End User License Agreement

BEST PRACTICE SOFTWARE
END USER LICENCE AGREEMENT

1.    Introduction
1.1    Your use of Best Practice Software (Software) is conditional upon You agreeing to be bound by these terms and conditions set out in this End User Licence Agreement (Agreement).  By installing, copying or otherwise using the Software, You accept and agree to be bound by this Agreement. Acceptance of this Agreement binds You and all of Your employees.
2.    Licence
2.1    Best Practice Software Pty Ltd ACN 104 808 988 (BPS) as the exclusive licensee of the Software, grants You a non-exclusive, non-transferrable licence to use the Software and related Documentation, on the terms and conditions of this End User Licence Agreement (Licence).
2.2    You may only use the Software for the number of servers and/or the number of users specified by your License.
3.    Your obligations
3.1    Without limiting clause 2, You must not and must not permit any third party to:
(1)    use the Software except in accordance with the normal operating procedures or as otherwise advised by BPS,
(2)     sub-licence, in whole or in part, the Software;
(3)    reverse compile, reverse engineer, modify, adapt or disassemble the Software (except to the extent permitted by law);
(4)    reproduce or copy the Software, Documentation or User Manual or any part of it except as necessary for use in accordance with this Agreement or as expressly permitted in writing by BPS in its sole and absolute discretion;
(5)    permit any third party to use the Software, Documentation or User Manual; or
(6)    assign this Agreement to a third party without the prior written consent of BPS, which consent will be at BPS discretion.
4.    Installation
4.1    You are responsible for the proper installation of the Software.  Before You install the Software, You must ensure all computer hardware and operating software, required to use the Software, are fully installed, operational and capable of running the Software.  
4.2    You may be charged for any time spent by BPS in the installation or adjustment of hardware or operating software, at BPS's prevailing rates.
5.    Maintenance
5.1    BPS agrees to provide Support Services in relation to the Software during the Term of this Agreement.
5.2    BPS will provide Support Services at the hours published by BPS from time to time. Support Services may be available out of these hours (Emergency Services) at BPS’s discretion.  You may be required to pay an additional fee for Emergency Services.
5.3    You must if required by BPS, provide BPS with a documented example of any defect or error in the Software requiring Support Services.
5.4    Support Services do not include:
(1)    correction of errors or defects caused in whole or in part by:
    A. operation of the Software in a manner other than that specified by BPS or by incorrect use of the Software;
    B. revision, translation or alteration of the Software not authorised by BPS;
    C. the use of computer programs other than the Software, and any third party communication protocols;
    D. the use of computer programs other than the Software;
    E. your failure to install Updates to the Software as required;
    F: virus, malware or similar;
    G: your failure to implement appropriate security and anti-virus measures;
(2)    training of operating or programming staff and rectification of operator errors;
(3)    equipment maintenance and rectification of errors caused by an equipment fault;
(4)    furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by BPS;
(5)    correction of errors arising directly or indirectly out of Your failure to comply with this Agreement or any other agreement with BPS; or
(6)    correction of errors or defects which are the subject of a warranty under another agreement.
6.    Updates
6.1    BPS may from time to time and at its discretion provide You with updates of the Software (Updates);
6.2    You are responsible for the installation of any Updates provided to You by BPS and acknowledge that if you do not install Updates as directed by BPS:
(1)    Your failure to install such updates may adversely affect the functioning of the Software;
(2)    You indemnify BPS against any loss or damage incurred by You or any third party, directly or indirectly as a result of Your failure to install the Updates; and
(3)    any warranties made by BPS to You in relation to the Software will no longer apply and will become null and void.
7.    Payment
7.1    You must pay BPS the Licence Fee and Support Fee within 7 days from the date of invoice, or as otherwise agreed by BPS in writing.
7.2    In addition to any amount expressly payable by You under these terms and conditions, BPS may, subject to issuing a valid tax invoice, recover from You an additional amount on account of the imposition of any amount (“GST”) payable under A New Tax System (Goods and Services Tax) Act 1999 ("GST Act").
8.    Payment Default
8.1    If You default in payment by the due date of any amount payable to BPS, then all money which would become payable by the You at a later date on any account, becomes immediately due and payable without the requirement of any notice and BPS may, without prejudice to any of its accrued or contingent rights:
    (1) charge You interest on any sum due at the rate of 13.5% per annum for the period from the due date until the date of payment in full;
    (2) charge You for, and You must indemnify BPS from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default;
    (3) cease or suspend the supply of any further Software or Support Services to You; and
    (4) by written notice, terminate any uncompleted contract with You.
9.    Access
9.1    You must have a modem in good working order to facilitate support by BPS.  Any modem charges incurred by BPS in providing you with Support Services will be billed to You.
9.2    Subject to clause 5, You must provide BPS with access to Your premises (including the Location) and computer equipment, as reasonably necessary for BPS to provide You with Support Services.  You must provide BPS with reasonable assistance it requires in performing the Support Services.
