1. INTRODUCTION

1.1 Agreement: These Terms and Conditions, together with the Proposal and the Service Levels form the terms on which Medtech provides the products and services to You (Agreement).

1.2 Priority: If there is any inconsistency between these Terms and Conditions, the Proposal or the Service Level, the order of priority of documents shall be (1) the Proposal (2) the Terms and Conditions and (3) the Service Levels.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions: In these Terms and Conditions, capitalised terms have the following meaning unless the context otherwise requires:

“Additional Support” means the Support Services provided by Medtech in accordance with clause 6.5;

“Application Support” means the Support Services Medtech provides in relation to Product operation (as set out in more detail in clause 6);

“Business Day” means any day which is not a Saturday, Sunday or public holiday in Auckland, New Zealand;

“Cloud Hosting” means an environment hosted by a third party and provided to you by Medtech to access the Medtech 32 or Medtech Evolution Application;

“Cloud Support” means the Support Services Medtech provides in relation to Cloud Hosting and which are in addition to Application Support;

“Commencement Date” is the commencement date set out in the Proposal;

“Compatible Hardware and Software” means hardware and Database Software meeting the minimum specification requirements specified by Medtech on its website https://medtechglobal.com, Insight Portal, or as otherwise notified to You from time to time;

“Customer Data” means the data input by You, Permitted Users, or Medtech on your behalf for the purpose of using the Products;

“Database Software” means Microsoft Software and Interbase Software;

“Derivative Product” means any derivative work, technology, product or service based on the Products or any other intellectual property of Medtech;

“Fees” means the charges payable by You under this, including those that may be required for you to obtain the benefit of Database Software;

“Force Majeure” means any circumstance beyond the reasonable control of a party which results in a party being unable to perform any obligation due under this Agreement (or in Medtech’s case, renders performance significantly uneconomical). Such circumstances include, but are not limited to, any act of God, earthquakes, floods, storms, explosions, pandemics, fires and/or any natural disasters, Governmental restraint or other intervention or request, act of Parliament or other legislation or bylaw, but excludes any workforce or industrial action;

“GST” means tax as defined in the Goods and Services Act 1985;

“Initial Period” means the initial period of Your licence to use a Product, as set out in the Proposal;

“Intellectual Property” means all trade marks, service marks, inventions, patents, designs, copyrights, know-how, proprietary information, trade secrets, software and all rights and interests to use any of them, and any other right or interest generally recognised as intellectual property;

“Interbase Software” means software provided by Embarcadero Technologies Europe Ltd that is used in connection with the Products;

“Medtech”, “we”, “us” or “our” means Medtech Limited at Level 1, 48 Market Place, Auckland, NZ;

“Microsoft Software” means software provided by Microsoft Corporation Inc. that is used in connection with the Products;

“Network Services” means the particular form of internet access provided by Medtech to You to enable you to access the Products by Cloud Hosting;

“Permitted Users” means associates and employees of Your organisation, the maximum number of which is set out in the Proposal;

“Products” means the Medtech products stipulated in the Proposal, including all software provided by Medtech to You (excluding any embedded or integrated Database Software); Cloud Hosting provided through Network Services to which Medtech grants You access (as the case requires) including any standard upgrade and new version releases of the Products which Medtech makes available to its customers from time to time;

“Proposal” means the written proposal between You and Medtech setting out the specific terms relating to Products, Fees, licence period and Permitted Users;

“Related Parties” has the meaning set out in section 2(3) of the Companies Act 1993, together with directors and shareholders of the relevant company at the Commencement Date or at any later date;

“Renewal Period” means the renewal period set out in the Proposal (if any);

“Representatives” means Medtech’s employees, consultants and contractors;

“Service Levels” means Medtech’s priority classification and response times for Support Services and performance targets for Network Services which are available on our website support page https://medtechglobal.com and which may be updated from time to time.

“Support Services” means Application Support and/or Additional Support and /or Cloud Support (as applicable) provided by Medtech to You in accordance with clause 6;

“Term” means the Initial Period and any Renewal Period(s);

“Third Party Software” means software owned by a third party that is not Database Software;

“Third Party Vendors” means third party software or other service providers, authorised by Medtech and that provide services to You and/or Your customers/patients;

“Virus” means any device or thing (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices; and

“You” means the customer who purchases a licence to install, access and use the Products and Support Services pursuant to this Agreement.

2.2 Interpretation: In these Terms and Conditions, unless the context otherwise requires:

(a) headings are for convenience only and do not affect interpretation

(b) the singular includes the plural and vice versa;

(c) words denoting persons shall include any individual, principal, corporation, partnership, joint venture, association, organisation, trust, state, agency of a state, municipal authority, government or any statutory body in each case whether or not having separate legal identity;

(d) use of the terms “including”, “includes” and “include” shall be without limitation;

(e) any covenant or agreement on the part of two or more persons shall bind those persons jointly and severally;

(f) any reference to “month” or “monthly” shall mean respectively calendar month or calendar monthly;

(g) references to these Terms and Conditions or any document or statement (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time; and

(h) reference to any statute, regulation, ordinance or bylaw shall be deemed to extend to all statutes, regulations, ordinances or bylaws amending, consolidating or replacing the same.

