Global Health is the sole and exclusive owner of the Software and upon execution of this Agreement (or use of the Software) and payment of the Licence Fee, Global Health hereby grants and the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software, upon the terms and conditions contained in this Agreement.
The Customer is licensed to use the Software until the Licence Expiry Date which can be extended by payment of the Annual Licence Fee. The licence granted pursuant to this Agreement limits use of the Software to the number of users/transactions specified at the Site. The Customer agrees and consents to Global Health’s right to enter the Site and all other sites under the Customer’s control without prior notice at any time during business hours to verify compliance with this Agreement if Global Health in its absolute discretion believes that the Customer is in breach of any term or condition of the licence. The Customer further agrees that such entry will be legal and that no claim for trespass or unlawful entry will lie against Global Health whether or not any breach of the licence is discovered. If breach of any term or condition of the licence is discovered, in addition to its legal rights, Global Health may at its absolute discretion impose an additional fee on the Customer and the Customer agrees to pay such fee in accordance with the terms of this Agreement.
The Licence Fee does not include any taxes including goods and services tax (“GST”), duties, fees or other Government charges which are imposed currently or may be imposed in the future in respect of the Software or its use, which amounts shall, if applicable, be payable by the Customer. Risk of loss or damage passes to the Customer on delivery to the Site.
If GST is imposed on any supply made under this Agreement, the Customer must pay to Global Health an amount equal to the GST payable on the taxable supply. Such amount must be paid in addition to and at the same time as payment for the taxable supply is required to be made under this Agreement. Global Health will provide the Customer with a valid tax invoice at or before the time of payment.
The Customer will make payment to Global Health within fourteen (14) days of receipt of each of the Global Health invoices. If payment of any fee owing to Global Health is not made within 14 days of receipt of the invoice, Global Health may charge the Customer interest at the rate of 2 per cent above the Australian Merchant Bankers’ Prime Rate for 90 day prime commercial bills from the due date until the payment is made provided that the amount due is not in dispute.
The Software may only be used by the Customer on the Computer Equipment at the Site and for the Number of Users/transactions specified above. The Customer will only use the Software in accordance with the normal operating procedures notified to it by Global Health and in accordance with the Operating Manuals. The Customer may make one copy of the Software for the purposes of backup and security. The Customer will ensure that the copy bears a notice of Global Health’s ownership of copyright and a notice that the software contains information confidential to Global Health. Otherwise, the Customer will not copy, reproduce, translate, adapt, modify, alter, merge, reverse assemble, or reverse compile all or any part of the Software, without the prior written consent of Global Health.
The Customer shall at all times supervise and control use of the Software in accordance with the terms of this Agreement.
The Customer shall not provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Customer’s employees without the written consent of Global Health.
The Customer will ensure the Software is protected at all times from access, use, misuse, damage or destruction by unauthorised persons.
INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that any and all of the trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Software shall be and remain the sole property of Global Health. The Customer shall not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership of Global Health or of any such rights.
Global Health will indemnify the Customer against liability in proceedings brought by a third party against the Customer for infringement of Australian copyright, patents, trade marks or other property rights in the Software, provided that the Customer has not done, permitted or suffered to be done anything which may have been or become an infringement of any such rights and the Customer has exercised a reasonable standard of care in protecting such rights, and provided further that :
I. The Customer immediately notifies Global Health of any alleged infringement;
II. Global Health has the option to conduct the defence of the claim; and
III. Global Health is permitted to do such things as are necessary, including modifying, amending or replacing the Software, to procure for the Customer the right to use the Software.
SOFTWARE LICENCE WARRANTIES AND LIMITATION OF LIABILITY
Global Health warrants that it has the right and authority to grant this Software Licence to the Customer.
Global Health warrants that the Software is in accordance with the specifications stated in the Operating Manuals. Global Health does not warrant that the Software is free of error or that it will perform any function not designated in the Operating Manuals.
Except as expressly provided in this Agreement, all terms, conditions, warranties, inducements or representations, whether express or implied, relating to this Agreement are excluded. Global Health will not be under any liability to the Customer in respect of any loss or damage, including consequential loss or damage, incurred directly or indirectly in respect of the Software and/or the provision of the Maintenance and Enhancement Services. The Customer will not be under any liability to Global Health in respect of any loss or damage, including consequential loss or damage, incurred in respect of the Software other than payment of the Initial Licence Fee and Annual Licence Fee.
