This Minfos End User Licence Agreement (this ’Agreement’) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Symbion Pty. Ltd. (‘Minfos,’ ‘We,’ ‘Us,’ or ’Our’) and you or the entity you represent (‘You’’ or “Your”). This Agreement takes effect when You use any of the Service Offerings (the ’Effective Date’). If You are entering into this Agreement for an entity, such as the company You work for, You represent to us that You have legal authority to bind that entity.
Parts of the Service Offerings may be provided from a Hosted Facility, subject to the terms of this Agreement.
- Part 1 contains the terms and conditions of the licence to use the Service Offerings.
- Part 2 contains the terms and conditions relating to Maintenance, Training and Product Database.
- Part 3 contains general terms and conditions, including interpretation rules.
- Part 4 contains definitions of certain capitalised terms used in this Agreement.
1. Licence Terms And Conditions
1.1 Grant of Licence
1.1.1 Minfos grants to You a non-exclusive, non-transferable licence (without the right to sub-licence) to use the Service Offering(s) in accordance with the provisions of this Agreement, on the System specified in the Schedule (‘Licence’).
1.1.2 The Licence will continue for the Term unless terminated earlier in accordance with this Agreement, and will continue as a monthly licence thereafter, which will be automatically renewed on the first day of each month (on the Terms and Conditions contained in this Agreement) unless terminated earlier in accordance with clause 3.4.
1.1.3 Minfos will deliver or provision the Service Offering(s) and any Documentation to You on the date of commencement of this Agreement, or at such other time as the parties may agree.
1.1.4 Subject to payment by You of the Implementation Fee specified in the Schedule, Minfos will install or provision the Service Offering(s) on the System specified in the schedule (including, if indicated in the Schedule, conversion of the System and Your data), but is not required to provide any training in respect of the Service Offering(s).
1.1.5 Additional work or setup outside the installation set out in the Schedule may incur additional costs as determined by Minfos, payable by You on demand after an invoice has been issued.
1.1.6 The Service Offering(s) will be installed or provisioned on the Preferred Installation Date which is either set out in the Schedule or otherwise agreed in writing between the parties and if for any reason Minfos is unable to install the Service Offering(s) on the Preferred Installation Date, an alternative date will be agreed between the parties.
1.1.7 You will pay to Minfos the monthly licence and maintenance fee (‘Monthly Fee’) specified in the Schedule in respect of each month for which this Agreement continues in effect.
1.1.8 Unless increased in accordance with clause 1.1.10, the Monthly Fee will be the amount specified in the Schedule as the Monthly Fee.
1.1.9 After the first twelve months of the Agreement, and subject to clause 1.1.10 & 1.1.11, Minfos may increase the amount of the Monthly Fee by notifying You in writing of the increase at least two weeks prior to the commencement of the month in respect of which the increase will apply unless this Agreement is subject to Fixed Term conditions, in which case the Monthly Fee will remain the same over the agreed term.
1.1.10 If the Monthly Fee is based on the number of Terminals in use, Minfos reserves the right to undertake yearly electronic audits of the number of Terminals operating Minfos within a pharmacy (averaged over the month in which the audit is performed). Minfos reserves the right to increase monthly fees if the number of terminals in use has increased above the next higher price bracket.
1.1.11 If clause 1.1.10 does not apply, Minfos may not increase the Monthly Fee by an amount greater than 5% of the Monthly Fee currently payable at the time the increase is notified, or by an amount that exceeds the proportion that the increase in the CPI Index Number at the date of notification of the increase bears to the CPI Index Number at the date of the last determination of the Monthly Fee, whichever is higher.
1.1.12 For the purposes of clause 1.1.10, ‘CPI Index Number’ means the All Groups Consumer Price Index (weighted average of eight capital cities) number published from time to time.
