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BPACNZRx Customer Agreement

1. Customer Agreement

By using the licenced BPACNZRx software the Customer acknowledges receipt of this document and understands its contents. Use of BPACNZRx shall imply that the Customer and BPACNZ Limited agree on the deliverables, customer responsibilities and confidentiality of records, and that both parties consent to be legally bound by all terms and conditions contained in the Agreement.

The initial term of this Agreement shall commence on the Service Begin Date and shall continue for 12 months from the Subscription Begin Date.

BPACNZ Limited shall notify Customer of the Service Begin Date, Subscription Begin Date and Licence Renewal Date.

Renewal is optional. The Agreement will automatically renew for additional successive one year terms unless Customer notifies BPACNZ Limited in writing at any time prior to the Licence Renewal Date of its intent to not renew. Renewal year pricing is subject to current renewal rates at the time of renewal. BPACNZ Limited may notify Customer in writing at least ninety (90) days prior to the Licence Renewal Dateof its intent to not renew.

Taxes

Quoted licence fees do not include taxes or duties. If BPACNZ Limited is required to pay or collect any tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on BPACNZ Limited net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of invoices and supporting documentation for the taxes and duties charged.


2. BPACNZ Limited Deliverables

Licence

BPACNZ Limited grants a non-exclusive, non-transferable, term-based, right-to-use licence to access and execute BPACNZRx software on supported practice systems.

Authorised Users

Customer shall use the BPACNZRx software for affiliated entities that control, or are controlled, by the customer. Customer shall not permit BPACNZRx to be used by or for the benefit of anyone other than the Authorised Users. Customer shall not have the right to re-licence or sell rights to access and/or use BPACNZRx, or to transfer or assign rights to access or use BPACNZRx.

Intellectual Property

Customer may not modify, translate, reverse engineer, de-compile, or create derivative works based upon BPACNZRx software. The Customer agrees to use BPACNZRx in a manner that complies with all applicable laws including intellectual property and copyright laws.

Title

The Proprietary Rights embodied in the installed BPACNZRx software system are the sole and exclusive property of Medtech Limited.

Hold Harmless

BPACNZ Limited represents and warrants that BPACNZ Limited has the authority to licence BPACNZRx and shall defend, indemnify, and hold the Customer harmless from claims or damages arising out of (1) the lack or right of authority to licence BPACNZRx, or (2) infringement of any copyright, trade secret, or patent known to BPACNZ Limited as the result of a current, unmodified copy of BPACNZRx; provided BPACNZ Limited is promptly notified in writing of any such suit or claim. Furthermore, the Customer must permit BPACNZ Limited to defend, compromise, or settle any such suit or claim and provide all available information and reasonable assistance to enable BPACNZ Limited to do so.

Audit

BPACNZ Limited reserves the right to audit the customer to ensure licence use compliance once per year with fourteen (14) business days written notice, limited to BPACNZRx software.

Upgrades

The Customer is entitled to interim and code correction releases within the release version and major upgrades during the term of this Agreement.

Support

The Customer is entitled to product support from bpacnz Limited and Medtech Limited in accordance with the terms of their Medtech 32 or Medtech Evolution Licence Agreement.


3. Customer Responsibility

Practice Management Systems and Internet Connections

The Customer shall be responsible for providing, at its own expense and risk, all host practice management systems, internet devices, internet connections, and Internet Service Providers necessary for the use of BPACNZRx.

Principal Administrator

The Customer shall designate one employee as the Principal Administrator to communicate with BPACNZ Limited regarding licensing issues. The Customer may change the Principal Administrator from time to time by written notice to BPACNZ Limited’s contact person. All notices and communications from BPACNZ Limited shall be directed to the Customer Principal Administrator.

Cooperation

Customer acknowledges that certain services and obligations of BPACNZ Limited may be dependent on Customer providing certain data, information, or assistance to BPACNZ Limited from time to time. Customer acknowledges that such cooperation may be essential to the performance of services by BPACNZ Limited.

The parties agree that any delay or failure by BPACNZ Limited to provide services hereunder which is caused by Customer’s failure to provide timely co-operation reasonably requested by BPACNZ Limited shall not be deemed to be a breach BPACNZ Limited’s performance obligations under this Agreement.


4. Termination

Termination for Cause

If either Party fails to comply with any of the material terms and conditions of this Agreement, the non-defaulting party may terminate this Agreement upon thirty (30) days written notice to the defaulting party specifying such breach, unless within the period of such notice, all breaches specified therein have been remedied.