Where any Act of Parliament implies any term, condition or warranty into this Agreement, such term, condition or warranty shall be deemed to be included in this Agreement. The liability of Global Health for any breach of a term, condition or warranty in this Agreement is limited to Global Health’s choice of any one or more of the following:
A. Replacement of the Software or re-supply of equivalent goods;
B. Repair of the Software;
C. Payment of the cost of replacement of the Software or equivalent goods;
D. Payment of the cost of repair of the Software.
The Customer warrants that it has not relied upon any representation made by Global Health, which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document produced by Global Health, other than the Operating Manuals.
ANNUAL LICENCE FEE – SERVICES INCLUDED
In consideration of the payment by the Customer of the Annual Licence Fee, Global Health agrees to provide the following services until the Licence Expiry Date:
1. Extended Warranty Service
If the Customer notifies Global Health in writing of program malfunctions or defects, Global Health shall provide fixes or workarounds to remedy the program malfunction or defect.
Resolution of defects which do not impact on the fundamental operability of the Software may, at the option of Global Health, be scheduled by Global Health for release in future versions.
2. Right to Updated Versions
Global Health will release updated versions of the Software from time to time to provide enhancements to meet customer demands and advances in information technology. Enhancements are based upon feedback from customers, legislative/regulatory changes and market trends.
3. 100% Trade-in of Purchase Price
Global Health will provide a credit to the customer of the full purchase price of any Software acquired from Global Health if the customer elects to upgrade this product. For example, this may be:
(i) upgrading a licence from 4 users to 8 users.
(ii) an operating system platform change (eg. Microsoft NT to UNIX etc.) subject to certified product availability from Global Health.
The Customer agrees that Global Health is entitled to withhold the provision of all and any services to the Customer if the Customer fails to make any payment under this Agreement.
ANNUAL LICENCE FEE – SERVICE EXCLUSIONS
The following is not covered by the Annual Licence Fee and will be charged and invoiced to the Customer on Global Health standard rates and terms:
1. Professional services for performing work related to items such as on-site service, support, installation, training, correction of corrupt data not caused by an Software defect or malfunction (eg. errors due to hardware/operating system problems, operator keying errors or misuse), reloading, configuring or tuning of the database application;
2. Out of pocket expenses for items such as ISD or IDD charges, travel, accommodation, processing, handling, shipping and media charges, which shall be charged to the Customer at cost.
ANNUAL LICENCE FEE – WARRANTY LIMITATION
Any warranty given by Global Health in this Agreement is subject to the Customer using the Software strictly in accordance with the terms of this Agreement and maintaining a current version of the Software (and associated operating environment). A current version of the Software (and associated operating environment) for the purpose of this clause means a version of the Software (and associated operating environment) which is in general commercial use and has been released within the previous 18 months or is the latest release.
ANNUAL LICENCE FEE
Prior to the Licence Expiry Date, Global Health may issue the Customer with an invoice for the renewal of this Agreement. The fee for renewal of this Agreement will be the prevailing Annual Licence Fee for the Software. Global Health may, in its absolute discretion, increase the Annual Licence Fee annually by the Australian Bureau of Statistics Health sector Consumer Price Index for the preceding 12 months. If the Customer continues to use the Software past the licence expiry date, the Customer agrees that this Agreement is renewed for 12 months on the same terms and conditions except for any fee variation(s).
OWNERSHIP OF INNOVATION
The Customer acknowledges any discoveries, inventions, patents, designs or other rights arising out of the performance of the Agreement are the property of Global Health.
If a party is in breach of this Agreement or any other agreement between the parties, the other party may give the party in breach a notice requiring it to remedy the breach. If the breach is not remedied within 60 days of receipt of that notice, the party giving notice may terminate this Agreement and all other agreements between the parties.
In addition, this Agreement may be terminated at any time and without cause, by either party by the giving of not less than three (3) months’ notice in writing to the other party of the proposed termination.
