The Clinician Ltd (New Zealand)
Terms and Conditions of Service
The Clinician Ltd provides patients and health service providers with The Clinician Ltd Service to manage appointments, personal health records, communications, surveys and other related activities. Other than information gathered through our website at www.The Clinician.com, The Clinician Ltd acts as a service provider for health service providers and does not own or control the information that is submitted to us through The Clinician Ltd Service.
This Terms of Service does not reflect the practices of The Clinician Ltd ’s health service provider clients and The Clinician Ltd is not responsible for our clients’ policies or practices. The Clinician Ltd does not review, comment upon, or monitor our health service provider clients’ policies or their compliance with their respective policies, nor does The Clinician Ltd review our client’s instructions to determine whether they are in compliance or conflict with the terms of a client’s published policy or applicable law.
(A) The Clinician Ltd owns all rights in the Product.
(B) The Client wishes to obtain a license from The Clinician Ltd for Authorized Users to use the Product and to obtain web-based access to the Product through a web service managed by The Clinician Ltd.
(C) The Clinician Ltd has agreed to provide the Client with the following in accordance with the terms and conditions of this Agreement:
- a non-transferrable, non-exclusive license to use the Product
- web-based access to the Product; and
- various other services incidental to the above including Backup of Client Data, during the License Period and any Renewal Period.
1.1. This Agreement is made between The Clinician Ltd with a principal place of business at 65 Chulia Street, #38-02/03 OCBC Centre, 04951, New Zealand and the Client on the date on which the Client’s The Clinician Ltd account is created.
1.2. The terms contained in the Client’s The Clinician Ltd Account and in these Terms of Service form the Agreement between The Clinician Ltd and the Client.
2. DEFINITIONS AND INTERPRETATION
In this Agreement, including the Recitals, the following terms will have the following meanings unless the contrary intention appears:
‘Agreement’ means this agreement compromising the Client The Clinician Ltd Account details and The Clinician Ltd License and Subscription Agreement Terms of Service.
‘The Clinician Ltd Account’ means The Clinician Ltd online account for the Client containing the Client’s business details.
‘The Clinician Ltd Service’ means the service provided by The Clinician Ltd pursuant to which access is provided to the Product via a Server managed by The Clinician Ltd.
‘Authorized Users’ means the employees or contractors of the Client as nominated by the Client in their The Clinician Ltd Account.
‘Business Hours’ means the hours of 8:00AM to 5:00PM Monday to Friday local time in New Zealand excluding public holidays.
‘Client’ means the party named as such in The Clinician Ltd account.
‘Client Data’ means Client’s information or other data processed, stored, transmitted by, in or through the Services, including without limitation personal information relating to the Client’s personnel, patients and/or customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
‘Commencement Date’ means the date the Client creates its The Clinician Ltd Account online.
‘Documentation’ means the documentation provided online as part of the Service.
‘Fees’ means the fees specified in the Client’s The Clinician Ltd Account.
‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement.
‘License Period’ means one calendar month from the Commencement Date and each month thereafter until termination pursuant to these Terms and Conditions.
‘Location’ means from any computer or mobile device.
‘Maintenance Services’ means the services described in Clause 10.1.
‘Party’ or‘Parties’ means a party or the parties to this Agreement.
‘Product’ means The Clinician Ltd online platform and related tools.
‘Product Updates’ means the updates described in Clause 9.1 of this Agreement.
‘Renewal Period’ means each monthly renewal.
‘Server’ means the server or servers located at The Clinician Ltd’s chosen cloud server premises or such other location as is nominated by The Clinician Ltd from time to time and includes the serving computers, hardware and operating systems necessary to operate and support The Clinician Ltd Service.
‘Technical Support’ means the support described in Clause 11.1 of this Agreement.
‘Health-related information’ means all individually identifiable health information, including demographic information and information related to an individual’s physical or mental health, the provision of health care to the individual, or the individual’s payment for the provision of health care.
In this Agreement unless the contrary intention appears:
- clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
- words importing the singular will include the plural and vice versa;
- words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
- reference to a party to this Agreement includes reference to that party’s successors and assigns; and
- references to currency are references to New Zealand dollars (NZD$).