1.2 Permitted Use
1.2.1 You may use the Service Offering(s) on the System.
1.2.2 You may use the Service Offering(s) on a Backup System if the System is inoperative because of a malfunction or emergency, provided that the Service Offering(s) is immediately removed from any emergency backup computer when the service interruption of the System is rectified;
1.2.3 Except as otherwise permitted under this Agreement, Licensee must not:
- Sub-licence all or any part of the Service Offering(s) or Documentation;
- Re-sell distribute or transfer all or any part of the Service Offering(s) or Documentation;
- Use the Service Offering(s) to provide services to another person;
- Provide access to the Documentation to any person other than Your personnel;
- Attempt to disassemble, decompile or otherwise reverse engineer or reverse compile the Service Offering(s), except as permitted under the Copyright Act;
- Copy, alter, customise, modify or create derivative works of the Service Offering(s) or Documentation; or
- Remove, obliterate or alter any proprietary notice on the Service Offering(s) or Documentation.
1.3.1 To the Service Offerings: We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.
1.3.2 To the APIs: We may change, discontinue or deprecate any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
1.3.3 To the Service Level Agreements: We may change, discontinue or add Service Level Agreements from time to time. We will notify you of any material change to the Service Level Agreements.
1.4 Intellectual Property
1.4.1 You acknowledge and agree that:
- Minfos and/or our licensors, own all Intellectual Property Rights in the Service Offering(s), including without limitation, all modifications, derivatives and translations of the Service Offering(s), and the Documentation and any other document provided by Minfos in connection with the Service Offering(s) including but not limited to training documents; and
- This Agreement does not constitute or effect the sale or transfer of title to You of any Intellectual Property Rights in the Service Offering(s) or the Documentation.
1.4.2 All trademarks, copyrights and restricted rights notices placed on the original Service Offering(s) or Documentation must be reproduced on every copy of the Service Offering(s) or Documentation.
1.4.3 You must immediately notify Minfos in writing of any actual, suspected or anticipated infringement of Minfos’ Intellectual Property Rights in the Service Offering(s) or Documentation that comes to Your attention.
1.4.4 Minfos may, in its absolute discretion, choose to prosecute any infringement of its Intellectual Property Rights in the Service Offering(s) or the Documentation, and You agree to provide Minfos with all necessary reasonable assistance in relation to such proceedings.
1.4.5 If it is determined by any court that the Service Offering(s) infringes the Intellectual Property Rights of a third party, Minfos will, at its own expense:
- Modify the Service Offering(s) so it becomes non-infringing; or
- Obtain for You a licence (at Minfos’ cost) to continue using the Service Offering(s); or
- If neither (a) nor (b) are reasonably possible, terminate this Agreement and refund to You the Monthly Fee on a pro rata basis.
This is your sole remedy.
1.4.6 In no case will Minfos be liable to compensate You for consequential loss or damage.
1.4.7 You will indemnify Minfos against any action brought against Minfos by a third party in relation to any infringement of any Intellectual Property Rights by You (other than in respect of consequential loss or damage).
1.5.1 You must not modify the Service Offering(s) or permit any person other than Minfos to modify the Service Offering(s) without the prior written approval of Minfos.
1.5.2 Although Minfos may, from time to time, offer to integrate new features of a generic nature into the Service Offering(s) as determined by Minfos, You acknowledge that Minfos is under no obligation to provide any new customised features that are requested by You.
1.5.3 If the Service Offering(s) is modified or altered by You in breach of clause 1.5.1:
- Minfos may terminate this Agreement in accordance with clause 3.4;
- the Service Offering(s) as modified or altered remains the property of Minfos;
- You fully indemnify Minfos against all liability (other than in respect of consequential loss or damage) which may be incurred by Minfos if such modifications or alterations infringe any Intellectual Property Rights of a third party or otherwise cause Minfos to suffer loss, damage or expense; and
- Minfos may terminate or withhold any Maintenance Services at its sole discretion without any refund of any pre-paid Monthly Fee being due to You.
1.6 Data Security
1.6.1 You will be solely responsible for the use, supervision, management and control of the Service Offering(s) supplied in accordance with this Agreement.
1.6.2 You must ensure that the Service Offering(s), Documentation and any other data in connection with the Service Offering(s), whether in whole or in part, are protected at all times from misuse, damage, destruction or any form of unauthorised use.
1.6.3 You must keep accurate records of any copying, access or disclosure of the Service Offering(s) and related data by a third-party. If Minfos requests, You must provide Minfos with a copy of all or any part of such records.
