1.1 Service: Noted Limited (referred to in this agreement as we, us and our) has developed the Noted System. The Noted System is a health software system. The Noted System is made available to users as a service via the internet, called "the Service" in this agreement.
1.2 Application of terms: This agreement sets out the basis on which we will provide and support, and you (as a user) may access and use, the Service.
1.3.1 For EU users, Schedule 1; and
1.3.2 For U.S users, Schedule 2.
2.1 Commencement of subscription period: Your use of the Service is subject to payment of the Fee by you or by someone else on your behalf, such as an organisation of which you are a member that has an agreement for the Service with us covering its members (the Organisation). The subscription fee that forms part of the Fee is payable monthly in advance and is calculated based on the number of Users. Unless we deduct the Fee from your account or it is paid by the Organisation, you must pay the Fee by the 20th of the month following the date of invoice and electronically in cleared funds without any set-off or deduction.
3. Provision of Service
3.1 Service: Subject to this agreement, we will provide the Service to you during the Subscription Period. You acknowledge that:
- we do not provide you with internet access or any computer equipment or software required to access the Service; and
- we may change the Service from time to time to provide bug fixes and/or new, replacement or improved features or functionality.
3.2 Optional services: We may also from time to time offer optional services relating to the Service, such as special purpose software applications or reports. You may request any such services by contacting us. We will be under no obligation to provide such services until we have provided notice confirming our acceptance of your request.
3.3 Grant of rights: Subject to this agreement, we grant you a non-exclusive, non-transferable, non-sub-licensable right to use the Service during the Subscription Period solely in connection with your lawful internal business purposes (Permitted Purpose).
3.4 Additional Fees: You acknowledge that we may charge additional fees if:
(a) as part of the ordinary development of its product, we add further functionality to the Noted System or
(b) at your or the Organisation’s request, we develop additional functionality that is outside our planned product development and is not applicable to our other clients.
3.5 Reasonable Price: Where we intend to charge an additional fee under clause 3.4b, the parties, or we and the Organisation as the case may be, will enter into good faith negotiations to determine a reasonable price for the additional functionality.
3.6 Collaboration: You agree to work collaboratively with us to, among other things, provide us with data and feedback about the Service and the Noted System in a timely manner.
4. Your Responsibilities
4.1 No Other Use: not use the Service for any purpose other than the permitted Purpose;
4.2 No resale: not resell or make available the Service to any third party, or otherwise commercially exploit the Service, without our prior written consent;
4.4 Login and Password: keep your log-in name and password secure and secret, and notify us immediately if you become aware of any unauthorised person accessing the service using your log-in name and password;
4.5 Access: not permit anyone other than you to access or use the Service without our prior written consent;
4.6 Instructions: comply with our reasonable instructions relating to access to, and use of, the Service;
4.7 Laws: comply with all applicable laws when accessing and using the Service, including but not limited to all applicable laws relating to confidentiality and privacy;
4.8 Dealings: not sub-license, assign, transfer, lease, rent, distribute or resell the Service, or any rights to access or use the Service, to any other person without our prior written consent;
4.9 Security and Integrity: not attempt to undermine the security or integrity of our computing systems or networks (including the Noted System) or, where the Service is hosted by a third party, that third party's computing systems and networks;
4.10 Impairment: not use, or misuse, the Service in any way which may impair the functionality of the Service, or other systems used to deliver the Service or impair the ability of any other user to use the Service;
4.11 Unauthorised Access: not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access;
4.12 Harmful/Offensive/Illegal Content: not transmit, or input into the Service, any:
(a) files that may damage any other person's computing devices or software;
(b) content that may be offensive; or
(c) material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you or the relevant User do not have the right to use);
4.13 Copy or Modify etc: not, except as and to the extent permitted by law, copy, reproduce, translate, adapt, modify or create derivative works of the Service or any computer programs used to deliver the Service by any means or in any form without our prior written consent; and
4.14 Reverse Engineering: not reverse assemble or decompile the whole or any part of the Service or any computer programs used to deliver the Service.
5. Our Responsibilities
5.1 Care, Skill and Diligence: We will, in providing the Service and any other services under this agreement, act with reasonable care, skill and diligence.
5.2 Service Availability: We will use reasonable endeavours to ensure that the Service is available and providing (in all material respects) the functionality described in the Specifications at all times other than when we need to suspend access to the Service in order to carry out any software upgrades or other maintenance. If for any reason we have to interrupt the Service for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity. We do not guarantee that your access to or use of, the Service will be uninterrupted, error or virus free.
5.3 Support: In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, email us at email@example.com, or contact us via our Help and Support page.
6.1 This clause 6 does not apply to EU users.
6.2 Data Access: Subject to your rights under applicable laws, your right to edit the Data is contingent on full payment of any Fees payable when due. Your right to read-only access to the Data will be unaffected, subject to deletion of the Data under clauses 6.7 or 9.
