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.
