PRACTICE MASTER PRO LICENCE
AGREEMENT
1.
DEFINITIONS
In this Agreement:
1.1
Agreement
means the terms and conditions of this document
, the definitions and
choices of Software, type of computer on which the Software is licensed for
use, Fees, Taxes, types of use, Licence Periods or other metrics that apply to
the Software or Support that the User selects from the Sign On Page as part of
the sign on process.
1.2
Australian
Consumer Law
means the
Competition
and Consumer Act
2010 (Cth).
1.3
Confidential
Information
means any and all information concerning the other party’s
business, including information marked as confidential, that the discloser
treats as confidential or that the recipient knows or ought to know is
confidential, but does not include information that:
(a)
is in the public domain (other than as a result
of unauthorised disclosure);
(b)
the recipient already possesses at the time of
disclosure (unless the information was received through unauthorised disclosure
or is subject to prior confidentiality obligations); or
(c)
is independently developed or acquired by the
recipient (other than as a result of unauthorised disclosure).
1.4
Credit
Card
means any valid credit card, debit card or charge card that Practice
Master accepts for payment from time to time in its discretion.
1.5
Fees
means the fees payable for the Software license and Support, as defined by the
User’s selection on the Sign On Page.
1.6
Intellectual
Property Rights
includes copyright, trademark, service mark, patent,
design, trade secret, or other proprietary right, any right to registration of
such rights, or any similar rights protected by statute, from time to time
.
1.7
Licensee
means the User’s employer, or if the User is self employed, Licensee is the
person who clicks “I Agree” as part of the sign on process.
1.8
Licence
Key
means any form of lock, password or other mechanism that may be used to
control access to, or manage use of, the Software.
1.9
Licence
Period
means the period of this Agreement from the date that the User
clicks “I Agree” as part of the sign on process and for such period as is
defined by the User’s selection on the Sign On Page, (unless the Agreement is
terminated earlier in accordance with its terms). The License Period is 1 year unless stated
otherwise on the Sign On Page.
1.10
Practice
Master
means Practice Master Pty Ltd, ACN 158 422 032.
1.11
Sign On
Page
means the webpage on the Practice Master website which sets out the
definitions and choices of Software, type of computer on which it will be
licensed for use, Fees, Taxes, types of use, Licence Periods or other metrics
that apply to the Software or Support that may be selected by the User as part
of the sign on process.
1.12
Software
means the software programs identified on the Sign On Page, and includes its
online help information, and any minor updates to that Software.
1.13
Support
means the defect correction service and right to receive minor updates to the
Software, as described in clauses
3.1
to
3.3
.
1.14
Taxes
includes goods and services taxes or other sales taxes, duties, withholding
taxes, levies, imposts or other charges or duties levied by any federal, state
or local government which arise out of or in connection with the Software, Support
or this Agreement, and any interest, penalties or liabilities incurred on such
amounts, but excludes taxes based on the net income of Practice Master.
1.15
User
means the person who clicks “I
Agree” as part of the sign on process and thereby accepts the terms and
conditions of this Agreement.
1.16
The words "includes" or
"including" are not words of limitation.
1.17
This Agreement must be read subject to any
non-excludable provisions of the Australian Consumer Law.
2.
LICENCING
2.1
On the date that the User clicks “I Agree” as
part of the sign on process, and subject to receipt of the Fees and Taxes,
Practice Master grants to Licensee a non-exclusive, non-transferable, personal right,
during the Licence Period:
(a)
to download the Software and install it on a
computer of the type stated on the Sign On Page;
(b)
to run (and to copy the Software only to the
extent that it is necessary to run) the Software on the computer of the type
stated on the Sign On Page for the purpose of the administration of Licensee’s
own health care practice.
2.2
Nothing in this Agreement permits Licensee to:
(a)
use the Software to process any data other than
that owned by Licensee;
(b)
use the Software to provide any facility
management or service bureau service, or for the benefit of any third party;
(c)
copy, adapt, translate, publish, communicate to
the public, or create any derivative work or translation of the Software,
unless expressly permitted by law;
(d)
sub-license, lease, rent, loan, assign, novate
or otherwise transfer the Software to any third party;
(e)
disclose the Software to any third party (other
than to any of Licensee’s subcontractors who are bound by obligations of
confidentiality which are no less restrictive than those specified in clause
8.1
and who are using the Software solely for Licensee’s authorised
use of the Software);
(f)
reverse engineer, reverse compile, de-compile or
disassemble the object code of the Software or any part of the Software, or
otherwise attempt to derive the source code of the Software, except to the
extent the permitted by law;
(g)
remove, alter or obscure any Practice Master
trademarks, or any proprietary or restricted use notice or warning or
disclaimer on the Software; or
(h)
allow the Software to become the subject of any
charge, lien or encumbrance.
