1.1 PRODUCT means all
components of the Perinatal Training Programme supplied by K2MS together with
any updates and/or revisions provided, and may include associated media or
printed materials.
1.2 LICENCE means the
rights to use the Product as described in Schedule A during the term of this
agreement
1.3
LICENSEE means the entity and/ or individuals that access the Product.
1.4 EFFECTIVE DATE means
the date of original access to the Product by the Customer.
1.5 INITIAL PERIOD means
that the Licensee is initially contracted to pay the Annual Maintenance Fee for
three years (3) from the Effective Date.
1.6 SUPPORT means the
Licensee’s right to receive Product support in accordance with the support
details provided in Schedule A
1.7 ANNUAL ACCESS FEE
means the fees paid by the Licensee to K2MS for access to the Product and the
right to the availability of Support for each year.
2.1 Subject to the terms
and condition of this Agreement, K2MS grants the Licensee a non-exclusive,
non-assignable Licence to use the Product during the term of this Agreement (as
referred to in Section 5)
2.2 This Agreement
further grants the Licensee the right to receive Support during the term of
this Agreement
2.3 Notwithstanding
anything else contained in this Agreement, K2MS retains (i) all title to, and,
except as expressly and unambiguously Licensed herein, all rights to the
Product, and all related documentation and materials, (ii) all of their service
marks, trademarks, trade names or any other designations and (iii) all
copyrights, patent rights, trade secret rights and other proprietary rights in
the Product.
The Licensee agrees:
3.1 Not to reverse
assemble, de-compile, or otherwise attempt to derive source code (or the
underlying ideas, algorithms, structure or organization) from the Product or
from any other information, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation.
3.2 To keep the copy of
the Product in the possession of the Licensee, and not to attempt to prepare
any further copies.
3.3 Not to sell, give,
lend, give access to, or otherwise transfer the Product or copies of the
Product to anyone that is not an employee, contractor or consultant of the
Licensee, or to anyone that is not bound to all of the terms and conditions of
this Agreement.
3.4 Not to allow others
or third parties to use the Product.
3.5 Not to remove from
any copy of the Product any Product identification, copyright or other notices.
3.6 Not to modify,
incorporate into or with other software, or create a derivative work of any
part of the Product.
3.7 To pay the Annual Access
Fee in advance of the anniversary of the Effective Date for Access to be
provided in the subsequent year of the Agreement.
3.8 The Licensee shall
not assign, sub-Licence, sub-contract, transfer or otherwise dispose of any of
its rights or obligations under this Agreement without the prior written
consent of K2MS.
4.1 Without prejudice to
any other rights, K2MS may immediately terminate the Licence if the Licensee
fails to comply with any of the terms and conditions of this Agreement. In such
an event, the Licensee must cease usage of the Product.
4.2 All of the terms and
conditions of this Agreement shall survive termination with the exception of
the Licence as defined in Sections 1.2 and Sections 2.1; 2.2; 2.3 Termination
is not an exclusive remedy and all other remedies will be available to Licensor
whether or not the Licence is terminated.
5.1 This Agreement
incorporates a Licence to use the Product from the Effective Date for one year
and to receive Access support for one year. This Agreement will automatically
renew for a further year on each anniversary of the Effective Date. The
Licensee may cancel such automatic renewal by giving twelve months’ notice in
writing to K2MS. Upon the anniversary of the Effective Date, such cancellation
will cancel the Licensed right to access the Product and the right to receive Support.
Such cancellation can only be implemented after three years from the Effective
Date.
5.2 Renewal of the
Agreement each year is conditional upon the payment by the Licensee of the
Annual Access Fee in advance of the anniversary of the Effective Date for the Access
to be provided in the subsequent year.
This Agreement will be
governed by and shall be construed in accordance with the substantive laws in
force: (a) in the courts of Australia, if a licence is obtained when you are in
Australia; or (b) in New Zealand, if a licence is obtained when you are in New
Zealand, (c) England, if a licence is purchased when you are in any other jurisdiction
not described above. The respective courts of Australia, when Australian law
applies, New Zealand, when New Zealand law applies and the competent courts of
England & Wales, when the law of England & Wales applies, shall submit
to the exclusive jurisdiction over all disputes relating to this Agreement.
6A.
WARRANTY.
6A.1 K2MS warrants that
the Product does not infringe the industrial or intellectual property rights of
any person and that acts done by the Licensee in performance of its rights and
obligations under this Agreement in relation to a Product, do not infringe the
Intellectual Property Rights of any person.
6A.2 K2MS at all times
indemnifies the Licensee and its respective officers, employees and agents (in
this clause 6A.2 referred to as "those indemnified") from and against
any loss (including reasonable legal costs and expenses on a solicitor and own
client basis) or liability incurred by any of those indemnified arising from
any suit, action or proceeding by any person against any of those indemnified
where such loss or liability arose out of an infringement, or an alleged
infringement, of the intellectual property rights of any person, which occurred
by reason of an act done by the Licensee in performance of its rights and
obligations under this Agreement in relation to the Product or this Agreement.
7.1 The Licensed Product
is complex computer software. Product performance may vary depending upon
hardware platform and software interactions. Licensee therefore accepts the
responsibility of satisfying itself that the Product is suitable for use within
its own environment.
7.2 The function of the
Product is limited to the provision of advice that may or may not be accepted
by clinicians. It is the Product users’ full and exclusive responsibility to
determine whether or not to accept such advice and whether to take any specific
action as a result, within the context of the full clinical environment.
7.3 K2MS warrants that
for a period of ninety (90) days following the Effective Date the Product will
materially conform to K2MS’s then current operational specifications. The
foregoing warranties cover only problems reported to K2MS during the warranty
period. Except as determined by applicable law and subject to clause 6A any
liability of K2MS with respect to the software or the performance thereof or
defects therein under any warranty, negligence, strict liability or other
theory will be limited exclusively to Product replacement or, if K2MS
determines, in its sole discretion, that replacement is inadequate as a remedy
or impractical, to refund of the Licence fees paid by the Licensee and
termination of the Licence.
7.4 To the maximum
extent permitted by applicable law, K2MS, its suppliers, distributors and resellers
disclaim all other warranties, expressed or implied, including, but not limited
to, implied warranties of merchantability and fitness for a particular purpose,
with regard to the Product.
Except as determined by
applicable law in no event will K2MS its parents or subsidiaries or any of the
licensors, directors, officers, employees or affiliates of any of the foregoing
be liable for any consequential, incidental, indirect, or special damages,
loss, injury, death or other consequences including the corruption or loss of
any data arising from the use of the Product in any way.
K2MS agrees to use the
information supplied by the licensee in accordance with the UK Data Protection
Act 1998, Commonwealth of Australia Privacy Act, 1988 and the New Zealand
Privacy Act, 1993 and only for the purpose of providing the agreed reports back
to the Licensee. K2MS will not hold the
records for longer than necessary and will not share them with another party without
prior approval from the Licensee. K2MS will not process or use the records in
any other way and for any other purpose than to create and provide the agreed
reports to the Licensee.
K2MS entire liability
and the Licensee's exclusive remedy shall not exceed the Licence fees paid for
the Product.
2. The Licensee’s rights
to access the K2MS Perinatal Training Programme is limited to the employees and/ or students of
the Licensee.
3.
Support - the Licensee’s right to receive Product support will include at least
the following: