MedApps provides the Application, which is an online application that provides team based clinical workflow management for hospitals (as well as other products and services).
This licence agreement sets out the terms and conditions on which MedApps will grant a licence to use the Application to a User who downloads or is otherwise provided with a copy of the Application.
By clicking the ‘I accept’ button or otherwise confirming the User’s acceptance of this licence agreement electronically the User agrees that it has read, understood and will be bound by this licence agreement.
The User is required to agree to and comply with the terms of this licence agreement in order to access and use the Application.
1. Definitions and interpretation
In this licence agreement, unless the context otherwise requires:
(a) Apple means Apple Inc, a California corporation with its principal place of business at One Infinite Loop, Cupertino, California 95014, U.S.A.
(b) Application means the online application downloaded by, or otherwise provided to, the User and licenced to the User pursuant to this licence agreement.
(c) Commencement Date means the date the User clicks the ‘I accept’ button or otherwise confirms the User’s acceptance of this licence agreement electronically.
(d) Consequential Loss means Loss beyond the normal measure of damages and includes indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
(e) Customer means the organisation or business which employs, contracts or otherwise engages the User to provide services at its premises.
(f) Documentation means any manuals, guides, reference materials or other similar documents in any form made available by MedApps to the User in connection with the Application.
(g) Improvement means any modification, alteration, development, new use or other change to the Application which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way preferable.
(h) Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
(i) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
(j) Permitted Purpose means accessing and using the Application for purposes in accordance with this licence agreement and in accordance with, and as permitted by, the Usage Rules set out in Apple’s App Store Terms of Service.
(k) MedApps means MedApps Pty Ltd ACN: 605 294 960 of Level 3, 100 Harris Street, Pyrmont NSW, 2009.
(l) MedApps Policies means the then current policies of MedApps regarding the use of the Application, of which MedApps may notify the User from time to time during the Term.
(n) Term means has the meaning given in clause 5.1 of this licence agreement.
(o) User means the person who downloads or is otherwise provided with a copy of the Application and who enters into this licence agreement.
In this licence agreement, headings are inserted for convenience only and do not affect the interpretation of this licence agreement and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
(d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and
(e) if there is any inconsistency between the provisions of this licence agreement and the provisions of Apple’s App Store Terms of Service, the provisions of Apple’s App Store Terms of Service will prevail to the extent of the inconsistency.
MedApps and the User acknowledge that this licence agreement is concluded between MedApps and the User only, and not with Apple. MedApps, and not Apple, is solely responsible for the Application and the content thereof.
2.1 Grant of licence
MedApps grants the User a personal, non-exclusive, non-transferable, not-for resale or sub license, restricted right to access and use the Application for the Permitted Purpose during the Term on iPhone, iPod touch, iPad, Android, or any other devices owned or controlled by the User.
2.2 Licence restrictions
The licence granted to the User under clause 2.1 permits the User to access and use the Application solely for the Permitted Purpose and the User must not access or use the Application for any other purpose. Without limiting the above, the User must not:
(a) make any copies of the Application (other than copies that are made to download the Application and install the Application for the Permitted Purpose on any iPhone, iPod touch, iPad, Android, or any other devices devices owned or controlled by the User as permitted by this licence agreement and by the Usage Rules set forth in Apple’s App Store Terms of Service);
(b) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Application or the Content;
(c) attempt to circumvent or break any licence keys or any other encryption, decryption or other security device or technological protection measure contained in the Application;
(d) distribute any part of the Application or Content for commercial purposes or otherwise sub-licence or resell the Application;
(e) create derivative works from all or any part of the Application or the Content;
(f) transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Application or the Content; or
(g) publish, communicate or otherwise make any part of the Application or the Content publically available.
2.3 Protection measures
The User acknowledges that the Application may contain licence keys or other technological protection measures and may use the licence keys or other protection measures to disable or suspend the Users access to the Application:
(a) following the termination of this licence agreement; or
(b) if the User breaches (or MedApps reasonably suspects the User has breached) any provision of this licence agreement.