2.3
Practice Master does not grant any right of
access or use of the source code of the Software, except to the extent
permitted by law.
3.
SUPPORT AND UPDATES
Warranty
Against Defects
3.1
Licensee may report any defect in the Software
to Practice Master via Practice Master’s website support page
www.practicemaster.com.au/Support
or
via email to
support@practicemaster.com.au
Practice Master will use reasonable efforts
to remedy material defects in the Software within a reasonable period. Any remedies to defects will be released by
way of a minor update that is released generally to all supported customers,
unless agreed otherwise on a case by case basis.
3.2
Where Licensee is exercising its rights in
respect of a “Warranty Against Defects (as defined by Regulation 90, issued
under the Australian Consumer Law) then, in accordance with that Regulation:
The services are provided by Practice
Master Pty Ltd ACN 158 422 032 of 6, Wantima Street, Noosa Heads, QLD 4567, email
address:
support@practicemaster.com.au
In
order to make use of this service Licensee must contact Practice Master during
the License Period using the form on the website support page
www.practicemaster.com.au/Support
or via email at
support@practicemaster.com.au
The
costs for the service that Practice Master provides as a Warranty Against Defects
are included within the Fees. No additional
fees are payable by Licensee for this service.
Licensee is responsible for any expenses Licensee incurs in using this
service.
The
statement in italics below is required to be included in these terms and
conditions under Regulation 90.
“Our goods come with
guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund
for a major failure and for compensation for any other reasonably foreseeable
loss or damage. You are also entitled to
have the goods repaired or replaced if the goods fail to be of acceptable
quality and the failure does not amount to a major failure.”
The
benefits that Practice Master provides to consumers under this Warranty Against
Defects are in addition to any other rights or remedies the consumer may have
in respect of these goods or services under the Australian Consumer Law.
3.3
If and when Practice Master issues a minor update
to the Software during the License Period (as denoted by an increase in the
integer to the right of the decimal point) Licensee may download this update
from Practice Master’s website during the License Period without charge.
New
Releases
3.4
If Practice Master issues a new version of the
Software, (what constitutes a new release is as determined by Practice Master
in its sole discretion, but is usually a version of the Software that is denoted
by an increase in the integer to the left of the decimal point), this is a new
product and may be subject to different terms and conditions. Any new version may incur an increase in
license fee to acquire.
4.
DELIVERY
4.1
Promptly following registration on the Sign On
Page, Practice Master will provide Licensee with a License Key and make the
Software available for download from Practice Master’s website.
4.2
Licensee is responsible for downloading the
Software and installing it on the relevant computer. If the Software fails to download and install
properly Licensee should promptly contact Practice Master and Practice Master
will assist Licensee to obtain a copy of the Software.
4.3
All Software is deemed accepted by Licensee upon
successful download onto the computer.
5.
PAYMENT
5.1
Licensee must pay any Fee described on the Sign
On Page or displayed on the website for the Software and Support selected by
the User on the Sign On Page and all related Taxes using a Credit Card, such
payment must be made at the time the User completes their free evaluation
period.
5.2
If Licensee wishes to:
(a)
enter into a new License Agreement for the
Software and Support at the end of the Licence Period; or
(b)
acquire other software programs or services,
then Licensee may acquire it via commination
with Practice Master or by going through the sign on process on Practice
Master’s website and selecting the appropriate item from the Sign On Page. Any such arrangement is a separate contract
and will be offered at Practice Master’s then current terms and conditions and
fees.
5.3
Where the Fees and Taxes are denominated by Practice
Master in Australian dollars but Licensee is using a Credit Card that is not
issued in Australia, Licensee agrees:
(a)
to pay any charge from the provider of the
Credit Card for an international transaction; and
(b)
to use the exchange rate used by the provider of
the Credit Card for the conversion of the Fees, Taxes or other amounts payable
under this Agreement into Australian dollars.
5.4
Licensee irrevocably authorises Practice Master
to deduct from any Credit Card provided to Practice Master any:
(a)
Fees and Taxes due under this Agreement from
time to time;
(b)
charge backs or fees, including any related
Taxes, incurred by Practice Master for any failed transaction from the Credit
Card, as well as Practice Master’s then current administration fee (as set out
on the invoice) for dealing with any failure to receive payment; and
(c)
loss, damage or expense that Practice Master
suffers as a result of your wilful, unlawful, negligent act or omission or any
breach of this Agreement, as determined by Practice Master in its discretion.