On termination, the Customer shall pay to Global Health all costs and expenses, including legal and other fees incurred including:
1. any arrears of the Licence Fee, incurred in respect of the Software or this Agreement;
2. any licence or other fees and costs in respect of all third party software which is retained by the Customer; and
3. an administration fee calculated at 20% of the total amount payable under this Agreement.
END OF AGREEMENT
If the Agreement expires or terminates, the Customer will immediately cease to use the Software and within 14 days return it to Global Health. The Customer will completely erase or destroy any copies of the Software and the Operating Manual in its possession and shall certify in writing in a form specified by Global Health that they have been destroyed.
The Customer will pay all taxes, duties, fees or other government levies or charges which may be imposed on or in respect of the Software or the Software Maintenance Services.
The Customer will not, either during the term of this Agreement or for a period of 12 months after the termination of this Agreement, endeavour to induce away from Global Health or any related corporation of Global Health any of its employees, agents or sub contractors or to cause them to breach their respective employment or other contracts with Global Health.
The Customer will treat as confidential information relating to the Software, Global Health or the clientele of Global Health and will not cause to be copied or disclosed any details of such information to a third party, without Global Health’ prior written consent. The Customer will only use such information to enable it to use the Software in a manner reasonably contemplated by this Agreement.
Global Health will treat as confidential information it acquires from the Customer relating to the operation of the business of the Customer or the clientele of the Customer and will not cause to be copied or disclosed any details of such information to a third party, without the Customer’s prior written consent. Global Health will only use such information to enable it to use the Software in a manner reasonably contemplated by this Agreement.
This agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.
This Agreement shall be governed by the laws of the State of Victoria.
SPECIAL TERMS AND CONDITIONS
Where applicable, the provisions of the Special Terms and Conditions shall prevail over the other Terms and Conditions of this Agreement to the extent of any inconsistency.
1. All third party software and components are supplied to the Customer on the respective third party’s terms and conditions. The Customer agrees that it is the Customer’s sole responsibility to complete and execute all documents (if any) required by the third party and deliver the same to Global Health prior to installation of such third party software or components and indemnifies Global Health against all claims or losses arising from the Customer’s failure in relation to the same. Global Health does not provide any warranty whatsoever and excludes all liability in respect of such third party software and components to the fullest extent permitted by law. Where the third party software is the MIMS database and/or software, the Customer agrees that use of the MIMS database and/or software with the Software is subject to the Customer having a valid licence to use the MIMS database and/or software and upon the termination of the Customer’s MIMS licence for whatever reason the Customer’s licence to use the MIMS database and/or software as an integrated part of the Software shall automatically terminate.
2. The Customer agrees that it will be liable in full for payment of all third party software and components which are supplied through Global Health and further agrees that payment to Global Health for all third party supplies are immediately due and payable upon signing of this Agreement.
3. Notwithstanding anything to the contrary, the total amount payable under this Agreement is valid for a period of six (6) months from the date this Agreement is signed by the Customer. Any delay in the commencement of delivery of the Software which exceeds six (6) months and which is not caused by Global Health will result in the total contract amount becoming immediately due and payable by the Customer to Global Health upon the expiry of six (6) months from the date this Agreement is signed by the Customer. The supply of Software and third party software and components after 6 months shall be subject to re-quotation at prevailing prices and the difference (if any) shall be payable pro-rata by the Customer to Global Health in accordance with the Schedule of Payments.
4. The Customer agrees that notwithstanding the Schedule of Payments, in the event of any delays exceeding 30 days which are not caused by Global Health, all software and services supplied to the Customer up to the date when the delay first occurred shall become immediately due and payable by the Customer to Global Health.
5. For new installations, Global Health and the Customer will test the Software in accordance with its standard test specifications and acceptance tests. If the Software passes the standard test specifications and acceptance tests, then the Customer will advise Global Health in writing of the satisfactory completion of acceptance tests or otherwise notify Global Health that the Software has not passed the acceptance tests. In the absence of notice by the Customer, the acceptance tests will be deemed to be passed after 14 days of Global Health’s notice to the Customer that the Software is ready for acceptance testing.
6. Global Health advises the Customer that the Software may be interfaced with 3M Software, however the 3M Software does not test, check, confirm, or otherwise validate any output produced by the Software, including any proposed or suggested codes, and that 3M has no responsibility for any inaccurate or incomplete output produced by the Software.