6.3 Sharing Your Data: Subject to clause 7 below, we will not disclose or share your Data held in the Service except:
(a) where we are required by law to do so;
(b) to our service providers involved in providing the Service or as otherwise reasonably required to provide the Service to you; or
(c) where you have requested that we provide, or consented to us providing, your Data to a third party.
6.4 Data breaches: We are not liable, in any circumstances, for breaches of the applicable laws caused by you.
6.5 Data Security: While we adhere to best practice policies and procedures to keep your Data secure and confidential and have entered into appropriate arrangements requiring our service providers to keep your Data secure and confidential, we cannot guarantee that there will never be any unauthorised access to, or loss of, your Data. We expressly exclude liability for any loss of Data no matter how caused.
6.6 Use of Data: You consent to the collection, transfer, manipulation, storage, disclosure and other uses of your Data for the purposes of delivering the Service. We may store the Data in New Zealand and Australia and may access the Data from anywhere in the world.
6.7 Personal Information: We collect personal information about you for the purposes of providing the Service and all related purposes relating to this agreement. You have the right to ask for a copy of any personal information we hold about you, and to ask for it to be corrected if you think it is wrong.
6.8 Trial Subscription: Data input into the Service during the Trial Subscription will be deleted if you fail to upgrade to a Paid Subscription within 120 days of the Commencement Date.
7. Intellectual Property and Confidentiality
(a) We (or our licensors) own all Intellectual Property Rights in or relating to the Service and the Noted System. We will also own any new Intellectual Property Rights in anything developed by or on behalf of us in the course of providing, supporting or maintaining the Service as such rights arise.
(b) As between you and us, you own the Data.
7.2 Contributions or Suggestions: In the course of your use, you may make contributions or suggestions relating to the Service. To the extent that any such suggestions or contributions result in the creation of new Intellectual Property Rights relating to the Service, such Intellectual Property Rights will be owned by us. If requested, you agree to sign such documents as might be requested to assign such Intellectual Property Rights to us.
7.3 Confidentiality: Each party must, unless it has the prior written consent of the other party:
(a) keep confidential at all times the Confidential Information of the other party;
(b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
(c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 7.3a and b.
7.4 The obligation of confidentiality in clause 7.3a does not apply to any disclosure or use of Confidential Information:
(a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
(b) as required by law (including under the rules of any stock exchange);
(c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
(d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
(e) by us, if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
8.1 No Warranties: The provision of, access to, and use of, the Services is on an "as is" basis and at your own risk. To the extent permitted by law, we disclaim and exclude all representations, warranties and conditions, whether express, implied or statutory, relating to the Service and any other services we supply to you under this agreement. Without limiting the foregoing:
(a) we do not warrant that the access to or use of the Service will be uninterrupted or error free;
(b) we do not warrant that the Services will meet your requirements or that it they will be suitable for any particular purpose; and
(c) all warranties of fitness for purpose and non-infringement are excluded.
8.2 Consumer Guarantees: You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade and that the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms. You and we agree it is fair and reasonable that this clause 8.2 applies.
8.3 Adequacy: You must satisfy yourself as to the adequacy, appropriateness and compatibility of the Service for your requirements.
8.4 No Liability: To the maximum extent permitted by law, we will have no liability to you (or any other person) under or in connection with this agreement (whether in contract, tort or otherwise), for any Losses resulting, directly or indirectly, from any use of, or reliance on, the Service.
8.5 Back-stop Liability Provisions: If, notwithstanding clauses 8.1, 8.2, 8.3 and 8.4, we are liable to you under or in connection with this agreement or the Service or the Data then, to the fullest extent permitted by applicable law:
(a) we will have no liability to you in respect of any:
(i) indirect, consequential or special Losses suffered or incurred by you;
(ii) loss of data, profits, revenue, business or goodwill; or
(iii) Losses suffered or incurred by you, to the extent to which these result from any act or omission by you or your Users (including any breach of this agreement); and
(b) our maximum aggregate liability under or in connection with this agreement, the Data or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to 12 months’ subscription fees.
8.6 Indemnity: you agree to indemnify us from and against any claim, cost or liability, including reasonable legal fees, arising directly or indirectly out of the use of the Service by you or any person for whom you are responsible in law.
9. Cancellation, Suspension, and Termination
9.1 Cancellation by you: You may cancel your Subscription at any time by giving us notice in accordance with the process outlined via the Service. If you cancel your Subscription before the end of a month for which you have already paid, the Service will end immediately and you will not be charged again.
(a) your Trial Period has expired, you have not upgraded to a Paid Subscription, and it is within 120 days of the Commencement Date;
(b) you have cancelled your Subscription;
(c) any fees or charges payable by or on your behalf under this agreement are 10 Business Days or more overdue for payment; or
(d) you have committed a material breach of this agreement, and you have failed to pay those fees or charges in full or remedy that material breach to our satisfaction within 10 Business Days of receiving a notice from us specifying the relevant non-payment or breach and advising our intention to suspend or terminate access to the Service.