3. Updates and support
3.1 The User acknowledges that nothing in this licence agreement imposes obligations on MedApps to develop, release or install for the User any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Application (Updates). However, if MedApps does develop or release any Updates, it may require that all such Updates be used by the User.
3.2 The User also acknowledges that nothing in this licence agreement imposes obligations on MedApps to provide any services to the User in respect of the Application including (without limitation) development or customisation services, technical support, training or maintenance services.
3.3 The User and MedApps acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application (whether under this licence agreement or pursuant to any applicable law).
4. Documentation and policies
The User must use only the most recent version of the Documentation provided or made available by MedApps, and must follow any directions in the Documentation regarding the Use of the Application. The User must also ensure that its access to and use of the Application complies with all current MedApps Policies.
5.Term and termination
This licence agreement commences on the Commencement Date and will continue until terminated pursuant to clause 5.2.
MedApps may terminate this licence agreement and the licence granted under clause 2.1 effective immediately on providing written notice of termination to the User if:
(a) the User breaches a term or condition of this licence agreement and fails to remedy such breach within seven days after being provided with written notice of the breach by MedApps;
(b) the User breaches a term or condition of this licence agreement which MedApps considers cannot be remedied; or
(c) MedApps terminates its provision of the MedApps services to the Customer under the Terms or terminates the User’s access to, or use of, the Application under the Terms (as applicable).
5.3 Post termination obligations
Immediately on termination of this licence agreement, the User must:
(a) cease all use of the Application; and
(b) permanently delete all copies of the Application from any devices in its possession, custody or control.
5.4 Survival of certain terms
The party’s obligations under clauses 2.2, 5.4, 6, 7.3 and 9 of this licence agreement will survive notwithstanding any termination of this licence agreement.
6. Intellectual Property
6.1 MedApps’ Intellectual Property
The User acknowledges that, subject to clause 2.1, nothing in this licence agreement grants the User any ownership of, or rights in respect of, the Intellectual Property in the Application or any Documentation or any Improvements to the Application or any Documentation.
Any Intellectual Property in respect of the Application or Documentation (including any Intellectual Property in any Improvements to the Application or Documentation) which is created by, or vests in, the User during the Term is assigned to MedApps immediately on the Intellectual Property being created or vesting in the User and the User agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
6.3 Promotion and marketing
(a) The User agrees that, for the purposes of promoting and marketing MedApps and the Application, MedApps is entitled to notify others of MedApps’ relationship with the User and the User’s use of the Application.
(b) The User acknowledges and agrees that MedApps may provide Users with emails, text messages, push notifications, alerts and other messages (Notifications) related to the Application and/or Medapps Products and/or products and services related to the User’s area of practice or place of work and/or educational materials.
(c) The User may change his or her Notification preferences through the Application.
6.4 Personal Information
(a) MedApps may collect and may use a User’s personal information for the purposes of:
(i) providing a User with access to, and use of, the Application or other MedApps products and services and for any necessary related purposes; and
(ii) disseminating or distributing information or other educational materials to Users that is relevant to a User’s area of practice or place of work.
6.5 Third Party Intellectual Property
MedApps and the User acknowledge that, in the event of any third party claim that the Application or the User’s possession and use of the Application infringes that third party’s intellectual property rights, MedApps (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Consumer Guarantees
7.1 Australian Consumer Law
The Australian Consumer Law (ACL) may confer certain consumer guarantees in relation to the Application or the performance of MedApps obligations under this licence agreement if the User acquires the Application as a ‘consumer’ within the definition of section 3 of the ACL.
7.2 Limitation of liability
If the User makes a claim against MedApps regarding the goods or services provided under this licence agreement in respect of a breach or alleged breach by MedApps of the consumer guarantee provisions of the ACL and the relevant goods or services are not of a kind ordinarily acquired for personal, domestic and household use, then to the extent permitted by law, MedApps’ liability to the User for such a breach or alleged breach of the consumer guarantee will be limited, at the election and discretion of MedApps, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of the equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(b) if the breach relates to services:
(i) the supply of the services; or
(ii) the payment of the cost of having the services supplied again.