3. LICENSE & ACCESS SERVICES
3.1. In consideration of the payment of the Fees and any agreed Additional Fees,The Clinician Ltd will provide the Client with:
- a non-exclusive license to use the Product and the Documentation;
- web-based login access to The Clinician Ltd Service;
- the uploading of all Product Updates from time to time;
- the Maintenance Services including Backup Services; and
- the Technical Support,
4. GRANT OF LICENSE
4.1. Subject to the payment of the Fees, The Clinician Ltd grants to the Client a non-transferable, nonexclusive license for the Authorized Users to use the Product and the Documentation during the License Period and any Renewal Period in accordance with the terms and conditions of this Agreement.
4.2. The Client will:
- only allow the Product and the Documentation to be used by the Authorized Users for the purpose of the Client’s business and for no other purpose;
- ensure that the Product and the Documentation are protected at all times form misuse, destruction or any forms of unauthorized use;
- not allow the Product or the Documentation to be used or accessed by any third party;
- not sell, sub-license, assign or in any other way transfer the Product or the Documentation to any third party nor provide any of the reports, labels or other output of the Product to any third party,
4.3. Where documentation is provided to the Client, the Client may make such additional copies of the Documentation as the Client reasonably requires for use by the Authorized Users at the Location, provided that such copies will be owned by The Clinician Ltd and bear notices of The Clinician Ltd ’s ownership of copyright.
4.4. The Client will:
- follow all reasonable instructions given by The Clinician Ltd from time to time with regard to the use of the Product and the Documentation by the Authorized Users; and
- permit The Clinician Ltd , or its agent, at all reasonable times and at The Clinician Ltd ’ expense, to verify that the use of the Product and the Documentation by the Client and the Authorized Users is in accordance with the terms of this Agreement.
5. The Clinician Ltd SERVICE
5.1. In consideration of the payment of the Fees, The Clinician Ltd will provide The Clinician Ltd Service to the Client during the License Period and any Renewal Period in accordance with the terms of this Agreement.
5.2. The Clinician Ltd will provide the Client with the following information and assistance on the Commencement Date or at such other time as agreed between the parties in writing:
- all technical specifications required for access to The Clinician Ltd Service and use of the Product by the Authorized during the License Period and any Renewal Period including supported platforms, connectivity and security;
- all technical advice and assistance as is reasonably required by the Client to enable the Client to establish its connection to The Clinician Ltd Service; and
- all usernames and passwords required by the Client to enable access to The Clinician Ltd Service by the Authorized Users.
5.3. The Clinician Ltd reserves the right to make such amendments or modifications to The Clinician Ltd Service as required by law or which The Clinician Ltd , in its sole discretion, decides are in the interest of quality, efficiency and security of The Clinician Ltd Service as a whole.
6. USE OF The Clinician Ltd SERVICE
6.1. The Client is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services require by the Client to access and use The Clinician Ltd Service and will ensure that all such equipment and services comply with the technical specifications provided by The Clinician Ltd.
6.2. The Clinician Ltd reserves the right to give such instructions or directions to the Client concerned access to, and use of, The Clinician Ltd Service by the Authorized Users as required by law or which The Clinician Ltd, in its sole discretion, decides are in the interest of the quality, efficiency and security of The Clinician Ltd Service as a whole.
6.3. The Client must:
- comply with all reasonable directions regarding access to, and use of, The Clinician Ltd Service provided to the Client from time to time by The Clinician Ltd including any procedures imposed by The Clinician Ltd to prevent unauthorized access to The Clinician Ltd Service; and
- permit The Clinician Ltd , or its agent, at all reasonable times, at The Clinician Ltd ’s expense, to verify that the Client’s use of The Clinician Ltd Service is within the terms of this Agreement.
6.4. The Client must take all reasonable precautions to ensure the security of access to The Clinician Ltd Service at the Location and must not, under any circumstances, allow any third party or any person other than as Authorized User to access or use the Product or The Clinician Ltd Service for any purpose without the prior written consent of The Clinician Ltd.
6.5. The Client represents and warrants that it has obtained the proper consents, authorizations, and releases from individuals to the fullest extent required by applicable law before posting their Health-Related Information to The Clinician Ltd Service or initiating any payment transactions.
6.6. The Clinician Ltd is responsible to provide facilities for the secure export of all Client account data, including all Health-Related Information at any time during the term of this Agreement. The Client is solely responsible for any Health-Related Information exported from The Clinician Ltd Service. The Client represents and warrants that it will port and subsequently use protected health information only as permitted by applicable state or provincial laws.