1.6.4 You are responsible for properly configuring and using the Service Offering(s) and taking reasonable steps to maintain appropriate security, protection and backup of Your data, which may include the use of encryption technology to protect Your data from unauthorized access and routine archiving Your data. Minfos log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf at your risk.
1.6.6 We will implement reasonable and appropriate measures designed to help you secure your content against accidental or unlawful loss, access, or disclosure.
2. Maintenance Terms And Conditions
2.1.1 Clauses 2.2, 2.3, and 2.4 apply in respect of periods for which You receive Maintenance Services and periods in respect of which You has elected to purchase training. ‘Maintenance Services’ are comprised of Minfos’ obligations to provide support services, updates and new releases under clauses 2.2, 2.3 and 2.4.
2.1.2 In consideration for the payment of the Monthly Fee, Minfos will provide Maintenance Services to You during the Term, including any further period in respect of which the Agreement continues by virtue of clause 1.1.2.
2.2 Support Services and Training
2.2.1 Minfos will provide software Support Services for the Service Offering in accordance with the Minfos Support Service Level Agreement;
2.2.2 Support Services will be provided by way of:
- Telephone technical assistance;
- On-site attendance where necessary (subject to the Minfos Support SLA)
- Other methods as Minfos considers necessary.
2.2.3 Subject to clause 2.1, Minfos will provide the Support Services on the days and between the hours specified in the Schedule.
2.2.4 Minfos may, from time to time, review the days on which, and the hours during which, it will provide the Support Services and emergency support. As a result of such a review, Minfos may vary such days and hours by written notice to You at least 2 months prior to the date on which such varied days and hours are to take effect, provided that the total number of Support Services provided per week will at no time be less than 40 hours. That notice to You shall be deemed to amend the days and hours specified in the Schedule and to form part of this Agreement.
2.2.5 If You ask Minfos to provide Support Services, Minfos must use reasonable endeavours to acknowledge such request in accordance with the Service SLA, but will not bear any liability for a failure to acknowledge the request within that time or for a failure to rectify any problem within that time.
2.2.6 You must provide all necessary information and access to Minfos for Minfos to carry out the Support Services, including access to the diagnostics and error logs comprising the Service Offering(s), and including such telecommunications and other facilities including without limitation remote access and/or remote control as are reasonably required by Minfos to provide the Support Services and Training.
2.2.7 You must maintain your System in accordance with the specified System Requirements for the Service Offerings.
2.2.8 You will provide to Minfos, in such form as Minfos requests from time to time, any data files that may be required by Minfos for the diagnosis or testing of the Service Offering(s).
2.2.9 If the access, information or facilities required pursuant to clauses 2.2.5, 2.2.6, 2.2.7, 2.2.8 is not provided or maintained by You, then Minfos is either released from any further obligation to provide the Support Services or may charge a service fee (‘Service Fee’) as appropriate until the service obligation is remedied.
2.2.10 The Support Services do not include:
- Correction of errors or defects caused by operation of the Service Offering(s) in a manner other than that authorised or specified by Minfos;
- Correction of errors or defects caused by modification, revision, variation, translation or alteration of the Service Offering(s) not authorised by Minfos;
- Correction of errors or defects caused by the use of the Service Offering(s) by a person not authorised by Minfos;
- Correction of errors or defects caused by the use of the Service Offering(s) on incompatible or non-supported Minfos software versions, hardware, operating system environments;
- Correction of errors or defects caused in whole or in part by the use of computer programs other than the Service Offering(s);
- Correction of errors or defects caused by the failure of You to provide suitably qualified and adequately trained operating and programming staff for the operation of the Service Offering(s);
- Rectification of operator errors;
- Rectification of errors or defects caused by incorrect use of the Service Offering(s);
- The training of operating or programming staff;
- Rectification of errors or defects caused by equipment fault;
- Equipment maintenance;
- Diagnosis or rectification of faults not associated with the Service Offering(s);
- Furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Minfos; or
- Correction of errors arising directly or indirectly out of Your failure to comply with this Agreement, including maintenance of the data base in relation to corruption caused by user error.
2.2.11 You acknowledge that the Support Services do not include training as to the use of the Service Offering(s).
2.2.12 In consideration for payment of the Training Fee specified in the Schedule, Minfos will provide the Training specified in the Schedule at such times as Minfos may nominate to You from time to time, save that all Training purchased must be provided within one calendar year of the date of purchase of such Training.