3. ACCESS AND USE OF PRODUCTS

3.1 Grant: For so long as you comply with this Agreement, Medtech grants You a non-exclusive, non-transferable, revocable licence for You and/or Your Permitted Users to use the Products during the Term, subject to the terms of this Agreement.

3.2 Parties in trade: In entering into this Agreement, you acknowledge and agree that:

(a) we are each ‘in trade’;

(b) the Products and Support Services are supplied to you and acquired by you in trade and for a business purpose; and

(c) the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded from this Agreement to the fullest extent permitted at law.

3.3 Permitted Users: You will ensure that:

(a) the number of individual users You authorise to access and use the Products shall not exceed the number of Permitted Users;

(b) each individual Permitted Users does not share their access with any other person unless that person has permanently become a Permitted User, in which case the first individual shall no longer have any right to access or use the Products; and

(c) each Permitted User shall be assigned a unique log-in name and password for their use of the Products, which shall be kept confidential.

3.4 Additions: During the Term, You may request Medtech to add new Permitted Users or new Products, subject to Medtech’s approval of this request, it shall grant You and/or the additional Permitted Users access to those Products, at the prevailing rate or such other rate agreed between the parties.

3.5 Representatives: If one of Your representatives accepts any part of this Agreement on your behalf (for example, by clicking “agree” when overseeing installation of Products) you shall be deemed to have accepted.

4. TERM

4.1 Term: This Agreement begins on the Commencement Date and continues for the Term unless terminated earlier under clause 16.

4.2 Automatic renewal: Unless one party notifies the other in writing that it wishes to terminate this Agreement at least six months prior to the expiry of the Initial Period (or any Renewal Period), this Agreement will renew automatically for the next Renewal Period (if any).

5. DELIVERY, INSTALLATION AND ACCESS

5.1 Delivery: Medtech will deliver the Products to You, or provide You with the relevant information to access the Products (as the case may be) on or before the Commencement Date.

5.2 Warranty: You warrant to Medtech that the hardware on which the Products are installed or accessed is Compatible Hardware and Software.

5.3 Systems audit: Notwithstanding clause 5.2, before Medtech delivers or grants You access to the Products, You will provide Medtech with an audit (or alternatively permit Medtech to carry out an audit itself) of your existing IT systems to determine their suitability for the Products. If Your IT systems are unsuitable for the Products, Medtech will make recommendations about how to remedy the deficiencies, and Medtech shall be entitled to delay the Commencement Date, installation and/or access until You implement Medtech’s recommendations.

5.4 Installation: Medtech shall at the time of delivery or granting access:

(a) install the Products on the Compatible Hardware and Software (if required) as You direct;

(b) convert Your existing databases into a format compatible with databases operated and supported by the Products; and

(c) set up and configure the Products ready for use at Your medical practice or business.

5.5 Customer assistance and access: To enable Medtech to perform its obligations under this clause 5, You shall provide Medtech with:

(a) reasonable access to the location where You have directed us to deliver, install and set up the Products;

(b) access to Your front desk and/or clinical database, servers, computer workstations and/or any other equipment linked to and/or used in conjunction with such database, servers and/or computer workstations (each of which shall be Compatible Hardware and Software);

(c) such assistance as may reasonably be required by Medtech; and

(d) reasonable working conditions and adequate work space.

5.6 Acceptance: If you are not satisfied with a Product you must notify Medtech within [5] days of installation pursuant to clause 5.4, after which time you are deemed to have accepted the Products. You may not reject a Product if it fails because (directly or indirectly):

(a) the server and/or computer workstations on which the Products are installed or accessed is/are not Compatible Hardware and Software; or

(b) You and/or Permitted Users failed to use the Products in accordance with Medtech’s instructions, the terms of this Agreement and/or for any purpose for which they were not designed.

5.7 Risk of loss or damage: The risk of any loss or damage to the Products will pass to You on completion of the installation in accordance with clause 5.4.

6. SUPPORT SERVICES

6.1 Provision: Throughout the Term, Medtech will provide You with Support Services as set out in this clause 6.

6.2 Support Centre: When You require Support Services, You must contact Medtech in the first instance by calling the designated phone number. A Medtech representative will make inquiries about Your query to assess:

(a) whether Your request relates to Application Support, Additional Support or Cloud Support; and

(b) the urgency of Your request, by applying the criteria set out in the applicable Service Level.

(c) The Medtech representative will assign Your query a support case reference number which You must retain until Your query is resolved.