6.7. The Client may be able to transfer information from third-party data sources into The Clinician Ltd Service. The Client represents and warrants that it has all necessary patient authorization for such data transfers and such data transfers will comply with applicable state or provincial laws.
6.8. The Client agrees to inform The Clinician Ltd immediately if it becomes aware of any unauthorized use of the Product or The Clinician Ltd Service by any person.
7. AVAILABILITY OF The Clinician Ltd SERVICE & AUTOMATED BACKUP
7.1. The Clinician Ltd will use its best endeavours to:
- maintain the reliability and efficiency of The Clinician Ltd Service subject to:
- scheduled downtime for Maintenance Services or other interruptions to service specified in 8.1; and
- un-scheduled interruptions to the availability of The Clinician Ltd Service due to factors beyond the control of the Client or third parties, including telecommunications providers.
7.2. The Client will communicate any difficulties encountered with The Clinician Ltd Service to The Clinician Ltd as soon as is reasonably practical following detection.
7.3. The Client acknowledges that the speed of response from The Clinician Ltd Service is dependent on the Client’s internal connection and performance of The Clinician Ltd Service may be affected by such external factors as speed of connection and infrastructure bandwidth from the Client’s equipment to the Server and the number of users on the connection.
7.4. The Clinician Ltd takes no responsibility for any delay, malfunction, non-performance, or other degradation of The Clinician Ltd Service caused by or resulting from any alteration, modifications or amendments to The Clinician Ltd Service requested by the Client.
7.5. In the event of total systems failure resulting in the disruption of service to the Internet from the Server, The Clinician Ltd will endeavour to repair and reinstate The Clinician Ltd Service within twenty four (24) hours of detection depending on the severity of the failure.
7.6. At no additional charge to Client, The Clinician Ltd shall make daily incremental Backups (the “Incremental Backup”) and weekly full backups (the “Full Backups”) of Client Data archived with The Clinician Ltd Service. The prior day incremental backup and a copy of the weekly backup shall be stored off-site in a secure facility designed to store and maintain backups for emergency use. Requests for Backup data need to be made to The Clinician Ltd fourteen (14) days before the termination of this agreement at no additional cost to Client. Client Backup Data will be made available in a standard database file.
8. SUSPENSION OF ACCESS
8.1. The Clinician Ltd may suspend access to The Clinician Ltd Service:
- to carry out the Maintenance Services;
- to carry out modifications or updates to The Clinician Ltd Service, including the uploading of Product Updates;
- to preserve data and integrity;
- in the event of a security breach; or
- if the Server malfunctions.
8.2. The Clinician Ltd also reserves the right to terminate or suspend access to The Clinician Ltd Service to the Client indefinitely and without refund or compensation in the event that the Client uses The Clinician Ltd Service, or appears to The Clinician Ltd to be intending to use The Clinician Ltd Service, in a manner reasonably deemed inappropriate by The Clinician Ltd or which breaches the terms of this Agreement.
8.3. Suspension of access to The Clinician Ltd Service will continue until the Maintenance Services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
8.4. The Clinician Ltd will not be liable to the Client, its officers, employees, contractors or agents or any third party whatsoever as a result of taking action referred to in this Clause where such action is taken on a view which is formed on a reasonable basis by The Clinician Ltd.
9. PRODUCT UPDATES
9.1. The Clinician Ltd may, in its sole discretion, make enhancements, updates or new releases of the Product available through The Clinician Ltd Service from time to time in order to enhance or improve the functionality or operation of the Product or comply with legislative requirements (‘Product Updates’).
9.2. The Clinician Ltd will upload any Product Updates onto the Server for access and use by the Client through The Clinician Ltd Service as soon as reasonably practicable following the creation and general release of such Product Updates by The Clinician Ltd.
9.3. The Client acknowledges that additional downtime for The Clinician Ltd Service over and above the levels specified in Clauses 7 and 8 of this Agreement may apply in the event that The Clinician Ltd is required to upload Product Updates.
9.4. The Product Updates will be provided to the Client through The Clinician Ltd Service free of charge subject to all Fees having been fully paid by the Client for the License Period or current Renewal Period as the case may be.