2.2.13 Minfos may provide Training additional to that set out in the Schedule. If Minfos is required to provide any additional training or other service or support not otherwise covered by this Agreement, Minfos will render a separate invoice for such training, service or support, which You must pay within 14 days of the date of receipt of the invoice.
2.3 Updates and New Releases
2.3.1 Minfos will provide, at its discretion, updates and new releases of the Service Offering(s) to You as they become available, provided that Minfos is under no obligation to provide any update or new release, or any new features in updates or new releases.
2.3.2 Minfos will inform You by email (or such other means of communication as may be agreed by the parties from time to time) of any update to the Service Offering(s) and You may download and install any such update from a website address supplied by Minfos.
2.4 Product database
2.4.1 Minfos will maintain the product database (‘Product Database’) and make the database available to You as a part of the Minfos Service Offering(s).
2.4.2 You acknowledge that information contained in the product database is provided by external parties and Minfos does not provide a warranty for the accuracy, validity or currency of any product information contained in the Service Offering(s).
2.4.3 You indemnify Minfos from any business interruption or loss experienced directly, or indirectly from the use of the product database.
2.5 Access to User Data
2.5.1 You grant Minfos, its employees, agents and contractors the right to access, retrieve, transmit, use, store, copy, modify and create derivate works, including reports based on information and data stored on the System.
2.5.2 Nothing in this Agreement affects Your ownership of the data.
2.5.3 You warrant that You own the data and the System and/or that You have all necessary licenses, rights, consent, permissions and approval to the data and the Systems, including, but not limited to, any System of the pharmacy or customer or agent, in order to enable Minfos to carry out its obligations under this Agreement.
3. General Terms And Conditions
3.1 Representations and Warranties
3.1.1 You warrant that in entering into this Agreement you have not relied on any representation made by Minfos which has not been stated expressly in this Agreement, nor upon any descriptions, illustrations or specifications contained in any document, including any technical outline or publicity material, produced by or on behalf of Minfos, but have relied on your own skill and judgment.
3.1.2 Where You are operating a Multi-Store Head Office, You warrant that You have the authority to act in accordance with and sign this Agreement on behalf of each store associated with the Head Office.
3.1.3 Minfos does not represent or warrant that:
- The Service Offering(s) will function as intended on hardware or operating environment specifications that do not comply with the minimum Minfos System Requirements;
- The Service Offering(s) will function as intended if the System is not maintained in good working order;
- The Service Offering(s) will meet Your requirements or operate in the configuration selected or requested by You;
- The operation of the Service Offering(s) will be uninterrupted or error free, or that Minfos will be able to correct all program errors in the Service Offering(s);
- Any required data conversion will be successful without any error including but not limited to the loss of data.
- Any data stored or maintained as part of the Service Offering will be error-free.
3.1.4 To the extent permitted by law, Minfos excludes all conditions and warranties in relation to the Service Offering(s) and in relation to any Maintenance Services or training which would otherwise be implied or incorporated by law.
3.2 Limitation of Liability
3.2.1 All express and implied terms, conditions, warranties, and guarantees which otherwise might apply to, or arise out of, this Licence are excluded other than:
- as provided in this Licence; and
- terms, conditions, warranties and guarantees which cannot lawfully be excluded (for example our goods and services may come with guarantees that cannot be excluded under the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act) (ACL).
3.2.2 If Minfos is held liable for a breach of a term, condition, warranty or guarantee described in clause 3.2.1, Minfos liability is, to the fullest extent permitted by applicable law, limited to one or more of the following as Minfos determines in its absolute discretion: :
- In the case of the supply of goods, such liability shall be limited to any one or more of:
i. The replacement of the goods or the supply of equivalent goods;
ii. The repair of the goods;
iii. The cost of replacing the goods or of acquiring equivalent goods; or
iv. The cost of having the goods repaired; or
b. In the case of the supply of services, such liability shall be limited to any one or more of:
i. The resupply of the services; or
ii. The cost of the resupply of the services.
