Terms and Conditions
1. Definitions and Interpretations
1.1 In this Agreement, unless the context otherwise requires:
“Agreement” means this Agreement and includes all Schedules and Appendices attached to it or incorporated in it by reference;
“Documentation” means user manuals including those in electronic form, handbooks, supporting installation material, maintenance libraries, education materials and other publications containing specifications to be supplied in order to assist the use, operation or support of the Software;
“Effective Date” means the date this Agreement comes into force being the date on which it is signed by both parties;
“Equipment” means computer hardware, telecommunications hardware, accessories, and attachments, alterations of and spare parts for that Equipment;
“Locations” means the location or locations described at the practice address where the software will be downloaded and installed;
“Maintenance Releases” means Software corrections in the form of patches and updates, which are licensed to the practice under this Agreement and subject to delivery hereunder.
“Payment Schedule” means the amounts, dates and conditions of payment for Software stated in this agreement;
“Primary User” means the person who is the key practice contact and has responsibility for the Software.
“Registration Number” means the identification number that the Primary User must enter to gain access to the Software issued by the Licensor.
“Software” means the product which is covered by this Licence Agreement. Your practice will have an individual serial number for your practice software.
“Support Services” means telephone and email assistance associated with the general use and operation of the end-user analysis component of the Software and the administrative component of the Software.
“Text Message” means a single block of text (maximum 160 characters in length) sent to one mobile handset.
“Update” means a new version of the Software which improves the functionality of the Software.
2. Scope
2.1 Vensa Health agrees to provide the Software provided that the practice has paid the Initial Connection Fee and the first monthly subscription fee.
2.2 Vensa Health agrees to provide Update to all Software as and when new versions are released providing that the practice agrees to pay the fee charged by Vensa Health for such Updates.
2.3 Vensa Health will provide necessary download information of the Software, and of any subsequent Updates to the Software, to each of the Locations.
2.4 The practice shall have the right to extend the use of the Software to additional equipments and/or related parties subject to the payment of any additional fees incurred.
3. Conditions of Use
3.1 The practice must only use the issued Software at the Location. If the Software is installed on a network server or other storage device, the practice must purchase an additional Software licence for each separate computer on which the Software is used or accessed. A licence for the Software may not be shared by alternating use of the Software between different computers.
3.2 The practice shall not forward any Text Message unless it has the permission of the owner of the applicable phone number to which the applicable Text Message is to be forwarded.
3.3 The practice indemnifies Vensa Health against losses or costs or damages including any indirect or consequential losses or damages resulting from the contents of a Text Message.
3.4 The practice agrees to install a broadband connection (starting from 128kbps) to the internet and to use this internet connection in accessing the Software.
3.5 Vensa Health is providing the software as a communication tool, it is not liable for any breaches of privacy act between the practice and its patients. Neither Vensa Health nor any of its personnel accept any responsibility for the text-messages communicated between the practice and its patients.
4. Charges and Payments
Price
4.1 The amount payable for the licensing of the Software is as detailed in Page 1. GST will be payable in addition by the Licensee, at the rate applicable at the time of supply. The prices stated in Page 1 are effective from 1st July 2007. Any new tax or duty, other than income tax, shall be paid by the practice.
Payment
4.2 Vensa Health shall invoice the practice for the Software supplied in accordance with the Payment Schedule. Payments are due on the 20th of each month from issue.
Increases in Fees
4.3 Vensa Health shall have the right to increase any of the Fees specified in Page 1 provided that Vensa Health gives the practice 30 days prior notice of the increase.
4.4 Vensa Health shall have the right to automatically increase the monthly fees for the practice if the practice introduces new users to the system. The increase in monthly fee will follow the structure outlined on page 1. The software monitors the users of the system remotely and thus monthly billing will be made according to the number of users accessing application at any present time.
Total Charges
4.5 Subject to clauses 4.1, 4.3 and to any agreed variations or change requests or Updates, the Fees specified in Page 1 constitute the total charge to the practice.
Support Services Payment
4.6 The monthly price of the plan bundle provided is provided within the overall bundle fee on Page 1. The monthly support includes fixing all service issues via email, telephone and remote access.