9.5. Use of the Product Updates by the Client through The Clinician Ltd Service will be subject to the same terms and conditions as use of the Product under this Agreement.
10. MAINTENANCE SERVICES
10.1. The Clinician Ltd will perform such routine maintenance services as it considers necessary to ensure the proper functioning of The Clinician Ltd Service during the License Period and any Renewal Period including:
- the operation and general maintenance of the Server;
- reviewing the Product and The Clinician Ltd Service on a regular basis and applying Product Updates where appropriate; and
- performing regular security and maintenance checks for evidence of security breaches, software malfunction and resource limit warnings.
10.2. The Client acknowledges that it is solely responsible for the support and maintenance of any computer hardware and non-The Clinician Ltd software operated by the Client.
11.1. The Clinician Ltd will provide the Authorized Users with basic technical support in relation to the Product and The Clinician Ltd Service during the License Period and any Renewal Period (‘Technical Support’).
11.2. The Technical Support is available to the Authorized Users by:
- telephoning The Clinician Ltd on 0-800-102-647 during Business Hours; or
- logging enquiries through The Clinician Ltd website located www.theclinician.com or e-mailing firstname.lastname@example.org upon receipt of which, The Clinician Ltd will use its best endeavours to provide a response to the Client within two (2) Business Days.
11.3. When reporting faults to The Clinician Ltd, the Authorized Users must provide an accurate description of the problems encountered including error messages and an accurate impact of the problem in order to facilitate the necessary corrective action by The Clinician Ltd.
13. PAYMENT OF FEES
12.1. The Client may, from time to time, request in writing that The Clinician Ltd provide the Client with other services in relation to the Product or The Clinician Ltd Service which may be offered by The Clinician Ltd including, without limitation, auditing, data entry, training in the use of the Product or general IT services in relation to the Product or The Clinician Ltd Service (
12.2. Any provision of Additional Services by The Clinician Ltd to the Client will be at The Clinician Ltd ’s sole discretion and subject to a separate written agreement being entered into between the parties in relation to the provision of the Additional Services and the fees payable by the Client to The Clinician Ltd.
12. ADDITIONAL SERVICES
13.1. The Client will pay the Fees and any other fees due and payable to The Clinician Ltd under this Agreement in the manner specified or as otherwise invoiced to the Client by The Clinician Ltd from time to time.
13.2. The Client acknowledges and agrees that:
- the Fees are payable in respect of the use of the Product and The Clinician Ltd Service by the Client;
- the Fees apply only in respect of the License Period; and
- in the event that the License Period is renewed in accordance with Clause 19.1, The Clinician Ltd reserves the right to increase the Fees for any Renewal Period and will invoice the Client for payment of the new Fees prior to the commencement of each Renewal Period or as otherwise agreed between the parties in writing.
13.3. Where applicable, GST and any other taxes, duties or levies will be paid by the Client at the then prevailing rate.
13.4. Where payment of any part or the whole of the Fees is to be made before the Client may access The Clinician Ltd Service, The Clinician Ltd may withhold access to the Client until such payments have been made in full.
13.5. If any sum payable under this Agreement is in arrears for more than thirty (30) days, The Clinician Ltd reserves the right to charge interest on such overdue sum on a daily basis from the original due date until paid in full.
14. CONFIDENTIAL INFORMATION
14.1. A party shall treat all Confidential Information disclosed by the other party as confidential and shall not, without the prior written consent of the disclosing party:
- disclose or permit the same to be disclosed to any third party (except to the extent required by law, a stock exchange or in connection with legal proceedings relating to this Agreement, but only after first notifying the other party to give it an opportunity to protect the Confidential Information) and agree to take all reasonable steps to maintain the confidentiality of the Confidential Information; or
- use the Confidential Information for any purpose other than that for which it is given.
14.2. It shall be the responsibility of each party to ensure that:
- Confidential Information is only disclosed to those of its officers, employees or contractors in their capacities as such on a strictly need to know basis and have such officers, employees and contractors comply with the obligations of confidentiality imposed upon them by this Clause 14 as if personally bound by such obligations as though parties to this Agreement;
- and the officers, employees or contractors referred to in Clause 14.2(a) execute such documentation as required by the owner of the Confidential Information acknowledging their obligations of confidentiality, which shall provide that the obligations of confidentiality survive notwithstanding that any of the above mentioned officers, employees or contractors cease to be employed or engaged by the respective parties.