Notwithstanding the foregoing, BPACNZ Limited shall have the right to terminate this Agreement immediately upon giving notice to Customer if Customer becomes insolvent, assigns or attempts to assign its business assets for the benefit of creditors, institutes or has instituted against it proceedings in bankruptcy, or dissolves or liquidates the business. In the event that BPACNZ Limited terminates this Agreement for cause, BPACNZ Limited will retain all subscription licence fees already paid to BPACNZ Limited. These fees will not be refunded to Customer. In the event Customer terminates this Agreement for cause, the prorated licence fee for the paid portion of the subscription will be refunded to Customer.

Upon termination for any other cause, Customer must immediately discontinue use of and destroy all copies of software and documentation in its possession.

If Customer does not pay any subscription licence fee or reimbursement due and payable under this Agreement within 90 days of the due date BPACNZ may, at its sole discretion, discontinue Customer access to BPACNZRx Monthly Drug updates or other product updates, in which case users will be warned that the medications information held in BPACNZRx may be out of date.

Continuing Obligations

The following obligations shall survive the expiration or termination hereof: (1) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (2) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (3) the payment of taxes, duties, or any monies due.


5. Ownership and Confidentiality

Ownership

Title to the Proprietary Rights embodied in the BPACNZRx software system shall remain in and be the sole and exclusive property of Medtech Limited. Customer shall not alter, change, or remove any proprietary notices or confidentiality legends placed in the BPACNZRx software system.

Confidentiality of BPACNZRx Software

Customer acknowledges that the BPACNZRx software embodies logic, design, and coding methodology, which constitute valuable confidential information that is proprietary to Medtech Limited and its licensors. Customer shall safeguard the right to access the BPACNZRx software system using the same standard of care which Customer uses for its similar confidential materials, but in no event less than reasonable care.

Confidentiality of Patient information

All information, including personal confidential information disclosed to BPACNZ Limited in connection with the performance of this Agreement shall be held as confidential by BPACNZ Limited and shall not, without prior written consent of Customer, be disclosed other than for the performance of this Agreement. BPACNZ Limited shall safeguard the confidentiality of patient information using the same standard of care that BPACNZ Limited uses for its similar confidential materials, but in no event less that required by the current prevailing standards of the New Zealand legal framework governing the use of personal confidential data in health care. The foregoing obligation shall not apply to any information which: (1) is known, or hereafter becomes, through no act of failure to act on the part of BPACNZ Limited, generally known or available; (2) is known by BPACNZ Limited at the time of receiving such information as evidenced by its written records; (3) is hereafter furnished to BPACNZ Limited by a third party, as a matter of right and without restriction on disclosure; (4) is independently developed by BPACNZ Limited as evidenced by its written and dated records and without any breach of this Agreement; or (5) is the subject of a written permission to disclose provided by Customer. Further notwithstanding the forgoing, disclosure of patient information shall not be precluded if such disclosure: (1) is in response to a valid order of a court or other government body of New Zealand; (2) is otherwise required by law.


6. Warranties

Limited Warranty

During the term thereof, BPACNZ Limited, warrants that the BPACNZRx software system integrates with the Customer’s practice management system and will conform to, operate, and be accessible through the Customer’s practice management system.

Suitability and Liability

Neither Medtech Limited nor BPACNZ Limited warrant that the BPACNZRx software will be error-free or meet any particular criteria, performance, quality, accuracy, purpose, or need assumed by the Customer. In no event shall Medtech Limited, BPACNZ Limited, or the Customer be liable to the other for any indirect or consequential damages.

Remedy

BPACNZ Limited’s sole and exclusive liability for breach of this warranty shall be limited to that portion of the subscription licence fees paid when the BPACNZRx software does not conform to the warranted specifications.

Warranty Disclaimers

Except for the limited express warranty provided above, BPACNZ Limited does not make any warranty of any kind, express or implied, and BPACNZ Limited specifically disclaims the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, systems integration, and data accuracy. Customer acknowledges that no representations other than those contained in this Agreement have been made respecting the BPACNZRx software system or services to be provided in this Agreement, and that the customer has not relied on any representation not expressly set out in this Agreement. Further, customer acknowledges and agrees that BPACNZ Limited has no control over the Internet, that BPACNZ Limited is not liable for the content or loss of any data transferred either to or from Customer or stored by the Customer on Customer Servers and that BPACNZ Limited is not liable for the discontinuance of the operation of any portion of the Internet or possible regulation of the Internet which might restrict or prohibit the operation of the BPACNZRx software system.