3.2.3 Neither party will be liable in any circumstances for indirect or consequential loss (including loss of profits and including the consequences flowing from loss of data or other information), howsoever caused; or an amount greater than an amount equal to the fees paid to Minfos under this Agreement in respect of the 12 months prior to the commencement of the calendar month in which the event giving rise to the liability occurred.
3.2.4 Neither party will be held liable to the other party to the extent that such liability is due to an event of force majeure.
3.2.5 Minfos may not be able to rely on this clause 3.2.1 if it is not fair and reasonable under any law which cannot lawfully be excluded or modified by agreement including under section 64A(3) of the ACL and corresponding provisions of state legislation.
3.3.1 All amounts payable under this Agreement that remain unpaid following 60 days from the date on which they fall due will bear interest at the 90 day bank bill rate plus 5 percent.
3.3.2 If any amount is unpaid when due for more than 60 days, Minfos may suspend its obligations under this Agreement until payment is made, and interest will continue to accrue in accordance with clause 3.3.1.
3.3.3 If You wish to pay the Monthly Fee and all other fees payable upon commencement of this Agreement (as set out in the Schedule) (‘Other Fees’) using a credit card, you must complete the Credit Card Request Form available on request from Minfos
3.3.4 By completing the Credit Card Request Form, you authorise Minfos to debit your credit card for each Monthly Fee and the Other Fees as and when they fall due. Unless Minfos provides you with notification to the contrary, Minfos will debit your credit card on the 1st day of each quarter during the Term for all amounts due to Minfos in respect of the next quarter. For this purpose, ‘quarter’ means a period of 3 months, commencing on the first day of the fourth calendar month of the term.
3.3.5 If the Monthly Fee increases pursuant to clause 1.1.9, Minfos is entitled to debit such increased amount from your credit card whether or not You have received notice of the relevant increase.
3.3.6 You must make payments to Minfos under this Agreement without set-off, counter claim, conditions, restrictions, or withholdings as deductions of any kind unless required by law.
3.4.1 A party may terminate this Agreement immediately at any time by written notice to the other party:
- If an Insolvency Event occurs in respect of the other party; or
- If the other party commits any other breach of this Agreement and fails to rectify such breach within 14 days after receipt of written notice specifying the nature of the breach and requiring the other party to remedy the breach.
3.4.2 Either party may terminate this Agreement without cause by provision of 3 months’ written notice to the other party.
3.4.3 Upon termination or expiration of this Agreement for any reason whatsoever, You must immediately cease use of the Service Offering(s) and must immediately remove all copies of the Service Offering(s) and any Documentation.
3.4.4 Termination of this Agreement will be without prejudice to any claim either party may have against the other pursuant to this Agreement as at the date of termination.
3.4.5 After termination or expiry of the Agreement, Minfos will provide to You a final invoice for the Monthly Fee, prorated up to and including the date of termination or expiry. Unless agreed otherwise between the parties, costs incurred for installation and training will not be refunded by the Minfos.
3.4.6 If this Agreement is terminated by You after the signing of this Agreement but prior to the completion of Installation, You must pay to Minfos on demand an Administration Charge which is an amount that the parties agree is a genuine pre-estimation of the loss or damage suffered by Minfos due to the termination of the Agreement prior to Installation completion.
3.4.7 Where this Agreement is for a Fixed Term and Minfos has provided you with a discount off list pricing that applied at the date of signing, and is terminated by us for the reasons set out in clause 3.4.1 or you, in accordance with clause 3.4.2, you must pay to Minfos the total amount of the discount applied to your Fees up to the date of termination.
3.5 Confidentiality Undertakings
3.5.1 The parties must keep the contents and subject matter of this Agreement, and any other information or data received by virtue of being a party to this Agreement (‘Confidential Information’) strictly confidential.
3.5.2 The parties agree to not use (whether for their own benefit or the benefit of a third party) or disclose any Confidential Information, whether orally or in writing, unless:
- Such information is available to the general public other than due to a breach of this Agreement;
- Such disclosure is required by law, in which case the disclosing party must provide the other party with written notification of the required disclosure as soon as possible;
- The other party has authorised the disclosure in writing (on such terms as the other party deems fit); or
- The disclosure is contemplated by this Agreement.