9.3 Where 9.2 applies, we will suspend the Service for up to 90 days. You may reactive your Subscription, subject to our agreement to do so, during this time. During the suspension of the Service, you will not have editable access to your Data, but you will be able to export your Data in a common electronic form, such as JSON. We do not warrant that the format of the Data will be compatible with any software. At the end of 90 days, unless you have reactivated your Subscription, your Data will be deleted and will not be able to be recovered.
9.4 Termination of this agreement does not affect either party’s rights and obligations that accrued before that termination.
9.5 On termination of this agreement, unless your fees have been paid by the Organisation, you must pay all Fees for the provision of the Service prior to that termination.
9.6 We are not responsible for any loss you suffer, and no compensation is payable by us to you, as a result of the suspension and/or termination of this agreement for whatever reason, and you will not be entitled to a refund of any Fees that you or the Organisation have already paid.
9.7 Survival: Clauses which, by their nature, are intended to survive termination of this agreement continue in force, including clause 7 (Intellectual Property and Confidentiality) and clause 8 (Liability). This includes clauses in the schedules, as applicable.
10.1 Amendments Proposed via Service: We may from time to time request that you accept certain amendments to this agreement (save for the provisions of Schedule 1 which may not be modified as set out in that Schedule) when you log-in to use the Service. Any such amendments will be effective if you accept them in the manner provided for acceptance. If you do not accept any such amendments, you will not be able to use the Service for the time being and you must contact us, in which case we will discuss the amendments with you and, if you will not agree to the amendments, either withdraw the amendments, agree revised amendments with you, or allow you to terminate this agreement.
11.1 Governing Law and Jurisdiction: These Terms, save for the terms in Schedule 1 and 2, are governed by the laws of New Zealand. You and we submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to them. The terms in Schedules 1 and 2 (and their annexes) shall be governed by the laws set out in that Schedule.
11.2 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
11. 3 Dispute Resolution: The parties agree to attempt to amicably resolve any dispute concerning any rights or obligations of either of them under this agreement by doing the following:
(a) the party claiming a dispute has arisen will give written notice to the other specifying the nature and particulars of the dispute and will give a reasonable period of time for the other party to remedy the dispute; and
(b) the parties will endeavour, in good faith, to amicably negotiate and resolve the dispute between themselves.
11.4 Termination: If the parties fail to amicably resolve any such dispute within a reasonable period after the issuance of written notice, the party who issued the notice is entitled to terminate the agreement by giving written notice to the other party.
11.5 Entire Agreement: This agreement (including any Schedules hereto) together with any Letter of Agreement, records the entire understanding and agreement of the parties relating to the matters dealt with in this agreement. This agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.
11.6 Assignment: Neither party may transfer, sell, or assign this agreement, or any of its rights, obligations or duties under, without the prior written consent of the other party, such consent not to be unreasonably withheld.
11.7 Further Assurances: Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of this agreement.
12. Definitions and Interpretation
12.1 Definitions: In this agreement, unless the context indicates otherwise:
agreement means these Terms (including the Schedules hereto) together with any Letter of Agreement;
BAA means the Business Associate Agreement attached hereto as Schedule 2;
Business Day means Monday to Friday (New Zealand time) other than any public holiday observed in Wellington, New Zealand;
Data means any data input by you into the Service and any information or data the Service generates for you based solely on the input of such data;
Data Processing Agreement means the terms included as Schedule 1;
Commencement Date means the date that you commence using the Service;
EU user means users subject to EU law.
Fees means the fees set out on our website or in the applicable Letter of Agreement;
Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care or a lack of funds for any reason.
including and similar words do not imply any limitation;
Intellectual Property Rights means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, knowhow and trade secrets, and operating manuals and training manuals;
Losses includes any loss, damage, liability, damages, cost or expense, including legal costs on a solicitor and own client basis;
Noted System means our electronic medical record system called Noted;
Organisation has the meaning set out in clause 2.1.
Paid Subscription means a subscription to the Service for a monthly fee;
Period means the duration of this agreement as selected by you on registering for the Service or set out in the applicable Letter of Agreement;
Permitted Purpose is defined in clause 3.3;
Personal Information has the meaning to that term in the Privacy Act 1993;
Service means the service involving the provision of access to the Noted System via the internet and all related activities performed by us as described on our website or in the applicable Letter of Agreement;
Specifications means the specifications published by us or made available on our website (or any replacement URL) or set out in the Letter of Agreement describing the features and functionality of the Service, as updated from time to time;
Letter of Agreement means any quote, Letter of Agreement, or services agreement to which these Terms are attached or incorporated by reference;
Subscription Period means the period commencing on the Commencement Date until termination, provided all fees payable in respect of your use of the Service are made;
Trial Period means a 30 day period from the Commencement Date;
Trial Subscription means a free subscription to the Service for the Trial Period;
User means each person registered by you to use the Service;
US user means users subject to US law; and
you means you or the person on whose behalf you are entering into the agreement.