7.3 Liability of Apple
The User and MedApps acknowledge that MedApps (and not Apple) is responsible for addressing any claims of the User or any third party relating to the Application or the User’s possession and/or use of the Application, including, but not limited to:
(a) product liability claims;
(b) any claim for the Application fails to conform to any applicable legal or regulatory requirement; and
(c) any claim arising under consumer protection or other similar legislation.
8. Warranties and liability
8.1 Warranty exclusions
MedApps does not warrant that the Application or any portion of the Application will meet the User’s requirements, the operation of the Application will be uninterrupted or error-free, the Application will be compatible with the User’s other software or systems or that the Documentation will be error free. All express or implied warranties in relation to the Application are expressly excluded.
8.2 Process for Warranty claims
In the event of any failure of the Application and the User has paid a purchase price or other fee to acquire the Application, the User may notify Apple, and Apple may refund the purchase price or other fee for the Application to the User and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of MedApps (subject to clauses 7.2, 8.1 and 8.3).
8.3 MedApps’ liability
(a) MedApps is not liable for any loss, liability or claim suffered or incurred by a User arising from its use of the Application.
(b) Notwithstanding any other provision of this licence agreement, MedApps is not liable for any loss or liability suffered by the User or a third party arising from a User’s use of the Application including, but not limited to, any clinical decisions made by that User in reliance on information made available on the Application.
(c) Subject to clause 7 and notwithstanding any other provision of this licence agreement, the maximum aggregate liability of MedApps to the User under or in connection with this licence agreement (including for breach of this licence agreement by MedApps or any negligent act or omission of MedApps) shall be limited to the amount of any purchase or other fee paid by the User to MedApps by the User for the Application up to a maximum amount of AUD $1,000.
(d) MedApps will not be liable to the User for any Consequential Loss incurred by the User under, or in connection with, this licence agreement or as a result of the User’s use of the Application, even if MedApps has been advised of the possibility of such Consequential Loss being incurred.
The User will indemnify MedApps and each of its directors, officers, employees, agents, contractors and related bodies corporate (Indemnified Parties), and keep each of them indemnified, against any claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:
(a) any breach by the User of this licence agreement; or
(b) any negligent, or wilful acts or omission, theft, misconduct, dishonesty or fraud committed by the User, its officers, directors, employees, agents, representatives, delegates or contractors.
10. General provisions
10.1 International conventions
The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to this licence agreement or the subject matter hereof.
The User may not assign or otherwise deal with any of its rights or obligations under this licence agreement without the prior written consent of MedApps. MedApps may assign, novate or otherwise deal with its rights under this licence agreement at any time effective immediately upon MedApps notifying the User of the assignment or novation.
10.3 Entire agreement
This licence agreement and the Terms (as applicable) constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
10.4 Waiver and variation
This licence agreement will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under this licence agreement to a party constitutes a waiver and the party may still exercise that right in the future.
10.5 Liability of parties
If a party consists of more than one person:
(a) an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;
(b) a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
(c) a representation, warranty or undertaking made by those parties Is made by each of them.
10.6 Apple a third party beneficiary
MedApps and the User acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this licence agreement and that, upon the end-user’s acceptance of the terms and conditions of this licence agreement, Apple will have the right (and will be deemed to have accepted the right) as a third party beneficiary to enforce this licence agreement against the User.
10.7 User’s Legal Compliance
The User represents and warrants that he or she is not:
(a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a ‘terrorist supporting’ country; and
(b) listed on any U.S. Government list of prohibited or restricted parties.
If any provision of this licence agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this licence agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
10.9 Contacting MedApps
The User may contact MedApps by email. Any questions, complains for claims with respect to this licence agreement should be directed to MedApps by email at [email protected]
10.10 Governing law
This licence agreement will be governed by and construed exclusively under the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Federal Court of Australia.