3.5.3 You must not include in, or place on, any website, search engine, bulletin board, news group or online discussion group any reference to the name of the Service Offering(s), the operation of the Service Offering(s) or Minfos without obtaining the prior written consent of Minfos.
3.5.4 You must not use unsolicited commercial email (“Spam”), to send any information containing a reference to Minfos, the Service Offering(s) or any services that could be construed as being substantially generated or produced by the Service Offering(s), to any third party without obtaining the prior written consent from Minfos.
3.5.5 The parties agree to cooperate reasonably with each other in making any media releases and announcements to be made in connection with this Agreement. Each party agrees to take all reasonable care to maintain the good name and reputation of the other party in any such media releases and announcements.
3.6.1 A notice in connection with this Agreement must be:
- In writing;
- Signed by an authorised officer of the relevant party; and;
3.6.2 Given to the recipient party:
- By hand delivery;
- By pre-paid mail sent to that party;
- By facsimile transmission to that party; or
- By email transmission to that party.
3.6.3 For the purposes of clause 3.6.1:
- Deliveries must be delivered to the address of the recipient party set out in the Schedule;
- Mail must be sent to the address of the recipient party set out in the Schedule, and must be sent by airmail if that address is outside Australia;
- Facsimile messages must be transmitted to the facsimile number of the recipient party set out in the Schedule;
- Email messages must be transmitted to the email address of the recipient party set out in the Schedule; and
- In each case, must be marked for the attention of the person specified in the Schedule in relation to the recipient party.
3.6.4 A party may change any of the notice details specified in the Schedule by providing not less than 5 business days’ notice to the other party.
3.6.5 Proof of posting by pre-paid mail is proof of receipt of a notice on the second clear business day after posting.
3.6.6 Proof of transmission by facsimile or email is proof of legible receipt at the time of transmission, but if a transmission is not made on a business day or not made before 5.00pm, it will be deemed received at 9.00am on the next business day after transmission.
3.7 Entire Agreement
3.7.1 This Agreement comprises the entire understanding between the parties as to its subject matter. It supersedes all prior agreements, representations, conduct, and understandings.
3.7.2 No amendment of, or addition to, this Agreement is binding unless it is in writing and executed by the parties to this Agreement.
3.8.1 If any clause or sub-clause of this Agreement is deemed invalid, whether by a court or otherwise, it will be severed from this Agreement, and such invalidity will not affect the validity of the remainder of the Agreement.
3.9 No Waiver
3.9.1 A party’s failure or delay to exercise a power or right under this Agreement is not a waiver of that right, and the exercise of a power or right does not preclude the future exercise of that or any other power or right.
3.10 Further Acts
3.10.1 The parties will do all things and execute all documents required to permit or facilitate the performance of this Agreement.
3.11.1 You agree to pay, or reimburse to Minfos, all local, state, or federal taxes or foreign government taxes as may be imposed upon Minfos, You, or both, with respect to the ownership, leasing, licensing, possession, or use of the Service Offering(s), or otherwise arising from this Agreement.
3.11.2 All fees are based on costs and exchange rates, taxes, duties and other government imposts, as at the date of this Agreement. Minfos reserves the right to adjust any fees at any time to take into account any variation in any of these items.
3.11.3 If Minfos is required by any law of the Commonwealth of Australia or any State or Territory of Australia to pay a goods and services tax, value added tax or similar tax in connection with this Agreement, or in connection with any supply made by Minfos under this Agreement, You will, on demand (and in addition to all other moneys payable by You to Minfos under this Agreement), pay to Minfos (without any right of set-off) the amount of any such tax payable by Minfos.
3.12.1 This Agreement may be executed in counterparts, which when taken together are one instrument.
3.13 Assignment and Sub-Licensing
3.13.1 Neither party is entitled to assign or sub-licence its rights under this Agreement without the prior written consent of the other party (which consent must not be unreasonably withheld), other than an assignment or sub-licence to a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) where notice of such assignment or sub-licence is provided to the other party.
3.14 Privacy obligations
3.14.1 You must comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws that may be in force from time to time which, amongst other things, regulate the collection, storage, use and disclosure of personal information.
