1.1 Service: Noted Limited (referred to in this agreement as we, us, our and Noted) 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.
1.3EU and US users: By your acceptance of, and agreement to be bound by these Terms, you also agree that you are party to and bound by:(a) For EU users, Schedule 2; and
(b) For U.S users, Schedule 3.
2.1 Commencement of Subscription Period: Your access to and 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.
3.1 Service: Subject to this agreement, we will provide the Service to you during the Subscription Period. You acknowledge that:
(a) we do not provide you with internet access or any computer equipment or software required to access the Service; and
(b) 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 3.4(b), 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.
4.1 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.
5.1 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 firstname.lastname@example.org, or contact us via our Help and Support page.
6.1 Access to and use of all Personal Information in connection with this agreement is governed by this agreement, which shall include:
(a) if you are an EU user of the Service, schedule 2 to these Terms; or
(b) if you are a US user of the Service, schedule 3 to these Terms.
6.2 We collect and process your Personal Information and the Personal Information of your Users when you (or your Users, as applicable) access or use the Service. In order to provide you with the Service (and improve on it), we may also collect certain information about the performance of the Service and the Noted System and your (and your Users’) use of the Service and Noted System.
6.3 We may access, process and/or disclose Personal Information in order to: (i) provide you with the Service; (ii) analyse and monitor use of the Service; (iii) comply with the law or legal proceedings served on us (including any notification and reporting obligations and any access directions, imposed on us by Government agency); (iv) enforce and investigate potential breaches by you of the agreement or any other unauthorised use of the Service; (v) protect our rights, property, or the safety of our employees, customers or the public; and (vi) for any other purpose we specifically tell you about or that you have otherwise authorised. By agreeing to this agreement, you also consent to the way we access process and/or disclose your (and, if applicable, your Users’) personal information.
6.4 We may also access and process Personal Information of users in order to inform users of any products, software, services or information that we believe such users may be interested in.
6.5 We work with third party service providers who provide various services for us in connection with the Service (including, hosting and maintenance services). These third parties may have access to, or process, Personal Information as part of providing those services for us. We limit the Personal Information provided to these service providers to that which is reasonably necessary for them to perform their functions, and our contracts with them require them to maintain the confidentiality of such information.
6.6 We utilise the services of overseas entities in Australia and Germany to provide us with hosting and maintenance services. Consequently, we may transfer Personal Information to parties located in these other countries. Although we will endeavour to ensure that your Personal Information is treated securely and in accordance with this agreement as well as applicable data protection laws, you acknowledge that some of these countries may not have an equivalent level of data protection laws as those in New Zealand.
6.7 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. If you would like to ask for a copy of your personal information, or have it corrected or deleted from our records, please contact us at https://www.noted.com/privacy-statement.
6.8 You must comply with all applicable data privacy laws in connection with your collection and use of any Personal Information of any person. You will not (and, if applicable, will ensure your Users do not) use the Services: (i) to collect Personal Information about third parties other than as expressly provided for in this Agreement, including without limitation, e-mail addresses; or (ii) in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them).
6.9 You warrant that you have obtained any necessary consents and authorisations from individuals (including your Users) for the collection, storage, disclosure and use of all data and other information (including personal information) obtained from and/or relating to them which you store using the Service.
7.1 Our acknowledgements: It is acknowledged and agreed by us that:
(a) all of your Data, including any Data: (i) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of you or any of your Users for processing by or through the Service; or (ii) collected, downloaded, or otherwise received you or the Service for you or any of your Users, will be owned exclusively by you (or your Users, as applicable) and all rights not expressly granted to us in this agreement are reserved to you or your users (as applicable).
(b) We will not use Data for any purpose other than as specified in this agreement, and otherwise as required to comply with our obligations under this agreement and applicable laws.
(c) Data will not be disclosed, sold, assigned, leased or otherwise disposed of to third parties, except as expressly provided for in this agreement.
(d) If you request, upon reasonable notice to us, we will provide you with the latest list of Supplier’s personnel that have access to Data.
7.2 Your acknowledgements: You acknowledge and agree that:
(a) 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 this agreement.
(b) 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 note that the internet is inherently insecure, and 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;
(c) You consent to the collection, transfer, manipulation, storage, disclosure and other uses of your Data for the purposes of delivering the Service and as otherwise expressly provided for in this agreement.
(d) 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.
(e) We are not liable, in any circumstances, for breaches of the applicable laws caused by you.