6.3 Application Support: Subject to clause 6.6 and the exceptions set out herein, Medtech will use all reasonable endeavours to provide the following Application Support services to You without additional Fees:

(a) standard upgrade and new version releases of the Products which Medtech generally makes available to its customers;

(b) telephone helpdesk services during normal business hours on Business Days including:

(i) support in relation to Products, including providing reasonable assistance in investigating, diagnosing and recommending solutions for problems encountered during the use of the Products;

(ii) in relation to current versions of Database Software on a reasonable endeavours basis and to the extent the third party supplier of the Database Software provides support to Medtech. For the purposes of this clause “current versions of Database Software” shall mean the latest version available commercially or one version back;

(iii) referral of any hardware faults identified to an appropriate hardware supplier and/or hardware service provider;

(c) provision of on-site assistance if necessary, upon Your request (provided that You will pay for time and travel costs incurred by Medtech and/or its Representatives in providing such assistance).

6.4 Cloud Support: If you purchase Cloud Hosting, You must also purchase Cloud Support, subject to clause 6.6. You acknowledge that Cloud Hosting is managed by a third party host and Medtech will provide the following support services to You via the third party host, in addition to Application Support:

(a) provision of Network Services and maintaining them in accordance with the Service Levels;

(b) management and regular maintenance (including security and anti-virus protection) of the Cloud Hosting Medtech operating system; and

(c) routine back-ups of Your data that is integrated with the Cloud Hosting,

provided that Medtech is only required to provide the support services for Cloud Hosting that are offered by the third party host.

6.5 Additional Support: Notwithstanding clauses 6.3 and 6.4, Medtech may in its sole discretion provide additional services to You on request and for an additional fee on a time and materials basis, subject to Medtech providing You with a quote, and You accepting that quote.

6.6 Exclusions: Notwithstanding anything else in this clause 6, Medtech has no obligation to provide support services in the following circumstances, except that they may be provided or procured by Medtech (in its sole discretion) for an additional fee on a time and materials basis:

(a) support for any Third Party Software or for any operating systems supplied and/or installed by third party providers;

(b) recovery of data lost or corrupted as a result of an error by You;

(c) correction of any errors and/or defects caused by:

(i) the operation of the Products in any manner other than that specified by Medtech;

(ii) Your actions or failure to carry out Your obligations under this Agreement;

(iii) Your modification, revision, variation, merger and/or alteration of the Products not previously authorised by Medtech under clause 12.3;

(iv) the improper use, operation or neglect of either the Products or the Compatible Hardware and Software or Your breach of any obligation under any maintenance agreement in respect of the Compatible Hardware and Software;

(v) modifications to and/or customisation of any software not provided to You by Medtech;

(d) if You use the Products on equipment other than Compatible Hardware and Software;

(e) if You fail to install and use any standard upgrade or new version release of a Product;

(f) support for modifications or customisations of any software not provided to You by Medtech;

(g) if You fail to undertake correct database back-ups and restoration in accordance with the recommended frequency separately notified to You by Medtech; and

(h) if You do not otherwise follow instructions reasonably provided to You by Medtech.

6.7 Non-payment: Medtech is entitled to withhold the provision of Support Services if You fail to make any payment due under this Agreement.

7. OBLIGATIONS OF THE PARTIES

7.1 Medtech’s obligations: Medtech will use all reasonable endeavours to perform its obligations under this Agreement with reasonable skill and care and in accordance with applicable laws.

7.2 Your obligations: You will:

(a) provide Medtech with all necessary access to such information and equipment as may be required by Medtech, in order to meet its obligations under this Agreement. If there are delays in Your provision of such assistance, Medtech may adjust any agreed timetable or delivery schedule as reasonably necessary;

(b) comply with the terms of this Agreement and all applicable laws and regulations with respect to Your activities under this Agreement and in relation to the Products;

(c) use the Products only in the manner contemplated in this Agreement and otherwise in accordance with Medtech’s reasonable instructions;

(d) not copy, decompile or reverse engineer any of the Products;

(e) carry out all Your responsibilities set out in this Agreement in a timely and efficient manner. obtain and shall maintain all necessary licences, consents, and permissions necessary for Medtech, its contractors and agents to perform their obligations under this Agreement, to the extent that these are not provided by Medtech;

(f) not commit any act or omission the likely result of which is that Medtech’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Medtech’s interests;

(g) ensure that Your network and systems meet the standards for Compatible Hardware and Software;

(h) update and use the latest available version of the Products (as included in any general update release by Medtech);

(i) when using Network Services, comply with any acceptable use policy made available by Medtech from time to time;

(j) where relevant, be solely responsible for:

(i) procuring and maintaining all network connections and telecommunications links from Your systems to Medtech’s data centres; and

(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the Internet, except as otherwise expressly provided for in this Agreement.

7.3 Unauthorised access: You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Products and, in the event of any such unauthorised access or use, shall promptly notify Medtech.

7.4 Notification: You shall notify Medtech immediately on becoming aware of any of the Products being used without authorisation and/or in breach of our Agreement.

7.5 Permitted Users: You shall procure that each Permitted User:

(a) is informed of their obligations under this Agreement; and

(b) complies with such obligations; and

will be responsible for any breach of this Agreement by a Permitted User.