3.14.2 Notwithstanding any other terms in this agreement, You must ensure that the use of the Service Offering(s) and the handling of any information stored using the Service Offering(s) do not breach any applicable privacy laws.
3.14.3 You will indemnify Minfos against all loss, damage, claim, demand, cost or expense (other than in respect of consequential loss or damage) incurred by Minfos as a result of Your breach of clauses 3.14.5 or 3.14.6.
3.14.4 In this clause 3.14, the terms ‘personal information’, ‘sensitive information’, ‘Australian Privacy Principles’ (APPs) and ‘Privacy Commissioner’ have the same meaning as they have in the Privacy Act 1988 (Cth) (the Privacy Act).
3.14.5 Each party agrees in respect of its rights and obligations under this Licence:
- to use personal information obtained during the course of exercising its rights and obligations under this Licence, only for the purposes of this Licence and in accordance with the applicable privacy laws;
- not to do any act or engage in any practice that would breach an APP;
- to carry out and discharge the obligations contained in the APPs;
- to immediately notify the other party if a party becomes aware of a breach or possible breach of any of the obligations contained in, or referred to, in this clause 3.14.5 (and in your case clause 3.14.6); and
- to comply with any directions, guidelines, determinations or recommendations of the Information Commissioner or Privacy Commissioner, to the extent that they are not inconsistent with the requirements of this clause 3.14.
3.14.6 Without limiting clause 3.14.5, you must:
- provide privacy collection statements in accordance with the applicable privacy laws to each individual from whom you collect personal information for the collection, use and disclosure of personal information to you and Minfos (for the purposes of providing IT support services). Where you collect health information, obtain the consent of each individual from whom you collect that information for the collection, use and disclosure of health information to you and Minfos (for the purposes of providing IT support services) and obtain updated consents where required; and
- notify individuals whose personal information you hold, that complaints may be investigated by the Privacy Commissioner who has power to award compensation in appropriate circumstances.
3.15 Governing Law
3.15.1 This Agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
3.16 Interpretation Rules
3.16.1 In this Agreement words or expressions:
- Importing the singular include the plural and vice versa;
- Importing a gender include all other genders; and
- Denoting individuals include corporations, firms, unincorporated bodies, authorities and instrumentalities;
3.16.2 A reference to this Agreement is a reference to this Agreement as amended, varied, novated, supplemented, or replaced from time to time;
3.16.3 A reference to a party to this Agreement includes that party’s executors, administrators, successors, and permitted assigns;
3.16.4 Where a word or phrase is defined or given meaning, any other part of speech or grammatical form has a corresponding meaning;
3.16.5 A reference to a clause, sub-clause, item, Part or Schedule is a reference to a clause, sub-clause, item, Part or Schedule of this Agreement;
3.16.6 A reference to $ or dollars is a reference to Australian dollars;
3.16.7 A reference to a business day means any day on which banks are open for general banking business in the State or Territory in which You are located, but does not include any Saturday, Sunday or public holiday; and
3.16.8 A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in this Agreement.
4.1.1 ‘Administration Charge’ means administration expenses reasonably incurred by Minfos in connection with this Agreement up to and including the date of termination including but not limited to installation costs to date and technician travel costs.
4.1.2 ‘API’ means a Service Offering(s) programming interface.
4.1.3 ‘Backup System’ means compliant computer hardware and operating environment that pertains to a particular Pharmacy and business that is made available in the event that the System is unavailable.
4.1.4 ‘Confidential Information’ means all non-public information disclosed by Us, Our affiliates, business partners or Our or their respective employees, contractors or agents, that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes:
- Non-public information relating to Our or Our affiliates’ or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
- Third-party information that We are obligated to keep confidential; and
- The nature, content, and existence of any discussions or negotiations between You and Us or Our affiliates. Confidential Information does not include any information that:
- Is, or becomes, publicly available without breach of this Agreement;
- Can be shown by documentation to have been known to You at the time of Your receipt from Us;
- Is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or
- Can be shown by documentation to have been independently developed by You without reference to the Confidential Information.
4.1.5 ‘Content’ means Content we or any of our affiliates make available in connection with the Services or on the Minfos Site to allow access to and use of the Services, including Service Offering(s), software libraries; command line tools; and other related technology. Content does not include the Services.