10.     Security
10.1    You are solely responsible for the use, supervision, management and control of the Software and must ensure that the Software and any related data is protected from unauthorised access, use, modification, damage or destruction.
10.2    You must keep complete and accurate records relating to the use, copying, modification, merging and disclosure of the Software and its data.
11.    User Manual
11.1    You may only copy, change, or use the User Manual as required for Your own use as permitted under this Agreement or the Order Form.  User Manuals, are intended for reference only and do not preclude the need for training.
11.2    The information contained in the User Manual is intended to be a guide only. BPS does not provide any warranty in relation to its currency, accuracy or completeness and, unless otherwise required by law, will not accept any liability in relation to any loss or damage suffered by You or any third party in reliance on the information contained in the User Manual.
12.    Intellectual Property Rights
12.1    BPS retains all title and Intellectual Property Rights in the Software and Documentation, including improvements or modifications made to the Software. Any Intellectual Property Rights that arise directly or indirectly from Your use of the Software belongs exclusively to BPS, including any use that in in breach of this Agreement. You assign to BPS any Intellectual Property Rights that arise directly or indirectly from the use of the Software.
12.2    You must not do or permit an act which infringes BPS's Intellectual Property Rights in the software or Documentation, including reverse assembling or reverse engineering any part of the Software, or directly or indirectly allowing anyone else to do so.
12.3    You must immediately report to BPS any breach, suspected or otherwise of BPS's Intellectual Property Rights in respect of the Software or Documentation, including any:
    (1) unauthorised copying or use of the software or the Documentation; and
    (2) breach of confidence by any person to which You have disclosed part or all of the Software and Documentation.
12.4    You must not make any copy of the Software, other than retaining one copy for backup and archival purposes. Such copy will be subject to the conditions of this Agreement. All title, ownership and Intellectual Property Rights in the back up copy remain with BPS. You must ensure that the backup copy of the software includes all proprietary notices from the original copy, including notice of confidentiality and BPS's ownership of the Intellectual Property Rights.
13.    Confidentiality
13.1    Each party must not disclose any of the other party's Confidential Information except in any of the following circumstances:
    (1) the disclosure is necessary to comply with the disclosing party's obligations under this Agreement or under another agreement between the parties;
    (2) the disclosure is necessary to comply with the disclosing party's obligations under this Agreement or under another agreement between the parties;
    (3) The disclosure is reasonably made to a professional legal adviser or professional auditor;
    (4) the party to whom the Confidential Information belongs consists in writing to the disclosure.
14.    Term
14.1    The Licence is effective from the time You accept these terms and conditions until termination in accordance with clause 17.
15.     Termination
15.1    Either party may terminate this Agreement by providing 30 days' written notice to the other party.
15.2    BPS may terminate this Agreement immediately by notice in writing to You if:
    (1) You become bankrupt, insolvent or similar;
    (2) You do any of the following without the written consent of BPS:
            A: use, copy, modify or merge the Software in breach of this agreement;
            B: allow anyone else to use the Software or the Documentation in breach of this             Agreement;
    (3) You dispose of the Software
    (4) in BPS's reasonable opinion, You become unable to use the Software or comply with Your obligations under this Agreement;
    (5) You fail, for at least 14 days, to pay an amount that is due to BPS under this Agreement, without the requirement for written notice from BPS;
    (6) You fail, for at least 14 days, to remedy a breach of this Agreement after receiving a written notice from BPS identifying the breach and requiring it to be remedied;
    (7) You breach this Agreement and the breach is not capable of being remedied.
15.3    On termination of this Agreement for any reason, at Your own expense, immediately deliver each of the following to BPS:
    (1) the Software and all copies or any part of it;
    (2) any notes made in relation to the Software or any part of it;
    (3) take possession of any copies of the Software and Documentation that are in Your possession, custody or control and You agree that BPS has an irrevocable licence to enter any site owned, possessed or controlled by You without incurring any liability to You or any person claiming through You.
16.     Warranties
16.1    BPS warrants that:
(1)    it has the right and authority to licence the Software to You; and
(2)    there are no outstanding restrictions or constraints on its right and authority to licence the Software to You.
16.2    BPS does not provide any warranty in relation to loss of data as a result of Your use of the Software.
17.    Disclaimer
17.1    You acknowledge that You are responsible for Your use of the Software and for determining whether the Software is suitable for use by You, Your practice and Your business.
17.2    BPS and its officers, employees and agents make no warranty:
    (1) that the Software is suitable for use by You, Your practice or Your business; or
    (2) that the Software will be error free or will operate without interruption.
17.3    You acknowledge that BPS makes no representations or warranties in relation to the Database, including without limitation any references to treatments, actions or medications (Treatment).  You are responsible for the appropriateness of Treatment through a qualified medical practitioner.
17.4    You acknowledge that BPS endeavours to ensure the currency of its Database and obtains its data from pharmaceutical companies and other clinical sources, which BPS at its discretion considers to be reliable (Information).  You may not challenge the validity of the Information and accept that BPS makes no warranties in relation to Information, including without limitation any data in the Database or data, warnings or alerts presented to You through use of the Software.  You accept full responsibility for Your reliance on the Documentation, Information and the Software and do so at Your own risk.