8. FEES AND CHARGES

8.1 Fees: You shall pay to Medtech the Fees as set out in the Proposal, or otherwise agreed in writing with Medtech.

8.2 Invoices: Medtech shall issue you with an invoice and each payment shall be due within 7 days of the invoice.

8.3 GST excluded: All Fees are exclusive of GST, and all other taxes, duties and surcharges payable in respect of the Products.

8.4 Review: Medtech may review the Fees at any time in its sole discretion. Any increase in Fees shall take effect 30 days from the date Medtech gives written notice to You of such increase.

8.5 Non-payment: If Medtech has not received payment of the Fees within 30 days of the due date specified in an invoice, and without prejudice to Medtech’s other rights and remedies:

(a) Medtech may disable Your password, account and access to Cloud Hosting and Medtech shall be under no obligation to reinstate your access to Cloud Hosting while the invoice(s) concerned remain unpaid; and

(b) Medtech may charge You interest in respect of the late payment of any sum due under this Agreement (at the rate of 5% per annum above the prime lending rate from time to time of Westpac Banking Corporation from the due date thereof until payment) and may also recover all costs (including but not limited to solicitor / client fees) incurred in relation to efforts to collect amounts due under this Agreement which are not paid by due date.

9. INTELLECTUAL PROPERTY

9.1 No rights transferred: All Intellectual Property rights in the Products are the exclusive property of Medtech or its licensors. This Agreement does not transfer to You any right, title or interest in respect of the Products other than the rights of usage expressly contemplated herein.

9.2 Ownership: Medtech or its licensors retain ownership of the Products and Derivative Products, both during and after the Term. For the purposes of this clause 9.2, “ownership” includes any direct and/or indirect interests of Medtech in and to the Products and/or any right (whether acquired under licence or otherwise) including Intellectual Property rights, to deal with the Products under this Agreement. You agree to execute (upon request by Medtech and in favour of Medtech and/or its nominee) any instruments, applications for letters patent, document and/or any other similar protection as Medtech may require to give effect to the provisions of this clause.

9.3 Developments: You must disclose all such generation, creation, development, and/or enhancement of Products to Medtech as soon as practicable, whether or not You have obtained Medtech’s prior consent in accordance with clause 12.3.

9.4 No contest: You shall not, and shall procure that Permitted Users do not, at any time during or after the term of this Agreement, directly or indirectly challenge or contest the ownership of the Products (including all the Intellectual Property rights and acquired ownership interests under clause 9.2) of Medtech.

9.5 Customer Data: Notwithstanding the foregoing, You shall retain the ownership of all Customer Data, whether or not used in connection with the Products, and, subject to this Agreement, Medtech and its Representatives shall keep confidential all such data.

10. DATA SECURITY AND PRIVACY

10.1 Applicable laws: You and Medtech acknowledge that compliance with the Privacy Act 2020 and the Health Information Privacy Code 2020 is a priority. The parties shall comply with the terms of this clause 10 and ensure that all Representatives and Permitted Users are aware of and comply with the confidentiality and security obligations set out in this Agreement.

10.2 Personal information: This clause 10 applies to information (including health information) related to identifiable individuals that is stored and accessed by the Products, including Customer Data (Personal Information).

10.3 Customer Data: You will own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

10.4 Uses of Personal Information: Medtech and its Representatives, Related parties and/or third parties engaged by Medtech may need to use or hold Personal Information for the purpose of providing services under this Agreement, support services and monitoring resolution of fault issues, and monitoring load on and usage of the Products. Medtech may embed query tools in the Products and/or Your database, and/or require You and Your Permitted Users to provide Medtech with access to Personal Information, for these purposes. Medtech may also require Personal Information to be removed from Products for the purposes of integrating with third parties. You acknowledge and consent to the removal of Personal Information under these circumstances.

10.5 Customer obligations: You must ensure that You, and any other person who provides Medtech with any Personal Information under or in connection with this Agreement:

(a) protect the Products from any unauthorised access, use and/or damage, including by use of internal procedures and technological security measures;

(b) secure all data used in connection with the Products, including but not limited to ensuring data back-up integrity and updating anti-virus software;

(c) have appropriate permission from the person(s) to whom that Personal Information relates in order for that Personal Information to be lawfully provided to Medtech, its Representatives, its Related parties and its other third party suppliers (including by Medtech, its Representatives and its Related parties); and used and disclosed by Medtech, its Representatives, its Related parties and its other third party suppliers for the purposes of performing its obligations under this Agreement and for any other use or purpose described in this clause 10; and

(d) comply with all applicable laws in relation to personal information and health records, including the Privacy Act 2020 and the Health Information Privacy Code 2020 when providing Personal Information to Medtech.