4.7 The monthly bundle fee does not include once off additional service installations, installations for additional workstations and replaced workstations is deemed as additional and is subject to additional support fees. Support fees are charged at $110 + GST for remote access and at $150 + GST for onsite support.
4.8 Version upgrades associated with the TXT2Remind service entitle the practice to 1 hour of time free for remote installation upgrade, exceeding the 1 hour will subject to additional remote support fees of $110 + GST. Onsite upgrades are subject to charges of $150 + GST per hour with no free time.
4.9 Failure to make payment will result in the SMS service being suspended. The Practice will be advised by e-Mail of any breaches in the payment term.
4.10 Vensa Health can change its ongoing support rates without notice to the client.
5. Delivery and Installation
5.1 Vensa Health will install the Software to the Locations remotely, at an agreed time and date.
5.2 Vensa Health will install the Software on the Equipment at each Location. The installation process may also be carried out through the practice’s IT provider, provided that Vensa Health equip the practice IT provider with the installation instructions before installation.
5.3 Vensa Health will supply the Software to each Location on the media specified for that Location.
5.4 Vensa Health will supply new versions of the Software as they become available, on the stated media, to each of the Locations, provided only that the practice is not in arrears with any Fees payable.
5.5 Vensa Health will provide training at your practice. Training takes up to 2 hours and can be attended by maximum of 7 people.
6. Documentation
Vensa Health will provide the practice with the Documentation.
7. Warranties
7.1 Vensa Health warrants that:
7.1.1 it has the right and authority to grant a licence for the Software supplied to the practice;
7.1.2 the Software, when used in the specified operating environment, will conform to its published specifications at the time the Software is supplied by Vensa Health;
7.2 Notwithstanding the foregoing, Vensa Health shall have no obligation to correct defects in the event that all or any part of the Software is modified by the practice without the approval of Licensor.
8 Support Services
8.1 To receive the Support Services, the following must be satisfied:
8.1.1 The Software must be installed by Vensa Health or a the practice’s authorised representative;
8.1.2 The Software must be unmodified by the practice users;
8.2 Hours of support shall be 9.00am to 5.00pm Monday to Friday, excluding Public Holidays and a day in the period commencing on 24 December in any year and ending on the 5th day of January in the following year, both days inclusive.
8.3 Service Responsibilities of Vensa Health:
8.3.1 Vensa Health shall provide their contact details to the practice for the purpose of providing Support Services during hours of support.
8.3.2 Vensa Health shall deliver Maintenance Releases to the practice with corrections to documented, reproduceable errors in its Software and new features updates. At the Licensor’s sole option, error corrections will 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.
8.4 Responsibilities of the Licensee:
8.4.1 The practice agrees to provide and maintain at the practice’s sole cost remote access system (“RAS”) or similar SLIP/PPP dial-up/broad band capability in order to allow the Vensa Health’s employees remote access to the Licensee’s server for the purpose of providing Support Services. The practice will initiate any remote procedures at its location before the Vensa Health staff are to have access.
8.4.2 The practice agrees to maintain a current back-up copy of the Software, other software and Licensee’s data to prevent inadvertent data loss during the delivery of support services.
8.4.3 The practice agrees to provide reasonable assistance to Vensa Health or the Licensor’s authorised representative in support of this Agreement.
8.5 Service Limitations: Support services do not include resolving problems or answering questions arising from:
8.5.1 The Licensee’s modifications to the Software;
8.5.2 Repair or damage not caused by the Licensor, 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.
9. Ownership
9.1 All intellectual property rights which may subsist in the Software and associated Documentation shall remain with the owner of such software but the practice shall be granted a licence to use the Software upon the terms and conditions of this Agreement.
9.2 The parties shall execute all documents and do all acts and things reasonably required for the purpose of giving effect to clause 9.1.