5.5
If there is any failure to make payment by the
Credit Card by the due date for any reason, including that the Credit Card
ceases to be valid, ceases to be authorised for debiting any amount stated in
this Agreement or there is insufficient funds in the relevant account, then Licensee
must within 7 days:
(a)
provide an alternative Credit Card and authorise
all amounts due to be deducted from that Credit Card; and/or
(b)
make payment of all amounts due by another
payment method agreed with Practice Master.
5.6
All
payments under this Agreement must be made free and clear and without deduction
for any and all present and future Taxes. Payments
due to Practice Master under the
Agreement must be increased so that
amounts received by Practice Master, after provisions for Taxes and all Taxes
on such increase, will be equal to the Australian dollar amounts required under
the Agreement, as if no Taxes were due on such payments.
6.
WARRANTIES
AND GUARANTEES
6.1
Licensee represents and warrants that Licensee will
perform all of its obligations to Practice Master, and ensure that any Software
is used, in compliance at all times with all foreign, federal, state and local
statutes, orders and regulations, including those of any governmental agency
that are applicable to Licensee in performing its obligations to Practice
Master or to the use of any Software.
6.2
Licensee acknowledges and agrees that owing to
the nature of the Software and Support, Practice Master does not represent or warrant
that:
(a)
the Software will operate on or in combination
with any operating system or technology other than that stated on the Sign On
Page;
(b)
the Software will be continuously available for
download during the License Period; or
(c)
the Software and/or Support will meet Licensee’s
or any end user’s requirements;
(d)
any third-party software to which the Software
interfaces will continue to interface (or will continue to interface in the
same way) with the Software throughout the Licence Period where that third-party
software is updated or has a new release issued.
6.3
To the extent that Licensee is entitled to any
statutory guarantee under sections 54 to 59 of the Australian Consumer Law,
then to the extent that Practice Master fails to comply with such statutory
guarantee in respect of goods which are not goods of a kind that are ordinarily
acquired for personal, domestic or household use or consumption, Practice
Master’s liability is limited to one or more of the following, at Practice
Master’s option:
(a)
the replacement of the goods or the supply of
equivalent goods;
(b)
the repair of the goods;
(c)
the payment of the cost of replacing the goods
or of acquiring equivalent goods;
(d)
the payment of the cost of having the goods
repaired,
provided that it is fair and
reasonable for Practice Master to reply on this term.
6.4
To the extent that Licensee is entitled to any
statutory guarantee under sections 60 – 62 of the Australian Consumer Law, then
to the extent that Practice Master fails to comply with such statutory
guarantee,
in
respect of services which are not services of a kind that are ordinarily
acquired for personal, domestic or household use or consumption, Practice
Master’s liability for a failure to comply with such statutory guarantee is
limited to one of the following, at Practice Master’s option:
(a)
supplying the services again; or
(b)
payment of the cost of having the services
supplied again,
unless it is not fair or
reasonable for Practice Master to rely on this term of the Agreement.
7.
INTELLECTUAL PROPERTY RIGHTS
7.1
All Intellectual Property Rights in the Software
(including any adaptations and translations) are the exclusive property of Practice
Master (and its licensors, if any), or vest in or must be transferred to Practice
Master or its designee immediately upon creation, as the case may be.
7.2
Except for the rights expressly granted by
Practice Master to Licensee under this Agreement:
(a)
Practice Master and its licensors, if any,
reserve all right, title and interest in any Software (including any adaptation
or translation) and all Intellectual Property Rights in them;
(b)
no right, title or ownership interest in or to
any Software (including any adaptation or translation), whether by implication,
estoppel or otherwise, is granted, assigned or transferred to Licensee under or
in connection with this Agreement.
8.
INFORMATION
8.1
Each party agrees that it must not permit the
use of the other party’s Confidential Information by, nor must it disclose the
other party’s Confidential Information to, any third party, other than:
(a)
Practice Master may disclose Licensee’s
Confidential Information to Practice Master’s contractors (and any company,
entity or legal person in Practice Master’s group of companies, and any of
their respective contractors); and
(b)
either party may disclose it to their
professional advisers on a need to know basis,
unless such use or
disclosure is specifically authorised in writing by the other party or by
law. Each party must only use the
other's Confidential Information for the purpose of performing the obligations
under this Agreement, or if the recipient is a professional adviser, the
professional adviser may use the Confidential Information for purposes
connected with advising on or reporting on this Agreement.
8.2
Licensee
must ensure that each person who is issued with a Licence Key does not disclose
their Licence Key to any other person.
8.3
Each party must use any Personal Information of
which it becomes aware in connection with the Agreement in accordance with the
law. Practice Master will comply with
all relevant privacy law and its privacy policy (as posted on Practice Master’s
website from time to time) when dealing with any Personal Information of which
it becomes aware in connection with this Agreement.