10.6 No storage by Medtech: Medtech shall not be responsible for any information belonging to You or to any of Your Permitted Users, whether or not used in connection with the Products. You acknowledge that Medtech does not hold or store Personal Information, and that accordingly (subject to clauses 10.4 and 10.8) You are solely liable and responsible under the Privacy Act 2020 and the Health Information Privacy Code 2020 for the correct storage, use and disclosure of Personal Information.

10.7 No liability for loss or damage: Medtech’s liability for any loss or damage to Personal Information which is caused solely by the Products is limited in accordance with clause 15 of these Terms and Conditions. Medtech is not liable for any loss or damage to or unauthorised use or disclosure of Personal Information caused by You, Your Permitted Users, or third parties, including where caused by accidental or unauthorised access to or disclosure of Personal Information, or where caused by Database Software or hardware. Unauthorised access could involve someone known to a Permitted User guessing their password or a stranger/hacker circumventing Medtech’s security measures. Access details should never be given to any unauthorised person.

10.8 Archiving: Medtech shall follow certain archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, You may request that Medtech restore the lost or damaged Customer Data from the latest back-up of such Customer. Medtech shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Medtech to perform services related to Customer Data maintenance and back-up).

11. CONFIDENTIALITY

11.1 Confidentiality: Each party undertakes to the other to keep confidential any information (written or oral) concerning the business and affairs of the other which was obtained during the negotiation of this Agreement and the Term.

11.2 Exclusions: The confidentiality obligations set out in clause 11.1 shall not apply to the extent that:

(a) the consent of the other party has been obtained in relation to the disclosure of any such confidential information;

(b) such confidential information has become public knowledge other than as a result of unauthorised disclosure by either party to this Agreement (or its Related parties or Representatives), or where such information is already in the public domain;

(c) such confidential information is required to be disclosed to the auditors of either party or to any governmental agency or otherwise required by law; and/or

(d) the disclosure of such confidential information is reasonably required by a party to fulfil any conditions or obligations arising under this Agreement.

12. MODIFICATIONS AND COPIES

12.1 Request for modification: At Your request Medtech may (in its sole discretion) modify or vary a Product to improve its functions and/or capabilities.

12.2 Fees apply: Medtech may charge You a separate fee (at a rate agreed between the parties) for any such modifications or variations.

12.3 Derivative Products: You shall not, and shall procure that Your Related parties do not, either directly or indirectly, for Yourself or on behalf of or in conjunction with any other person create a Derivative Product, modify, revise, vary and/or alter the whole or any part of the Products, and/or combine, merge or incorporate the whole or any part of the Products in any other program, software and/or system, without Medtech’s prior written consent. Whether Medtech gives such consent is at its sole discretion and may be conditional upon You paying an additional fee.

12.4 Indemnity: You indemnify Medtech against all loss, cost, expense, claim and/or liability incurred arising (directly or indirectly) out of:

(a) any breach of clause 12.3; or

(b) any of Your modifications, revisions, variations and/or alterations of or to the Products, and/or combination, merger or incorporation of the Products into any other program, software and/or system, infringing the intellectual property rights of any third party (irrespective of whether You obtained Medtech’s prior consent under clause 12.3).

12.5 Copies: Except for the purposes of back-up and security, You must not, and must ensure that the Permitted Users do not, copy or reproduce, in whole or in part, the Products by any means or in any form. A back-up copy of a Product may only be used in lieu of the original copy of the Product. The terms of this Agreement shall apply to all copies of the Products.

12.6 Permitted Users: The total number of copies of the Products on all Your server(s) and/or computer workstation(s) must not exceed the maximum number of Permitted Users. Without limiting the generality of this clause and clause 12.5, You agree and acknowledge that where such total number exceeds such maximum number of the Permitted Users, and/or You breach clause 12.5, You shall be deemed to have illegally copied the Products.

12.7 Restrictions: You will not, and will ensure the Permitted Users do not:

(a) adapt, decompile, disassemble and/or reverse engineer the Products or any part of the Products;

(b) access, store, download, upload, distribute or transmit any Viruses or other material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, and Medtech reserves the right, without liability to You, to disable Your access to any material that breaches the provisions of this clause.

(c) except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create a product derived from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products in any form or media or by any means;

(d) attempt to obtain, or assist third parties in obtaining, access to the Products; or

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or make the Products available to any third party except the Permitted Users.

13. DATABASE SOFTWARE

13.1 Integration: As part of providing access to the Products, Medtech may provide or require access to, or integrate with, the Database Software.

13.2 Licence: Where Database Software is necessary to operate or access a Product, Medtech will:

(a) grant to You by way of sub-licence; or

(b) use reasonable commercial endeavours to assist You in obtaining from the owner of the Database Software,

a licence to use the Database Software solely for Your internal business purposes.

13.3 No rights: You acknowledge that you do not acquire any Intellectual Property in the Database Software other than the right to use such software subject to the terms of Database Software licence.

13.4 Database Software terms: If we grant you a sub-licence pursuant to clause 13.2(a), your usage of such Database Software shall be subject to the terms of use published on our website in relation to such Database Software and Medtech accepts no liability for your compliance or non-compliance with these Database Software terms.