7.3 Data security: We are committed to protecting the security of your Data. We have implemented and will maintain and follow appropriate technical and organizational measures intended to protect Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction. Our data security measures are summarised in schedule 1.
7.4 Anonymous Data: Solely as necessary to provide the Service to you, including as necessary to ensure that the Service incorporates all features and capabilities required to provide the Service in accordance with this agreement, you grant to us a non-exclusive royalty-free worldwide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Data to derive anonymous statistical and usage data, and data about the functionality of the Service and the Noted System, provided such data cannot be used to identify you or any of your Users (Anonymous Data).
7.5 Aggregated Data: Solely as necessary to provide the Service to you, including as necessary to ensure that the Service incorporates all features and capabilities required to provide the Service in accordance with this agreement, we may adapt or modify Anonymous Data or combine Anonymous Data with or into other similar data and information available, derived or obtained from other subscribers, licensees, users, or otherwise (when so adapted, modified, combined or incorporated, referred to as Aggregate Data).
7.6 Further rights: We may also use Anonymous Data and Aggregate Data to enable us to inform you of any products, software, services or information that we believe you may be interested in.
7.7 International transfer of Data: We may store Data in servers of our service providers, which may be located in a different country to us, and may access that Data in either New Zealand, Australia, Germany or the location of any of our Affiliated Companies from time to time.
7.8 Indemnity: You indemnity us against any liability, claims and costs (including the actual legal fees charged by our solicitors) arising from any claim by a third party that our possession or use of any Data in accordance with its rights under this agreement:
(a) infringes a third party’s Intellectual Property Rights or privacy rights;
(b) is defamatory, objectionable, obscene or harassing;
(c) is unlawful in any way; or
(d) will otherwise result in us being in breach of this agreement.
(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.
8.2 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.
8.3 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 8.3(a) and 8.3(b).
8.4 Exclusions: The obligation of confidentiality in clause 8.3(a) 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 the agreement;
(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 8.
9.1 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;
we do not warrant that the Services will meet your requirements or that it they will be suitable for any particular purpose; and
(b) all warranties of fitness for purpose and non-infringement are excluded.
9.2 Consumer Guarantees: You agree and represent that you are acquiring the Service, and accepting the agreement, 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 9.2 applies.
9.3 Adequacy: You must satisfy yourself as to the adequacy, appropriateness and compatibility of the Service for your requirements.
9.4 No Liability: To the maximum extent permitted by law and unless expressly provided otherwise in schedule 2 or 3, 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.
9.5 Back-stop Liability Provisions: If, notwithstanding clauses 9.1 to 9.4, we are liable to you under or in connection with this agreement, 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.
9.6 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.
10.1 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.
10.3 Reactivation: Where 10.2 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.
10.4 Effect of termination or expiry:
(a) Termination or expiry of this agreement does not affect either party’s rights or obligations that accrued before that termination.
(b) On termination or expiry 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.
10.5 No refund: 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.
10.6 Survival: Clauses which, by their nature, are intended to survive termination of this agreement continue in force, including clauses 6 (Privacy), 8 (Intellectual Property and Confidentiality) and clause 9 (Liability). This includes clauses in the schedules, as applicable.
11.1 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 2 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.
12.1 Governing Law and Jurisdiction: These Terms, save for the terms in schedules 2 and 3, 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 2 and 3 (and their annexes) shall be governed by the laws set out in the relevant schedule.
12.2 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the agreement to the extent caused by Force Majeure.
12.3 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.
12.4 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.
12.6 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.
12.7 Relationship: The relationship between the parties under this agreement is that of customer and service provider and nothing expressed or implied in this agreement constitutes either party or their personnel as the partner, employee or officer of, or as a joint venturer with, the other party
12.8 Waiver: No waiver of any breach, or failure to enforce any provision, of this agreement at any time by either party will in any way affect, limit or waive that party's right to subsequently require strict compliance with this agreement.
12.9 Costs: Each party shall cover its own costs incurred by it in connection with the negotiation, and execution of this agreement.
12.10 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.
13.1 Definitions: In this agreement, unless the context indicates otherwise:
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;
Commencement Date means the date that you commence using the Service;
EU user means users subject to EU law or otherwise based in the EU.
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, know-how 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 2020;
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, if you are an Organisation, 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.
13.2 Terms: Save for the terms in schedules 2 and 3, if these Terms are inconsistent in any respect with the applicable Letter of Agreement, the Letter of Agreement prevails. The terms of schedules 2 and 3 (as applicable) shall prevail over any inconsistent terms.