Proprietary Rights Warranty and Indemnification

BPACNZ Limited represents and warrants that BPACNZ Limited has the authority to licence the right to the BPACNZRx software system, which is granted in this Agreement. BPACNZ Limited, shall defend, indemnify, and hold Customer harmless from claim or damages arising out of (1) the lack or right of authority to licence the BPACNZRx software system, or (2) infringement of any copyright, trade secret, or patent known to BPACNZ Limited as the result of a current, unmodified copy of the BPACNZRx software system, provided that BPACNZ Limited is promptly notified in writing if any such suit or claim arises, and further provided that Customer permits BPACNZ Limited to defend, compromise, or settle same, and provides all available information and reasonable assistance to enable BPACNZ Limited to do so. The foregoing is exclusive and states the entire liability of BPACNZ Limited with respect to infringements or misappropriation of any Proprietary Rights of the BPACNZRx software system.


7. Damages

Limitation of Damages

BPACNZ Limited’s entire, cumulative liability for money arising out of this Agreement shall be Limited to that portion of the subscription licence fees paid when the BPACNZRx software system does not conform to the specifications during the material breach of this Agreement by BPACNZ Limited.

Disclaimer of Incidental and Consequential Damages

In no event shall either party be liable to the other under any theory including contract and tort (including negligence and strict products reliability) for any indirect, special or incidents or consequential damages, even if the party causing such damages has been advised of the possibility of such damages.


8. Dispute Resolution

If either BPACNZ Limited or the Customer has a dispute with the other in connection with this Agreement, then the Party should refer the dispute to resolution in accordance with this clause.

The Party raising the dispute will provide written notice to the other Party. The notice will state the details of the dispute and a proposed remedy;

Both Parties will use its best endeavours to settle the dispute by agreement between the Parties and act in good faith and co-operate with each other to resolve the dispute.

If the dispute or claim is not settled by agreement between the Parties within ten (10) business days from the date of receipt of the original notice, then both parties agree that the matter will be referred to mediation with a mutually acceptable mediator, appointed if necessary by the Chairperson of the New Zealand chapter of LEADR.

If the dispute is not settled by mediation within twenty (20) business days of the commencement of that mediation process, then either party may pursue its rights and remedies under this Agreement as it sees fit.


9. Notice

Contact

All notices and communications to BPACNZ Limited shall be directed to:

BPACNZRx Administrator
PO Box 6032
Dunedin

Notices by Personal Delivery and Postal Mail

All notices given in writing shall be effective when either served by personal delivery or by certified or registered mail. To be effective, all such notices shall be addressed to the contact persons of the parties at their respective addresses as set forth above, or to such other addresses as either part may later specify by written notice.

Notices by E-mail

Notwithstanding the above provisions regarding notices by personal delivery and postal delivery, an electronic mail message sent by one party to the other shall be deemed to constitute an effective notice hereunder only if (1) the electronic mail message notice prominently states that it is being given under this Agreement and requests an e-mail response acknowledging receipt; and (2) the responding electronic e-mail message (a) clearly refers to the specific e-mail message to which it is responding, and (b) includes a copy of such text of such message. Further, to be effective, all such notices shall be addressed to the contact persons of the parties at their respective e-mail addresses as set forth above, or to such other e-mail address as either party may later specify by written notice.


10. Governing Law

This Agreement shall be construed under the laws of New Zealand.


11. Assignment

Customer Assignment

Customer shall not assign this Agreement or any right of interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without BPACNZ Limited’s prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

BPACNZ Limited Assignment

BPACNZ Limited’s rights under this Agreement may be assigned as part of a sale or transfer of BPACNZ Limited’s business or assets without the Customer’s prior approval.


12. Enforcement

The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party hereafter to enforce any provision hereof.


13. Entire Agreement

Understanding

This Agreement constitutes the entire understanding of the parties with Respect to the subject matter of this Agreement and merges all prior communications understandings, and agreements. This Agreement may be modified only by written agreement signed by the parties.


14. Force Majeure

All services in this Agreement may be subject to delays caused by war, fire, flood, accident, act of God, strikes, or other differences beyond the reasonable control of BPACNZ Limited. If BPACNZ Limited is unable, due to any of the foregoing contingencies, to supply the services to the Customer, the Customer agrees to accept as full and complete performance of services as BPACNZ Limited can make.

Made with by the bpacnz team