End User License Agreement – MasterCare EMR, PAS and PrimaryClinic
Important – This End-User Licence Agreement (“EULA”) is a legal agreement between you (as an Individual or a legal entity) and Global Health Limited (“GLH”) for the GLH software the use of which is governed by this EULA, which includes computer software and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services (“Software”).
By installing, downloading, copying, accessing or otherwise using the Software you agree to be bound by the provisions of this EULA. If you do not agree to be bound by this EULA, do not install, download or copy the Software or any part of it. Any person using or accessing the Software does so subject to the terms and conditions of this EULA.
1. Intended Users
You acknowledge that the Software is supplied for use only by health care providers and any prescribing module in the Software is only to be used by registered medical practitioners.
2. Grant of Licence
GLH hereby grants to you and you agree to accept a non-transferable, non-exclusive licence (“the Licence”) to use the Software or such part thereof subject to the terms and conditions of this EULA and all other terms and conditions which apply to the use of any part of the Software.
The Software may contain, use or rely on content, services or applications owned by third parties who have licenced their intellectual property to be used in or by the Software upon terms and conditions stipulated by the third party owners. Your right to use such third party content and applications is subject to the terms and conditions as stipulated by the owners and may be subject to licencing fees. You agree to accept their terms and conditions of use and agree to obtain all required licences by payment of the applicable licence fees. You agree that your right to use the Software or any part of it may be dependent on obtaining such third party licences and agree that you will have no claim against GLH for any non-functionality of the Software or any part of it by reason of not obtaining the required third party licences.
Any warranty given by Global is subject to your using the Software or any part thereof strictly in accordance with the terms of this EULA and all other terms and conditions which may apply and maintaining a current version of the Software (and associated operating environment and/or browser). A current version of the Software (and associated operating environment and/or browser) for the purpose of this EULA means a version of the Software (and associated operating environment and/or browser) which is in general commercial use and has been released within the previous 18 months or is the latest release.
3. Use of the Software and Service Availability
Where the Software is not licensed as a service, then unless you have been specifically licensed for multiple use, you may only use the Software on one computer or device that you own or operate. You may transfer the Software to another computer or device that you own or operate provided that you do not use or permit the use of the Software on more than one computer or device at a time. Where multiple use is licensed, the Software may be used by/on up to the maximum number of concurrent users or computers and devices allowed by your licence and all users are bound by the terms and conditions of this EULA.
Where Software is licensed as a service, your use of the Software is limited to the maximum number of user logins that you have subscribed and paid for. GLH’s service provider(s) use(s) commercially reasonable endeavours to achieve an availability target of at least 99.95% (“Availability Target”). Availability is measured as the percentage of time that the Software service is operational and contactable via the Internet. Availability is measured over a calendar month and does not include any scheduled outages or downtime initiated by you. Failure to achieve the Availability Target does not entitle you to any rebate or refund.
4. Hardware and/or Software Requirements
The Software can only run on hardware, operating systems, browsers, databases and/or other platforms as may be specified by GLH from time to time. You agree that support provided for the Software will be limited to such specified hardware, operating systems, browsers, databases and platforms and that the availability and performance of the Software or any part thereof may be affected by any variation or combination of the same as well as other factors such as internet speed and service availability and that GLH cannot and does not make any warranty whatsoever in respect of the Software’s availability or performance.
5. No Copies
If the Software is licensed as a service, then you may not copy or duplicate the Software in any way whatsoever.
If the Software is not licensed as a service, you may not copy or duplicate the Software except as reasonably necessary for archival or backup purposes, program error verification or to replace defective storage media provided that you retain the original and the copies and ensure that the copies bear notices of GLH’s ownership of copyright.
You may not adapt, modify, reverse engineer, decompile, disassemble or in any way alter the Software.
6. No Sub-Licence
You must not sub-license, lease, rent, lend or transfer the Software to any other person or entity.