10. Intellectual Property Rights Indemnity
10.1 Vensa Health will indemnify the practice against, and will at its cost defend or settle any claim, suit, action or proceeding (collectively called “Action”) brought against the practice to the extent that the Action is based on a claim that the practice’s use of the Software supplied by Vensa Health constitutes a breach of any patent, copyright, trade secret or other proprietary right, provided that:
10.1.1 the practice fully co-operates with Vensa Health in defending or settling the Action and makes its employees available to give statements, advice and evidence as Vensa Health may reasonably request;
10.1.2 Vensa Health 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;
10.1.3 Vensa Health shall have the sole control of the conduct of any Action and all negotiations for its settlement or compromise.
10.2 In order to fulfil its obligations under clause 10.1 Vensa Health shall forthwith at its own expense either:
10.2.1 obtain for the practice the legal right to continue using the Software or parts of the Software which are the subject of the action; or
10.2.2 replace the Software (or the infringing parts of the Software) with reasonably equivalent software.
13. Limitation of Liability
13.1 The warranties in clause 7 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, the implied warranties of fitness for any particular purpose. The foregoing exclusions do not apply to rights granted to the practice under the Consumer Guarantees Act 1993 unless the practice is acquiring the Product(s) for the purposes of a business in which case the provisions of the Consumer Guarantees Act 1993 shall not apply.
13.2 Vensa Health’s liability to the practice arising out of any claim for damages for any cause whatsoever will under no circumstances exceed in aggregate the total amount of the sums actually paid by the practice to Vensa Health under this Agreement for the goods or services which gave rise to the claim.
13.3 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. Termination
Immediate Termination
14.1 Either party may terminate this Agreement forthwith if the other party:
14.1.1 assigns its rights or obligations under the Agreement otherwise than in accordance with clause 19;
14.1.2 enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver, or a receiver and manager, or statutory receiver is appointed in respect of it;
14.1.3 commits a breach of copyright or any other breach of intellectual property rights, or a breach of confidentiality.
Termination by Vensa Health
14.2 Vensa Health may terminate this Agreement forthwith if the practice sends text messages to clients or other persons for reasons other than for reminding the patient of their upcoming appointment time, recalls, results, adding service, or uses the Software for any other unsolicited marketing purposes.
Termination by Either Party on Notice
14.3 If one party defaults in the performance of any of its obligations under this Agreement and:
14.2.1 the default is capable of being remedied, and, within five (5) days of notice by the non-defaulting party specifying the default, is not remedied; or
14.2.2 the default is not capable of being remedied
the non-defaulting party may immediately terminate, or temporarily suspend the operation of this Agreement until the default is remedied, at its sole discretion.
Remedies on Termination
14.3 The practice may terminate this Agreement on the giving of one months notice to the other Vensa Health. A termination fee to the practice may apply if the practice has not completed the minimum 12 month term. If the practice gives notice to Vensa Health to terminate this Agreement, the practice may, in addition to terminating this Agreement:
14.3.1 recover any sums paid to Vensa Health on any account under this Agreement which have not been performed or completed;
14.3.2 pursue any additional or alternative remedies provided by law.
14.4 Upon termination of this Agreement the practice shall, at Vensa Health’s option, return or destroy any copies of the Software and related Documentation in the possession or control of the Licensee.
15. Force Majeure
15.1 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”).
15.2 The party unable to fulfil its obligations due to Force Majeure will immediately:
15.2.1 notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure;
15.2.2 use all responsible endeavours to avoid or remove the cause and perform its obligations.
16. 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.
17. 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.
18. Notices
Any notice given pursuant to this Agreement will be sufficiently given if it is in writing and delivered, or sent by prepaid post or facsimile to the other party at the address as shown in this agreement.
19. Assignment
The practice shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of Vensa Health which shall not be unreasonably withheld.
20. Amendments
Any modification to or variation of this Agreement must be in writing and signed by authorised representatives of Vensa Health and the practice.
21. 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.
22. 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 all prior Agreements and understandings with respect to the subject matter of this Agreement.
23. Subject to New Zealand Law
The parties agree that this Agreement shall be governed by the laws of New Zealand.
24. Disputes and Remedies
24.1 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.
24.2 Any dispute arising under this Agreement which cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.
24.3 If the parties can not agree a mediator within two 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.
24.4 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.
24.5 Nothing in this clause shall preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.