13.5 Disclosure: In the process of providing access to Database Software and complying with its obligations to third parties, Medtech may disclose Your name, address and other material information to that third party.

13.6 System degradation: Medtech will have no liability for any decrease in functionality of Your systems as a result of Product integration with third party systems or Database Software.

14. WARRANTIES AND LIMITATIONS

14.1 Medtech warranties: Subject to clauses 14.3 and 14.4, Medtech warrants that:

(a) the Products (including updates and/or any modifications or variations provided by Medtech) will, during the Term, perform substantially in accordance with Medtech’s specifications; and

(b) it is entitled to grant to You the usage rights granted under this Agreement.

14.2 Medtech indemnity: Subject to clauses 14.3 and 14.4, Medtech shall indemnify You against any claim made against You by any third party alleging that the Products (excluding any embedded or integrated Database Software) infringes the intellectual property rights of that third party. This indemnity is the sole remedy available to You for a breach of clause 14.1(b).

14.3 Exclusion of liability: Medtech shall not be liable to You if Your claim has arisen, directly or indirectly, out of:

(a) the use of the Products in conjunction with any equipment, hardware and/or software not supplied or previously approved by Medtech;

(b) if You fail to maintain the minimum specification for Compatible Hardware and Software advised to You from time to time;

(c) if You use the Products in a manner or for a purpose not reasonably contemplated or authorised by Medtech;

(d) You authorising someone who is not a Permitted User to use the Products;

(e) an unauthorised Third Party Vendor providing service to you;

(f) a Product that You have modified or varied, whether or not in accordance with clause 12.3; and/or

(g) Your breach of this Agreement.

14.4 Third party claims: Medtech shall not be liable to You under clause 14.2 in relation to any claim made against You by any third party alleging that the Products infringe the copyright of the third party, and You shall indemnify Medtech against all loss, cost, expense, claim and/or liability arising out of any such claim by any third party, if any of the following applies:

(a) the third party’s claim has arisen, directly or indirectly, out of Your non-compliance with any aspect of this Agreement;

(b) You do not permit Medtech to modify, alter or substitute the infringing part of the Products (at the cost of Medtech) to render the Products non-infringing;

(c) You do not authorise Medtech to procure for You, from the third party alleging the infringement of copyright, the licence and/or any other right for You to continue to use the Products in the manner contemplated under this Agreement notwithstanding any such alleged infringement;

(d) You do not notify Medtech of the other party’s claim of infringement of copyright within 7 days after becoming aware of the claim;

(e) Medtech’s ability to defend the claim has been prejudiced by Your non-compliance with any of its obligations under this Agreement;

(f) You do not give Medtech reasonable assistance in defending the claim; and/or

(g) do not permit Medtech to have full control of the defence of the claim and all related settlement negotiations.

14.5 All other warranties excluded: Subject to the foregoing, all conditions, warranties, terms and undertakings, expressed or implied, statutory or otherwise in respect of the Products are excluded to the fullest extent permitted by law. Without prejudice to this Medtech does not warrant:

(a) that the use of the Products (in accordance with this Agreement or otherwise) will meet Your data processing, reporting or analytical requirements, or;

(b) that the use or operation of the Products in accordance with this Agreement will be uninterrupted or error free.

15. LIMITATION OF LIABILITY AND INDEMNITY

15.1 Limitation: The maximum aggregate liability of each party under or in connection to this Agreement must not in any year exceed the amount of Fees paid to Medtech in the six months prior to the event giving rise to such liability, in respect of any occurrence or series of occurrences.

15.2 Indirect and consequential loss: Neither party shall be liable to the other party for any indirect, consequential or incidental damages or losses which may be incurred in connection with the Products or Support Services.

15.3 Exclusion: Notwithstanding clause 15.1, nothing in this Agreement shall exclude or limit Your liability in relation to a breach of clause 9.4 or Your indemnity obligations under clause 12.4(b).

15.4 Customer indemnity: You indemnify Medtech, its Representatives and Related parties (each an Indemnified Person) from and against any liability, damage, loss, cost or expense suffered or incurred as a direct result of any act of or omission by You, Your Representatives or Permitted Users in breach of this Agreement or any other negligence or recklessness of You or Your Representatives. You acknowledge that for the purposes of the Contract and Commercial Law Act 2017, the indemnity in this clause has been inserted for the benefit of each Indemnified Person, and is enforceable by each of them.

16. TERMINATION

16.1 Termination by Medtech: Medtech may terminate this Agreement immediately, if:

(a) You fail to pay to Medtech within 21 days after the due date for payment, any Fee or other amount payable under this Agreement; or

(b) You are in breach of any of Your material obligations under this Agreement and such breach has not been remedied within 21 days of the date Medtech notifies You of such breach, requiring that the breach be remedied (or such longer period as Medtech may stipulate); or

(c) Medtech reasonably believes that You or any of Your Representatives have committed a fraudulent act or have been guilty of misrepresentation in their dealings with Medtech; or

(d) an event of Force Majeure which precludes either party from complying with its obligations under this Agreement occurs and continues for more than 21 days; or

(e) You become, threaten or resolve to become, or are in jeopardy of becoming, subject to any form of insolvency administration.

