Noted Limited (referred to in this agreement as we, us and our) has developed proprietary software called Noted. Noted is an electronic medical records software. Noted is made available to users as a service via the internet.
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.
Commencement of Subscription Period:
Your use is subject to payment of the subscription fee for the Service.
Provision of Service
Subject to these Terms, 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.
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.
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).
No Other Use:
not use the Service for any purpose other than the Permitted Purpose;
Third party information:
ensure you have informed patient/third party consent for the inputting and storage of all data and other information you store using the Service;
Log-in 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 or and password, so that we may reset your password;
not permit anyone other than you to access or use the Service without our prior written consent;
comply with our reasonable instructions relating to access to, and use of, the Service;
comply with all applicable laws when accessing and using the Service;
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;
Security and Integrity:
not attempt to undermine the security or integrity of our computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems and networks;
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;
not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access;
not transmit, or input into the Service, any:
- files that may damage any other person's computing devices or software;
- content that may be offensive; or
- material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you or the relevant Registered User do not have the right to use);
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
not reverse assemble or decompile the whole or any part of the Service or any computer programs used to deliver the Service.
Care, Skill and Diligence:
We will, in providing the Service and any other services under this agreement, act with due care, skill and diligence.
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.
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.
Your access to the Data is contingent on full payment of any fees and charges payable when due.
Sharing Your Data:
Subject to clause 6.3 below, we will not disclose or share your Data held in the Service except:
- where we are required by law to do so;
- to our service providers involved in providing the Services or as otherwise reasonably required to provide the Service to you; or
- where you have requested that we provide, or consented to us providing, your Data to a third party.
Anonymised Use of Data:
We may, ourselves or in association with third parties, use your Data in any aggregated or comparative manner, but only on an anonymous basis.
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.
Use of Data:
You consent to the collection, transfer, manipulation, storage, disclosure and other uses of your information for the purposes of delivering the Service.
Where the use of the Service by you requires the use, disclosure or storage of Personal Information, you must ensure that all persons to whom such Personal Information relates have given their consent to the use, disclosure and storage of their Personal Information by or on behalf of us for the purposes of this agreement. We will only use or disclose such Personal Information for the purposes of this agreement.
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.
Intellectual Property Ownership
We (or our licensors) own all Intellectual Property in or relating to the Service. We will also own any new Intellectual Property developed by or on behalf of us in course of providing, supporting or maintaining the Service.
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 relating to the Service, such Intellectual Property 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.
Liability and Disclaimers
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:
- we do not warrant that the 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
- all warranties of fitness for purpose and non-infringement are excluded.
You must satisfy yourself as to the adequacy, appropriateness and compatibility of the Service for your requirements.
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.
Back-stop Liability Provisions:
If, notwithstanding clauses 8.1, 8.2 and 8.3, we are liable to you under or in connection with this agreement then, to the fullest extent permitted by applicable law:
- we will have no liability to you in respect of any:
- indirect, consequential or special Losses suffered or incurred by you;
- loss of data, profits, revenue, business or goodwill; or
- Losses suffered or incurred by you, to the extent to which these result from any act or omission by you or your Registered Users (including any breach of this agreement);
Suspension of Access to Service:
We may suspend your ability to take notes using the Service if:
- your 30 Day Trial Period has expired, you have not upgraded to a Paid Subscription, and it is within 120 days of the Commencement Date
- any fees or charges payable by or on your behalf under this agreement are 10 Business Days or more overdue for payment; or
- 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 5 Business Days of receiving a notice from us specifying the relevant non-payment or breach and advising our intention to suspend access to the Service.
Amendments Proposed via Service:
We may from time to time request that you accept certain amendments to this agreement 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.
Governing Law and Jurisdiction:
These Terms 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.
Definitions And Interpretation
In this agreement, unless the context indicates otherwise:
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;
Intellectual Property 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;
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 Noted EMR via the internet and all related activities performed by us as described in this agreement;
Specifications means the specifications published by us or made available on our website (or any replacement URL) describing the features and functionality of the Service, as updated from time to time;
Subscription Period means the period commencing on the Commencement Date until termination, provided all fees payable to you are made;
Trial Period means a 30 day period from the Commencement Date; and
Trial Subscription means a free subscription to the Service for the Trial Period.