17.5    You indemnify BPS and its officers, employees and agents against any loss, liabilities or damage that You or any third party may incur directly or indirectly:
(1)    from Your use of the Software, Documentation and Information; or
(2)    as a result of Your breach of this Agreement.
17.6    To the extent permitted by law, BPS expressly excludes all implied warranties and offers no warranties other than any express warranty provided in this Agreement.
17.7    Except to the extent under law that liability cannot be excluded or limited, BPS and its officers, employees and agents, exclude any liability in contract, negligence or otherwise for any loss or damage (including economic or consequential loss or damage) which results directly or indirectly from the use by You or any other person, or the inability to use, the Software Documentation or information.
17.8    Where applicable law prohibits the exclusion of damages or implies a warranty which cannot be excluded, to the extent permitted by law, the entire liability of BPS and its officers, employees and agents under this Agreement:
(1)    will be limited (at BPS’s discretion) to replacement or repair of the Software or the cost of replacement or repair; and
(2)    in any event, will not exceed the amount paid by You under this Agreement.
18.    Excusable Delay
18.1    Except as otherwise expressly provided in these Agreement, a party will not be liable for a breach of this Agreement (other than in relation to the obligation to pay monies), to the extent that the breach is caused by circumstances outside that party's direct control and for the period that those circumstances continue, if that party:
    (1) immediately notifies the other party; and
    (2) tries to remedy the cause quickly.
19.    Personnel
19.1    You and BPS, or any related bodies corporate, must not solicit or employ, directly or indirectly, any employees of each other for a period of 2 years after termination of this Agreement.
20.     Privacy
20.1    You warrant that You have complied with the Privacy Act in relation to any personal information (including health and sensitive information) collected by You and entered into the Software.
20.2    You acknowledge that from time to time it may be necessary for You to disclose to BPS personal information held by You in order to enable BPS to provide the Support Services. In this regard, You warrant that You have obtained all necessary consents to any such disclosure of the information to BPS in accordance with the Privacy Act and the Privacy Principles and indemnify BPS from any loss and damage it suffers as a result of Your breach of the Privacy Act or this clause 22.
21.    Variation
21.1    BPS reserves the right to amend this Agreement from time to time.  All such amendments become binding on You 3 days after notification to You unless You reject the amendments by providing written notification to BPS prior to the expiration of that period.  If You reject any amendments, BPS may immediately terminate this Agreement.
22.    Waiver
22.1    Failure or neglect by BPS to enforce any term of this Agreement does not amount to a waiver of BPS’s rights.
23.    Governing Law
23.1    The law of the State of Queensland governs these terms and conditions and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
24.    Definitions
24.1    In this Agreement:
    (1)    Privacy Principles means the Australian Privacy Principles or the Information             Privacy Principles 9as applicable) as set out in the Privacy Act;
    (2)    Confidential Information means any information in relation to a party's:
            A. business, operations or strategies;
            B. intellectual or other property; or
            C. actual or prospective customers, suppliers or competitors;
                but excluding information that:
            D. is publicly available other than as a result of a breach of this Agreement;
            E. the recipient is able to show was in its lawful possession prior to the date of this             Agreement; and
            F. is required to be disclosed by law, and then only to the extent and for the purposes         so required;
(3)    Database means the database and the database schema, containing medical or pharmaceutical information required for the functioning of the Software;
(4)    Documentation means the User Manual, operating manuals, training manuals and associated documentation whether in electronic or hard copy form;
(5)    Intellectual Property Rights means all and any copyright; registered and unregistered designs, patents, patent applications, trademarks, semiconductor, or circuit layout rights service marks, trade names, know how, trade secrets, domain names, internet addresses, rights in Confidential Information, and all and any other intellectual property rights (whether registered or registrable) and including all applications and rights to apply for any of the same and any such intellectual property rights in any information technology, hardware or the Software;
(6)    Licence Fee means the Licence Fee specified by BPS in the Order Form;
(7)    Order Form means the order form for the Software and/ or the Support Services executed by You and BPS;
(8)    Privacy Act means, as applicable, the Privacy Act 1988 (Cth) or the Privacy Act 1993 (NZ) and any associated regulations, as amended;
(9)    Software means the Best Practice Software described in the Order Form;
(10)    Support Fee means the Support Fee specified by BPS in the Order Form;
(11)    Support Services means the support and maintenance services in relation to the Software, excluding any third party software not licensed to You by BPS.
(12)     Term means the term of this Agreement from the date that this Agreement is executed (or any other date as agreed between the parties in writing) until the date that it is terminated in accordance with clause 17;
(13)    User Manual means the user manual provided by BPS to You in accordance with this Agreement;
(14)    You and Your means the person, or entity to whom BPS provides the Software and/or the Support Services in accordance with the terms and conditions of this Agreement and, where applicable, includes Your employees, agents and contractors.