8.4
Licensee warrants that:
(a)
Licensee has obtained the informed consent from
each individual about whom Practice Master will obtain Personal Information
from Licensee in connection with this Agreement; and
(b)
Practice Master, its group companies, their
respective subcontractors and their permitted successors, assignees and
sub-licensees may use that individual's Personal Information in any manner that
may be reasonably contemplated by this Agreement, including a transfer
overseas.
8.5
Licensee must permit Practice Master, or its
nominee, to inspect and have access to the premises (and to the computer located
there) at or on which the Software is being kept or used, the usage logs in the
Software and to any records kept in connection with this Agreement, for the
purposes of ensuring that Licensee is complying with the terms of this
Agreement. If Practice Master requires
access to the Licensee’s premises then:
(a)
Practice Master must provide reasonable advance
notice to Licensee;
(b)
any access must be during business hours or
other times agreed by Licensee;
(c)
Practice Master must use reasonable endeavours
to minimise any disruption to Licensee’s business; and
(d)
if Practice Master uses a nominee to conduct the
inspection, such nominee must not be a competitor of Licensee and must sign a
non-disclosure agreement with Practice Master that protects any information
found during the inspection on terms that are no less protective than those
terms that included in clause
8.1
of this Agreement.
9.
LIMITATION OF LIABILITY
AND
INDEMNITY
9.1
For any liability that is not covered in clauses
6.3
to
6.4
,
to the extent permitted by law, Practice Master’s liability to Licensee for any
claim whether it be in contract (including under an indemnity), tort, breach of
statutory duty or otherwise, arising out of or in connection with the Software,
Support, this Agreement or
the
relationship between the parties, shall be limited to direct damages that do
not exceed $500 in aggregate.
9.2
To the extent permitted by law, Licensee
indemnifies and holds harmless Practice Master against any loss, damage or
expense incurred or suffered by Practice Master as a result of any third-party
claim that arises out of or in connection with Licensee’s use of the Software.
10.
TERMINATION
10.1
Practice Master may terminate the Agreement, in
whole or part, by giving Licensee notice if:
(a)
payment is not received as a result of the sign
on process, or there is a chargeback for any reason other than Practice Master
having to provide a refund as required by law; or
(b)
Licensee breaches any other provision of this
Agreement and the breach has not been remedied within 7 days of notice from Practice
Master specifying the breach.
10.2
Licensee may terminate the Agreement by giving Practice
Master written notice if Practice Master breaches any provision of this
Agreement and the breach has not been remedied within 30 days of written notice
from Licensee specifying the breach.
10.3
Where the Agreement may be terminated under the
provisions of the Australian Consumer Law, Licensee may also terminate the
Agreement in accordance with those provisions in the Australian Consumer Law.
10.4
Practice
Master may use any technical means to enforce its rights under this Agreement,
including preventing further downloads or preventing access to the Software
through using a License Key.
11.
GENERAL
11.1
Nothing in this Agreement is to constitute or be
deemed to constitute a partnership among the parties, joint venture, fiduciary
relationship or is deemed to permit any party to act as agent for any other for
any purpose. Neither party will have
authority to bind the other or contract in the name of the other in any way or
for any purpose.
11.2
If any part of this Agreement is for any reason
declared invalid or unenforceable the validity of the remaining portion of this
Agreement will not be affected and the remaining portion will remain in force.
11.3
The provisions of this Agreement can only be
varied by written document signed by both parties. A waiver of any of the rights of a party is
not effective unless the extent of the waiver is expressly set out in a written
document that is signed by that party.
11.4
To the extent that there is a conflict between
the terms and conditions in this document and the terms on the Sign On Page,
the terms on the Sign On Page shall prevail.
11.5
The parties consent to this Agreement being
signed or varied through electronic communication using electronic signatures.
11.6
To the extent permitted by law, this Agreement:
(a)
records the entire agreement between the parties
in relation to its subject matter;
(b)
supersedes all previous negotiations, understandings
or agreements in relation to the subject matter and expressly excludes the
pre-printed terms and conditions of Licensee’s purchase order (if any).
11.7
The Agreement is governed by the laws of New South
Wales, and both parties agree to submit to the exclusive jurisdiction of the
courts in New South Wales.
The United
Nations Convention on Contracts for the International Sale of Goods does not
apply to this Agreement.
12.
HUMAN RIGHTS
12.1
Practice Master is committed to respecting human
rights.
Practice Master opposes all forms of
slavery and human trafficking, and are committed to taking steps and are taking
steps to ensure it does not occur in our operations or supply chains.