14.3. The confidentiality obligations under this Clause 14 shall survive the expiry or termination of this Agreement.
15. INTELLECTUAL PROPERTY RIGHTS
15.1. Intellectual Property Rights means:
- patents, copyright, circuit layout rights, designs, trademarks and confidential know-how; and
- any application or right to apply for any of the rights referred to in paragraph 15.1(a).
15.2. The Clinician Ltd owns and retains, and the Client acknowledges that The Clinician Ltd owns and retains all Intellectual Property Rights in:
- the Product, The Clinician Ltd Service and the Product Updates and any copies thereof including, without limitation, any modifications or improvements to, or customisation of, the Product or The Clinician Ltd Service carried out by The Clinician Ltd , the Client or any third party pursuant to this Agreement excluding any third party materials used in the Product; and
- the Documentation and any copies thereof.
15.3. Except as agreed to in writing by The Clinician Ltd , the Client must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Product or The Clinician Ltd Service in any way for itself or for others or permit such act to be done.
15.4. The Client warrants that it will:
- follow all reasonable instructions given by The Clinician Ltd from time to time regarding The Clinician Ltd ’s Intellectual Property Rights; and
- not do anything to diminish the value of, or contest in any way, The Clinician Ltd ’s Intellectual Property Rights.
15.5. The Client agrees that it will inform The Clinician Ltd immediately if the Client becomes aware that any Intellectual Property Rights of The Clinician Ltd are being infringed, or may be infringed, by any third party.
15.6. The Clinician Ltd need not initiate action against infringers and may settle any dispute by means it determines to be effective and in the best interests of The Clinician Ltd, but where The Clinician Ltd, in its sole discretion, determines to initiate action against an infringer, the Client will cooperate with The Clinician Ltd to the greatest extent possible at The Clinician Ltd ’s expense.
15.7. The Clinician Ltd Service contains content from users and other The Clinician Ltd licensors. Except if explicit permission is given to Client, it may not copy, modify, translate, publish, broadcast transmit, distribute, perform, display or sell any content appearing on or through The Clinician Ltd Service.
15.8. The Clinician Ltd Service may provide Client with the ability to create, post, or share content (‘Client’s User Content’). The Clinician Ltd claims no ownership over Client’s User Content. Client or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content Client generates within the usage of The Clinician Ltd Service.
15.9. The Client represents and warrants that:
- It must have rights to the content the Client generates within The Clinician Ltd Service or otherwise have the right to grant the license set forth in these Terms
- the posting and use of Client’s User Content on or through The Clinician Ltd Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and
- the posting of Client’s User Content on The Clinician Ltd Service does not result in a breach of contract between Client and a third party. Client agrees to pay for all royalties, fees and any other monies owing any person by reason of content Client generates on or through The Clinician Ltd Service.
15.10. The Clinician Ltd makes no intellectual property rights over the material Client provides to the Service, including all Health-Related Information whether in identifiable or de-identified formats.
16. PRODUCT OPERATION
16.1. While all due care has been taken, The Clinician Ltd does not warrant that the operation of the Product will be uninterrupted or error free or that any third party components of the Product, will be accurate or error free or that the Product will be compatible with any application, program or software not specifically identified as compatible by The Clinician Ltd.
16.2. The Clinician Ltd ’s obligation and the Client’s exclusive remedy during the License Period and any Renewal Period are limited, in The Clinician Ltd ’s absolute discretion, to:
- The Clinician Ltd , at its own expense, using all reasonable endeavours to rectify any non-conformance of the Product by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time; or
- a refund of the Fees paid for the latest license period, if, in The Clinician Ltd ’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.
16.3. The Client acknowledges and accepts that it is the Client’s sole responsibility to ensure that:
- the facilities and functions of the Product and The Clinician Ltd Service meet the Client’s requirements; and
- the Product accessed via The Clinician Ltd Service is an appropriate means to assist the Client with its legislative compliance in the Client’s jurisdiction,
- and The Clinician Ltd does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
16.4. The Clinician Ltd will not be liable for any failure of the Product accessed via The Clinician Ltd Service to provide any function not described in the Documentation or any failure attributable to:
- any modification to the Product or the Equipment other than by The Clinician Ltd;
- accident, abuse or misapplication of the Product or The Clinician Ltd Service by the Client;
- use of the Product or The Clinician Ltd Service with other software or equipment without The Clinician Ltd ’s written consent;
- use of other than the latest, unaltered current release of the Product as provided by The Clinician Ltd through The Clinician Ltd Service; or
- use other than in accordance with this Agreement.