16.2 Termination by You: You may terminate our Agreement immediately if:

(a) Medtech is in material breach of any of its material obligations under this Agreement and such breach has not been remedied within 21 days of the date You notify Medtech of such breach, requiring that the breach be remedied (or such longer period as You may stipulate); or

(b) an event of Force Majeure which precludes Medtech from complying with its obligations under this Agreement occurs and continues for more than 21 days;

(c) You provide us with written notice that You do not consent to an amendment to our Agreement notified pursuant to clause 8.4 or 19, provided this notice is received in advance of the amendment coming into force; or

(d) Medtech becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration.

16.3 Termination on notice: Either party may terminate this Agreement by giving the other party not less than six months notice that it does not wish to renew a Product licence for an available Renewal Period, in accordance with clause 4.2.

16.4 Refund: Upon termination of this Agreement pursuant to clause 16.2, Medtech shall refund such amount of the Fees paid in advance by You to Medtech which relate to the period after the termination of this Agreement.

16.5 Return of Products: You shall, within 14 days of the termination of this Agreement, at Medtech’s sole option:

(a) return to Medtech all the original and copies of the Products and any material and/or documentation in relation to the Products provided by Medtech and/or its Representatives to You (including but without limitation all software or copies of software generated and/or developed from, and/or incorporating part of, the Products), and permanently delete any electronically and/or digitally stored copy of all such software, material and/or documentation from any media in or on which they are stored, and shall certify in writing to Medtech that they have been so deleted; or

(b) destroy and/or permanently delete all such software, material and/or documentation from any media in or on which they are stored, and shall certify in writing to Medtech that they have been so destroyed and/or deleted.

16.6 Rights not affected: Termination of this Agreement shall not affect any accrued rights or liabilities of either party to our Agreement, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

16.7 Survival: Clauses 1, 2, 7.4, 7.5, 8.1, 8.5(b), 9, 10, 11, 12.3, 12.4, 12.5, 12.7, 13.3, 13.6, 14, 15, 16.5, 16.6, 16.7, 16.8, 17, 20, 23, 24, 25, 26 and 27 will survive the expiry or termination of this Agreement.

16.8 Transfer: On termination of this Agreement for any reason, Medtech may in its sole discretion:

(a) provide such assistance as You reasonably request to transfer You to another service provider, provided that You pay Medtech’s reasonable expenses for such assistance; and/or

(b) destroy or otherwise dispose of any of the Customer Data in its possession unless You send Medtech a written request for:

(i) delivery of the then most recent back-up of the Customer Data, no later than ten days after the effective date of the termination of this Agreement. Medtech shall use reasonable commercial endeavours to deliver the back-up to You within 30 days of receiving such request, You shall pay all reasonable expenses incurred by Medtech in returning or disposing of Customer Data; or

(ii) read-only access to the Products for a 12-month period following termination, in which case Medtech will provide you with read-only access at the then current rate for read-only access published by Medtech at that time;

provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).

17. DISPUTE RESOLUTION

17.1 Process: If either party has any dispute with the other in connection with this Agreement, then:

(a) the parties will use best endeavours to settle the dispute by agreement between them and act in good faith and co-operate with each other to resolve the dispute; and

(b) if the dispute is not settled by agreement between the parties within 30 days, then, unless both parties agree otherwise:

(i) full written particulars of the dispute must be promptly given to the other; and

(ii) mediation will be conducted by a single mediator agreed between the parties, or, if the parties can not agree on a mediator, a mediator will be nominated by the President for the time being of the New Zealand Law Society. In the event of any such submission to mediation:

A. the mediator will not act as an expert or arbitrator;

B. the mediator will determine the procedure and timetable for the mediation; and

C. the cost of the mediation, including any cost associated with a referral to the New Zealand Law Society for the appointment of a mediator, will be shared equally between the parties, unless otherwise agreed; and

(iii) if, at the conclusion of the mediation procedures as set out in clause 17.1(b), the parties have not resolved the dispute, either party may commence proceedings in respect of the dispute.

17.2 No litigation: Neither party will initiate any litigation during the dispute resolution process outlined in clause 17.1 above, unless urgent proceedings are necessary to preserve a party’s rights.

17.3 Obligations remain: Both parties will continue to comply with all their respective obligations in the Agreement until the dispute is resolved, but payments may be withheld to the extent that they are disputed.

18. FORCE MAJEURE

18.1 Obligations suspended: If either party is wholly or partially precluded from complying with its obligations under this Agreement by an event of Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the event of Force Majeure.

18.2 Notification: As soon as practicable after an event of Force Majeure arises, the affected party must notify the other of the extent to which it is unable to perform its obligations under this Agreement.