4.1.6 ‘Documentation’ means the getting started guides, user guides, quick reference guides, and other technical and operations Documentations and specifications for the Services made available to you by Minfos, which may be updated by Us from time to time.
4.1.7 ‘Fixed Term’ means a contracted term of agreement between Minfos and You for the supply of the Service Offering.
4.1.8 ‘Force Majeure’ means any act of God, fire, earthquake, storm or flood, industrial dispute, unavoidable accident, requirement or restriction of any Government, loss of supply of essential services including, but not limited to, electrical power and air conditioning, and any other cause beyond the reasonable control of Minfos.
4.1.9 ‘Hosted Facility’ means the use of third-party hosting, applications, and storage services provided by a Tier‑1 Australian service provider.
4.1.10 ‘Insolvency Event’ means, in relation to a party, except for the purpose of a solvent reconstruction or amalgamation which has the prior written consent of the other party, the happening of one or more of the following events:
- Process is filed in a court seeking an order that it be wound up or that a Controller be appointed to it or any of its assets, unless the application is withdrawn, struck out or dismissed within 7 days of it being filed;
- An order is made that it be wound up or that a Controller be appointed to it or any of its assets;
- A resolution that it be wound up is passed;
- A liquidator, provisional liquidator, Controller or any similar official is appointed to, or takes possession or control of, all or any of its assets or undertaking; or
- An administrator is appointed to it, a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator to it;
- It enters into, or resolves to enter into, an arrangement, compromise or composition with any of, or any class of, its creditors or shareholders, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise or composition;
- A reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors is proposed or effected;
- Any action is taken by the Australian Securities and Investments Commission with a view to cancelling its registration or to dissolving it;
- It is insolvent within the meaning of section 95A of the Corporations Act, as disclosed in its accounts or otherwise, states that it is unable to pay its debts or it is presumed to be insolvent under any applicable law;
- As a result of the operation of section 459F(1) of the Corporations Act, it is taken to have failed to comply with a statutory demand;
- It stops or suspends or threatens to stop or suspend:
- The payment of all or a class of its debts; or
- The conduct of all or a substantial part of its business or threatens to do so.
- Any event or circumstance set out in section 461 of the Corporations Act occurs in relation to it;
- It is, or makes a statement from which it may reasonably be deduced that it is, the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act; or
- Anything having a substantially similar effect to any of the events specified in the preceding paragraphs happens to it under the law of any jurisdiction.
4.1.11 ‘Intellectual Property Rights’ means all industrial and intellectual property rights including, without limitation:
- Any rights in respect of or in connection with any copyright, patents, trademarks, design rights, or eligible layout rights (whether registered or not); and
- Any rights to apply for registration of any of the rights referred to in 4.1.10 (a).
4.1.12 ‘Minfos Website’ means http://www.minfos.com.au and any successor or related site designated by Us.
4.1.13 ‘Multi-Store Head Office’ means the group head office named in the Schedule and ‘associated store’ is a store associated with the head office named in the Schedule.
4.1.14 ‘Preferred Installation Date’ means the date set out in the Schedule or otherwise agreed between the parties to begin installing Your Minfos system.
4.1.16 ‘Service’ means each of the web services made available by Us or Our affiliates, including those web services described in the Service Terms.
4.1.17 ‘Service Level Agreement’ means all service level agreements that We offer with respect to the Services and post on the Minfos Site, as they may be updated by Us from time to time.
4.1.18 ‘Service Offerings’ means the Services (including associated APIs), the Content, the Trademarks, the Minfos Website, and any other product or service provided by us under this Agreement.
4.1.19 ‘Support Service Level Agreement’ and ‘Support SLA’ means the service policy provided to you by Minfos which may be updated by Us from time to time.
4.1.20 ‘System’ means a computer hardware and operating environment that pertains to a particular Pharmacy and business.
4.1.21 ‘Terminals’ means any System that operates Minfos for any purpose.
4.1.22 ‘Third-Party Content’ means Content made available to You by any third party on the Minfos Website or in conjunction with the Services.
4.1.23 ‘Trademarks’ means any trademarks, service marks, service or trade names, logos, and other designations of Minfos and its affiliates that We may make available to You in connection with this Agreement.