7. Security and Backup
You must take all reasonable steps to ensure the Software is protected at all times from unauthorised access, use, misuse, damage or destruction and ensure that your employees, servants and agents are fully aware of and comply with the obligations under this agreement in relation to the use of the Software.
Where the Software is licensed as a service, at the time of publication of this EULA the Software is backed up by: (i) GLH’s hosting service provider, which has a backup policy of once-daily backups with a retention period of 35 days; and (ii) GLH, which has a backup policy of once-daily overnight (Australian Eastern Time) backups with a retention period of 35 days.
8. Support Services
Subject to your compliance with your obligations under this EULA, GLH will provide you with the following support services during the Term.
- Availability of Support
Standard support services will be provided by GLH between the hours of 0830 (8:30 am) local time and 1700 (5:00pm) local time on normal business days in the State or Territory where the service is to be delivered. GLH may in its absolute discretion provide emergency support services outside these hours and you agree to pay GLH’s applicable after-hours rate for such emergency support services.
- Provision of Support
Where GLH is required to provide you with support services, these services will, in the absolute discretion of GLH, be undertaken in accordance with GLH’s service description as may be applicable from time to time. In addition to the terms and conditions contained in GLH’s service description, where the support is to be provided by remote support software, the remote support software product will need to be one of those specified by GLH and be acquired at your cost. Where GLH provides you with on-site support services at your request, you agree to pay professional service fees at GLH’s applicable rates, plus all travel and accommodation expenses. Where support services provided to you are not due to any defect with the Software but are a result of user negligence, internet or mobile services failures, inappropriate use of the Software, technical issues unrelated to the Software and/or lack of training, you agree that you will pay GLH’s applicable rates for such services. Where you install or use the Software on hardware, operating systems, browsers or databases that are not recommended or supported by GLH, support services cannot be guaranteed, and you agree to pay for any support provided at GLH’s applicable rates for such services. These conditions apply together with the service description.
- User Obligations in relation to the support services
You agree that you will provide GLH with all such information, facilities and assistance as is reasonably required by GLH to enable it to provide the support services.
- Availability of Support
- Third Party Updates
We will provide you with updates of third party content or applications subject to your maintaining your third party licence(s). You agree to indemnify, defend and hold GLH harmless against any claims, liabilities, proceedings, costs, losses, expenses or damages incurred by GLH in connection with your use of third party content or applications (including without limitation, your use of out of date or non-relevant content or applications) or any other negligent or wrongful act or omission by you.
- Software Updates
Subject to your compliance with your obligations under this EULA, GLH will, subject to payment by you of GLH’s upgrade licence fees (if any), provide you during the Term with updates of the Software which may, in its absolute discretion, be produced by GLH from time to time. To use Software identified as an upgrade, you must first be licensed for the software identified by GLH as eligible for the upgrade. After upgrading, you may no longer use the software that formed the basis for your upgrade eligibility. This EULA applies to all aspects of the Software including updates, supplements, add-on components, modules and Internet-based services that GLH may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, module or Internet-based services. GLH reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Software.
- Third Party Updates
The Licence is granted on a subscription and/or transaction basis and provided that you have paid the applicable fees by the due date, you may continue to use the Software in accordance with the terms and conditions of this EULA until the Licence is terminated as follows.
(i) You agree that you may terminate the Licence at any time by providing at least three (3) months’ prior written notice of termination to GLH; and/or (ii) the Licence will automatically terminate if you breach any of your obligations under the EULA or fail to pay any amount owed to GLH. Termination for breach will be without prejudice to any other remedies GLH may have against you. You agree that you will have no right of action against GLH for any and all consequences resulting from termination of the Licence for whatever reason.
- Obligations on Termination
Upon termination you must immediately cease using the Software and, where applicable, destroy the original and all copies of the Software in your possession or control. You agree, upon request from GLH, to certify these in writing in such form as may be specified by GLH.
