software is supplied to it for business purposes and that the provisions of that Act do not apply.
The Licensor is not liable to the Licensee for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Software, its Use or other application. Notwithstanding the generality of clause 8.1 above the Licensor excludes liability for any consequential loss or damage which may arise in respect of the Software, its Use, the System or in respect of any other equipment or property, or for loss of profit, data, business, revenue, goodwill or anticipated savings. The exclusions of liability referred to in clauses 8.1 and 8.2 above apply to all liability whether in contract and/or in tort (including negligence or otherwise). In the event that any limitation or provision contained in this Agreement is held to be invalid for any reason and the Licensor becomes liable for loss or damage that would otherwise have been excluded, it is agreed that such liability is limited to the amount of Licence Fees paid to the Licensor by the Licensee in the 3 months preceding the date the Licensee makes it claim known to the Licensor.
Intellectual property rights
Any and all of the trade marks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Software are and remain the sole property of the Licensor. The Licensee agrees that it will not during or at any time after the expiry or termination of this Agreement in any way dispute the ownership by the Licensor of any such rights. In the event that new inventions, designs or processes evolve in the performance of the Software or as a result of this Agreement, the Licensee agrees that such rights are the property of the Licensor unless otherwise agreed in writing by the Licensor. The Licensee agrees to transfer (and procure that any person within its control transfers) such rights to the Licensor upon the Licensor's request but at the Licensor's expense. The Licensor confirms: ordinary use of the Software will not infringe the intellectual property rights of any third party; and the Licensor is authorised to grant the licence on the terms set out in this Agreement. In the event of any breach by the Licensor of clause 9.3(a), the Licensor may either: obtain the rights to continue providing the Software to the Licensee; modify the Software so that it becomes non-infringing; or immediately terminate this Agreement by notice in writing to the Licensee. This clause 9.4 sets out the Licensor's sole obligation and the Licensee's sole remedy in relation to any breach of clause 9.3(a).
(a) All information, data, drawings, specifications, documentation, software listings, Source Codes or Object Codes which the Licensor may have disclosed or given to or may from time to time disclose or give to the Licensee relating to the Software, is proprietary, secret and confidential to the Licensor. The Licensee agrees with the Licensor that it will use such materials solely in accordance with the provisions of this Agreement and that it will not at any time during or after the expiry or termination of this Licence, disclose those materials whether directly or indirectly to any third party without the Licensor's prior written consent. The Licensee will not itself or through any holding, subsidiary or associated company, agent or third party, modify, vary, enhance, copy, sell, lease, license, sublicense or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or Enhancements of the Software or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor. All information relating to the party's respective businesses which they may have disclosed or given to or may from time to time disclose or give to the other must be kept strictly confidential by the disclosee. Nothing in this clause prevents the Licensor from exercising any of its rights in respect of the Software which may be permitted or authorised by this Agreement.
Either party may terminate this Agreement by providing one months’ notice to the other party. The Licensor can end this Agreement immediately by notice in writing to the Licensee if the Licensee: does not fulfil any of its obligations under this Agreement and the default is material and either: cannot be remedied; or can be remedied but has not been 14 days after the Licensee receives written notice of the default but the Licensor cannot end this Agreement under this clause 11.2(a)(ii) if the default has been remedied before the Licensee receives the notice of termination; Any termination of this Agreement will be without prejudice to the rights of either party arising prior to termination. Nothing in clause 11 affects the operation of any clauses in this Agreement which are expressed or implied to have effect after its termination.
(a) Any notice or other communication (“notices”) given under this Agreement must be in writing. It may be served personally or sent to any of the relevant party's communication points listed the Specific Terms. Each party will notify the other in writing of any changes. Notices are deemed served at the following times: when given personally, upon delivery; when sent by post (other than airmail) or document exchange, 3 business days after posting; when sent airmail outside New Zealand, 5 business days after posting; and when sent by email, at the time of sending (unless the sending party receives a notification of failure of delivery within 24 hours of the email being sent). Any notice which has been served on a Saturday, Sunday or public holiday is deemed to be served on the first business day after that day. A notice may be given by an authorised officer, employee or agent. (a) Notice may be given personally to a director, employee or agent of the party at that party's address or to a person who appears to be in charge at the time of delivery or according to sections 387 to section 390 (inclusive) of the Companies Act 1993. If the party is a natural person, partnership or association, the notice may be given to that person or any partner or responsible person. If they refuse to accept the notice, it may be brought to their attention and left in a place accessible to them. Time is of the essence.
The Licensee must not transfer, assign or otherwise deal with all or any of its rights under this Agreement without first obtaining the written consent of the Licensor. This Agreement constitutes the entire agreement between the parties and no earlier representation, warranty or agreement in relation to any matter dealt with in this Agreement has any force or effect from the date of this Agreement. This Agreement is governed by and construed according to the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand. The failure of a party at any time to: enforce or insist upon the strict observance of any provision of or any right in respect of or the remedy of any breach of non-performance of this Agreement; or exercise any election or discretion under this Agreement, does not operate as a waiver of those matters or of any of the rights of such party under this Agreement. Any illegality, unenforceability or invalidity in this Agreement will not affect the rest of this Agreement which will remain in full force and effect. The Agreement may be executed in counterparts. All executed counterparts constitute one document.