16.5. If, upon investigation, a problem with the Product or the Client’s access to The Clinician Ltd Service is determined not to be The Clinician Ltd ’s responsibility, The Clinician Ltd may invoice the Client immediately for all reasonable costs and expenses incurred by The Clinician Ltd in the course of or in consequence of such investigation.
17. IMPLIED TERMS
17.1. Subject to Clause 17.2, any condition or warranty which would otherwise be implied in this Agreement by law is hereby excluded.
17.2. Where legislation implies into this Agreement any condition or warranty which cannot be excluded at law, The Clinician Ltd ’s liability for any breach of such condition or warranty will be limited, at The Clinician Ltd ’s sole discretion to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing such goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired, and
- if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
18. LIMITATION OF LIABILITY
18.1. The Client acknowledges and agrees that:
- the Product and The Clinician Ltd Service do not of themselves constitute, and are no substitute for, the Client’s own identification of, and compliance with, applicable laws and regulations in the Client’s jurisdiction;
- The Clinician Ltd cannot and does not provide any warranty regarding the ability of the Product or The Clinician Ltd Service to ensure the Client’s compliance with all applicable laws and regulations in the Client’s jurisdiction; and
- the Client is entirely responsible for:
- its access to, and use of, the Product and The Clinician Ltd Service in accordance with the terms of this Agreement;
- its use of the Product accessed through The Clinician Ltd Service including:
- input of parameters, data or information into the Product;
- interpretation or use of, or reliance on, any data, information, reports, labels or any other output of the Product,
- its identification of, and compliance with, all applicable laws and regulations in the Client’s jurisdiction; and
- complying with state/provincial and federal laws related to retention of medical data and records, patient access and amendment to information, and patient authorization to release data.
- the consequences of any use of the Product and The Clinician Ltd Service by the Client.
18.2. Except in relation to liability which is not excludable at law, The Clinician Ltd is under no liability to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Client’s access to, or use of, the Product and The Clinician Ltd Service or any other goods or services supplied pursuant to this Agreement including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill, or in respect of a failure or omission on the part of The Clinician Ltd to comply with its obligations under this Agreement.
18.3. Without limiting the generality of any other provision of this Agreement, The Clinician Ltd will not be liable to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by the Client or any third party or which may arise directly or indirectly in respect of:
- access to, or use of, the Product and The Clinician Ltd Service by the Client;
- any defect, malfunction, error, loss, delay or breakdown in the transmission, reception, use or storage of information or records obtained by the Client from the Product and The Clinician Ltd Service;
- any suspension of access to the Product or The Clinician Ltd Service by The Clinician Ltd pursuant to this Agreement;
- delays in transmission, communications failures or internet access difficulties caused by third party service providers beyond The Clinician Ltd ’s control;
- introduction of viruses affecting the functioning of The Clinician Ltd Service;
- malfunction of third party equipment or software; or
- any other act or omission by any third party which affects the ability of the Client to access, or use, the Product or The Clinician Ltd Service.
18.4. Subject to Clause 18.5, the Client warrants that it has not relied on any representation made by The Clinician Ltd which has not been expressly stated in this Agreement, or upon any descriptions or specifications contained in any document including catalogues or publicity material produced by The Clinician Ltd.
18.5. The Client acknowledges that to the extent that The Clinician Ltd has made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
18.6. The Client will at all times indemnify and hold harmless The Clinician Ltd and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:
- a breach by the Client of its obligations under this Agreement; or
- any wilful, unlawful or negligent act or omission of the Client.
18.7. To the fullest extent possible by law, The Clinician Ltd ’s maximum liability arising out of or in connection with The Clinician Ltd Service or Client’s use of The Clinician Ltd content, regardless of the cause of action (whether in contract, tort, breach of warranty or otherwise), will not exceed $100.
19. LICENSE PERIOD
19.1. This Agreement will commence on the Commencement Date and roll over on a monthly basis until termination in accordance with this Agreement.