Where the Software is licensed as a service, upon termination, GLH may, in its sole discretion (and subject to payment of any fees which GLH may impose in its absolute discretion), allow you to: (a) have ‘read-only’ access for a period of up to 60 days or such other period as may be determined by GLH; and/or (b) export or download your data from the Software in a format or formats to be determined by GLH.
11. Licence Fees
In consideration for the grant of the Licence you agree to pay GLH’s prevailing subscription and/or transaction fees for the Software as notified to you from time to time. GLH may, in its absolute discretion and without reference to you, increase the fees payable at any time by a minimum rate equivalent to the Australian Bureau of Statistics Health sector Consumer Price Index for the preceding 12 months.
12. Training Services
GLH agrees to provide you with training in the use of the Software at your cost in accordance with GLH’s prevailing charges.
13. Limited Warranty
GLH warrants that it has the right to enter into this EULA and that the Software does not infringe the copyright or other intellectual property rights of any third party. Should the Software become, or in GLH’s opinion is likely to become, the subject of a claim of infringement of an intellectual property right, you agree to permit GLH, at its sole option and expense, to do any of the following:
- (a) procure for you the right to continue using the Software;
- (b) replace or modify the Software so that it becomes non-infringing; or
- (c) cease the provision of the Software until the conditions of clause (a) or (b) above can be procured.
The Software is sold “as is” and you are assuming the entire risk as to its availability, quality, performance, merchantability, or fitness for a particular purpose. It is your responsibility to verify the results obtained from the use of the Software to ensure that they are correct. GLH disclaims all warranties, to the maximum extent allowed by law, and makes no warranty or representation, either express or implied, with regard to the Software or any part thereof, including without limitation to the availability, quality, performance, merchantability, or fitness for a particular purpose.
- Limitation of Liability
Except to the extent otherwise required by law, your sole remedy in the event of breach of the above warranty is to obtain a refund equivalent to a maximum of the previous six (6) months’ paid subscription fees or receive a free replacement of the Software on return of the defective Software to GLH or one of its resellers. Except to the extent otherwise required by law, under no circumstances will GLH be liable for any direct, indirect, special, incidental, consequential or similar damages arising from your use of the Software or any part thereof even if as a result of negligence on the part of GLH.You agree that no refund will be provided in regard to any services or out-of-pocket expenses incurred, including but not limited to training, installation, configuration, travel, accommodation, meals, telecommunications charges, etc.
- Disclaimer on use of Third Party Intellectual Property
GLH makes no warranties or representations in relation to all third party content and applications which are the subject of separate licences between third party intellectual property owners or licensors and yourself and you should read the disclaimers contained in the relevant licence agreements. Without limiting the foregoing, you acknowledge and agree that the use of the Software does not constitute professional medical or healthcare advice, diagnosis or recommendation of treatment and is not intended to nor should it be used to replace good professional medical advice. Further, although the Software may provide alerts and warnings to interactions of pharmaceutical products when accessing third party content and/or applications neither GLH nor the third party intellectual property owners or licensors represent or warrant that the list of such interactions is complete or comprehensive. It is your sole responsibility to ensure all current product and prescription information in relation to pharmaceutical products referred to in the Software have been read and understood prior to the prescription of any pharmaceutical product.
14. Applicable Laws
This EULA is governed by the laws of the state of Victoria, Australia and you agree to submit yourself to the non-exclusive jurisdiction of the Courts of that State in the event of any dispute between GLH and you.
15. Intellectual Property Rights
- GLH’s Intellectual Property Rights
You acknowledge that subject to clause 15b, all intellectual property rights in or related to the Software are and remain GLH’s exclusive property including all trademarks and copyright in and relating to the Software and all parts thereof.
- Third Party Intellectual Property Rights
All intellectual property rights in and to the third party content and applications which may be accessed through the use of the Software are the property of the respective owners.
- GLH’s Intellectual Property Rights
If any provision of this EULA is held to be void, invalid, unenforceable or illegal, it may be severed without affecting any other part of this agreement and the other provisions shall continue in full force and effect.