18.3 Obligations to recommence: The affected party must recommence the performance of its obligations under this Agreement immediately after the cessation of the event of Force Majeure and must immediately notify the other party of this.

19. AMENDMENTS

19.1 Amendment by Medtech: Medtech may amend any terms of this Agreement at any time, in its sole discretion.

19.2 Notification: An amendment will be notified to You either:

(a) at the time You permit or purchase Product updates; or

(b) by email notification at any time.

19.3 Application: Subject to clause 19.4, an amendment will apply and come into effect on the earlier of:

(a) 30 days after it is notified to You; and

(b) when you click ‘I Accept’ or the equivalent indication of acceptance on any notification.

19.4 Consent: If You do not consent to an amendment notified by Medtech, You must inform Medtech of this in writing no later than 30 days after You receive notification of the amendment. You are deemed to have consented to any amendment requested by Medtech by:

(a) clicking ‘I Accept’ or the equivalent indication of acceptance on any notification; or

(b) continuing to use the Product 30 days after an amendment has been notified to You, without notifying Medtech of an objection to the amendment.

19.5 Termination right: You have the right to terminate this Agreement in accordance with clause 16.2(c) if:

(a) Medtech notifies You of a material amendment to this Agreement; and

(b) You notify Medtech within 30 days (in accordance with clause 19.4) that You do not consent to the amendment.

19.6 Amendment by You: You may request an amendment to this Agreement (including to add new Permitted Users and/or new Products) on written request to Medtech. Medtech has the right to accept or refuse such request in its sole discretion and to amend the Fees payable in relation to such amendment accordingly.

20. RELATIONSHIP

20.1 No partnership or agency: Nothing in this Agreement shall create a partnership between the parties, or create a party as an agent of the other party, unless this Agreement expressly provides.

20.2 Liability for Permitted Users: Where any of Your Permitted Users and/or Related parties does anything which, if done by You, would constitute a breach of Your obligations under this Agreement, You will be deemed to be in breach of this Agreement.

20.3 Medtech’s obligations: All of Medtech’s obligations under this Agreement are owed to You by Medtech (and any of its assignees), and not by any other party.

21. ASSIGNMENT

21.1 Assignment by You: You may not assign, transfer or sublicense, or attempt to assign, transfer or sublicense, any of Your rights and/or obligations under this Agreement, without the prior written consent of Medtech. Medtech will not unreasonably withhold such consent but may charge You a reasonable processing fee for the grant of such consent.

21.2 Assignment by Medtech: Medtech may transfer or assign any of its rights and/or obligations under this Agreement to any third party, without any notice to You.

22. THIRD PARTY VENDORS AND ACCESS TO PRODUCTS AND CUSTOMER DATA

22.1 Third Party Vendor agreements: Where You enter into agreement with Third Party Vendors from time to time permitting them to access and/or use Customer Data:

(a) You will submit to Medtech a copy of the contract for approval, such approval not to be unreasonably withheld;

(b) You acknowledge those Third Party Vendors will need to access that Customer Data and/or Products;

(c) You authorise Medtech to provide that access and to separately contract with and charge those Third Party Vendors for the use of Medtech Products and any application programming interface that we provide in order to enable them to do so;

(d) You represent and undertake that you have obtained all necessary customer approvals in order to allow access to that Customer Data; and

(e) You indemnify Medtech for any failure to obtain that consent.

23. NOTICE

23.1 Form: A notice required or authorised to be given or served on a party under this Agreement must be in writing and may be given or served by email, post or hand to that party at its email address or physical address.

23.2 Deemed receipt: A notice will be deemed to be received by the addressee:

(a) if sent by email, at the time and date at which the sender’s email system records that the email was successfully delivered to the recipient, provided that:

(i) if such transmission is made or completed at a time outside Normal Business Hours, it will be deemed to have been received at the opening of business on the next Business Day; and

(ii) an error or non-delivery email is not received by the sender (or by the sender’s email server) in respect of that sent email;

(b) in the case of personal delivery, when delivered; or

(c) in the case of a postal delivery, on the third Business Day after posting.

24. WAIVER

24.1 No waiver: No delay or compromise by a party in respect of any breach of the other party’s obligations under this Agreement operates as a waiver or prevents that party from subsequently enforcing that obligation.

25. ENTIRE AGREEMENT

25.1 These Terms and Conditions and the Proposal or agreement together with any variations of these agreed in accordance with clause 19, constitutes the entire understanding and agreement of the parties relating to the transactions contemplated by these documents, including any previous licence for the Products or Support Services.

26. SEVERABILITY

26.1 Unlawful provisions: Any unlawful or voidable provision in this Agreement shall be read down as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without effecting the validity, legality or enforceability of the remaining provisions, provided the reading down or severing does not materially affect the purpose of or frustrate this Agreement.

27. GOVERNING LAW

27.1 Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of New Zealand.

Last updated [September 2021]