20.1. Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
- the other party breaches any of its obligations under this Agreement capable of remedy and fails to remedy that breach within fourteen (14) days after receiving notice requiring it to do so; or
- the other party breaches any of its obligations under this Agreement incapable of remedy; or
- any event referred to in Clause 20.2 occurs in relation to the other party.
20.2. Each party will notify the other immediately if:
- it ceases to carry on business;
- it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
- any step is taken to enter into any arrangement between that party and its creditors;
- any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator of the whole or any part of its assets or business.
20.3. If for a continuous period of 90 days there are no active Authorized Users of the Client under the Product then The Clinician Ltd may elect to terminate this Agreement.
20.4. If the Client fails to pay its monthly Fees for two (2) months or more then The Clinician Ltd may terminate this Agreement forthwith.
21. ACTION OF TERMINATION
21.1. Upon the expiry or termination of this Agreement:
- the non-exclusive License granted to the Client to use the Product and the Documentation will immediately terminate;
- The Clinician Ltd will immediately terminate the Client’s connection to The Clinician Ltd Service and cease providing all services to the Client under this Agreement including without limitation the Product Updates, the Maintenance Services, the Technical Support; and
- the Client will immediately:
- cease to access and use the Product and The Clinician Ltd Service;
- return the Documentation and any copies of the Documentation to The Clinician Ltd or otherwise deal with same in the manner specified by The Clinician Ltd in writing;
- cease to use all Intellectual Property Rights of The Clinician Ltd ; and
- pay all sums owing to The Clinician Ltd pursuant to this Agreement, including, without limitation, the total Fees owing for the current License Period or Renewal Period as the case may be and all Addition Fees.
- The Clinician Ltd may, at any time after 90 days from termination, delete the Client’s data from the Service.
21.2. Termination of this Agreement for any reason will not affect the accrued rights or remedies of either party.
22. FORCE MAJEURE
22.1. Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by declaration of war, strikes, acts of God or the public enemy, riots, interference by military authorities, compliance with Government laws and regulations, delays in transit, inability to secure necessary governmental priorities or any fault beyond its reasonable control or without its fault or negligence.
23. DISPUTE RESOLUTION
23.1. In the event of a serious dispute arising between the parties out of or in connection with this Agreement (‘Dispute’), either party may issue a ‘Dispute Notice’ to the other party and, if it does so then the parties must use their best endeavours to try to settle such dispute amicably by negotiation within 14 days of the issuance of the Dispute Notice or within any agreed extended period (‘Negotiation Period’).
23.2. If the Dispute cannot be settled within the Negotiation Period, then either party may notify the other within 7 days after the end of the Negotiation Period that it requires that the parties attempt to settle the Dispute by mediation and the parties must proceed to such mediation as soon as reasonably possible.
23.3. If the Dispute is not resolved through the procedures set out above the parties will thereafter be free to agree to arbitration within 7 days following mediation or, if they do not so agree, then either party may proceed to litigate the matter.
24.1. The Client may not sub-License, transfer or assign any of its rights or obligations under this Agreement without the prior written consent of The Clinician Ltd.
25.1. The Clinician Ltd may sub-contract the performance of any or all of its obligations under this Agreement.
26.1. Severance: If any part of this Agreement is deemed unenforceable, then if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed or in any other case the provision is severed and the rest of this Agreement will continue to be legal and enforceable.
26.2. Waiver: The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
- to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
- at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
- Each party notifying or giving notice under this Agreement will do so:
- in writing;
- addressed to the address of the recipient specified in the Client’s The Clinician Ltd Account, as altered by notice given in accordance with this clause; and
- hand delivered or sent by prepaid post to that address or sent by email to the other party’s email address as specified in the Client’s The Clinician Ltd Account.
- A notice given in accordance with Clause 26.3(a) is deemed received:
- if hand delivered, on the date of delivery;
- if sent by prepaid post, three (3) days after the date of posting if posted within New Zealand and ten (10) days after the date of posting if posted internationally;
- if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).
26.4. Variation: Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by both The Clinician Ltd and the Client.
27. ENTIRE AGREEMENT
27.1. This Agreement is the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes any prior agreement, oral or written and any other communications between the parties in relation to the subject matter of this Agreement.
28. GOVERNING LAW
28.1. This Agreement shall be governed by the laws of New Zealand and each party agrees to submit to the non-exclusive jurisdiction of the courts of New Zealand.