**IMPORTANT – DO NOT DISCARD SOFTWARE LICENCE **
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING MIMS SOFTWARE PACKAGE CONTAINED IN THIS CD ROM. INSTALLING THIS SOFTWARE PACKAGE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, PROMPTLY RETURN THE PACKAGE WITHOUT INSTALLING AND YOUR MONEY WILL BE RENUNDED.
UBM Medica Australia Pty Ltd ("We" or "Us" or "Our") provides the program identified above, which includes the database of information and the operating software contained in this CD ROM (and updated versions thereof) ("Application") and grants you a non-exclusive licence to use the Application in Australia on the terms set out in this Agreement. You assume responsibility for the selection of the Application to achieve your Intended Results and for the installation, use, and results obtained from the Application.
1. TERRITORY
The Application contains information intended for use in Australia only. If you use the Application outside Australia, you do so at your own risk and, to the extent permitted by law, we will have no liability to you or any third party for such use.
2. LICENCE
2.1 You may non-exclusively use the Application at one physically located site for up to three (3) Users solely for your own internal business purposes in Australia. This use includes a copy the Application into any machine readable form for backup purposes in support of your own internal business use of the Application. We may include mechanisms to limit or inhibit copying of the Application. Where you have subscribed for additional users to access the Application, your licence covers usage up to this level.
2.2 To the extent permitted by law, you may not (nor permit any third party or User to): alter, merge, modify or adapt the Application, including disassembling or decompiling the Application (except as, and only to the extent, expressly permitted by law); loan, rent, lease or licence this Application or any copy; transfer the Application, or any copy, in whole or in part in anyway, including disassembling or decompiling, except as expressly provided for in this licence ("the Prohibited Acts"). Information necessary to achieve interoperability and security testing of the Application within the meaning of the Copyright Act 1968 is available from us upon request. If you (or any third party or User) do any of the Prohibited Acts, your licence is automatically terminated.
3. TERM
3.1 Your licence to use the Application in accordance with these terms and conditions lasts for a twelve (12) month period commencing on the date we supply the Application and password to you ("the Term"). Updated CD editions are available from us in April, August and December each year. We will make available on the MIMS website an updated data file for you to download in February, June and October. The frequency of availability of the downloadable update may change as needed. It is your responsibility to download this updated file. Please note that the Term of your licence includes three (3) CD ROM updates of the Application.
3.2 The licence is automatically transferred with the receipt by you of each updated CD version of the Application for the balance of the Term (provided you have paid for that updated version). You must destroy all previous CD versions of the Application (and all copies) when you receive an updated CD version of the Application.
4. TERMINATION
4.1 This licence automatically terminates at the end of the Term; if you have not paid for an updated edition of the Application or you do not order an updated edition of the Application, twenty (20) days after the date we release the next updated edition of the Application; or if you destroy the Application (in which case you must also destroy all copies of the Application in any form; or if you fail to comply with any term of this Agreement.
4.2 In addition, we may terminate this licence without fault by you if we provide you with three (3) months prior notice and if we do terminate this licence without fault by you, our sole liability to you will be to repay to you the relevant fee you paid for the edition of the Application then in your possession less a reasonable amount for your use of the Application. Upon any termination you will destroy all versions of the Application, any copies of the Application and any related documentation.
5. LIMITED WARRANTY
We warrant that, for a period of four (4) months from the date we release each edition of the Application: that edition will substantially conform to the applicable online user documentation; and that the media on which that edition is distributed is free from defects in materials and workmanship under normal use. If the Application does not meet such warranties, to the extent permitted by law, our sole and exclusive liability to you (and your sole remedy) will be (at our option), the replacement of the defective edition or media at no charge, provided you return the item with proof of ownership to UBM Medica Australia Pty Ltd within the four (4) month warranty period (the abovementioned warranty also applies to the updated data file available on the MIMS website which has a similar warranty for two (2) months only). If we are unable to replace the defective edition or media, we will refund the amount you paid for that edition. Except as specifically provided herein, and to the extent permitted by law we make no warranty or representation either express or implied, with respect to the Application, including the quality, performance, merchantability, or fitness for a particular purpose. We do not warrant that the functions contained in the Application will meet your requirements or that the operation of the Application will be uninterrupted or error free. To the extent permitted by law the warranties, conditions, representation, terms and remedies set forth in this Agreement are exclusive and in lieu of all others, oral or written, expressed or implied. No distributor, agent or employee is authorised to make any modification or addition to this warranty.
6. INTELLECTUAL PROPERTY
6.1 All intellectual property rights and other proprietary rights in or related to the Application are and will remain our exclusive property, whether or not specifically recognised or perfected under local applicable law and you must not take any action that jeopardises our proprietary rights. Subject to the licence set out above, no licence, right or interest in any of our trade marks, service marks or trade names is granted to you under this Agreement. If an action is brought against you claiming that the Application infringes the intellectual property rights of a third party, we will, at our own expense, defend or, at our option, settle the action and, subject to this clause, indemnify you against any loss, cost or expense (including reasonable legal fees and expenses on a solicitor client indemnity basis), demand or liability, whether direct or indirect, arising out of any such claim, but only if: (a) you notify us promptly of any infringement, suspected infringement or alleged infringement; (b) we have sole control over the defence of the claim and any negotiation for its settlement or compromise; (c) you make no admission of liability, do not incur any legal expenses in connection with the claim except as would be reasonable in the circumstances, or agree to any compromise or settlement without our prior written consent, and take no other action that is contrary to our interests; and (d) you provide us with all available information and assistance as we may reasonably require in respect of any proceedings.
6.2 If a claim described above has been asserted, we will, at our sole option and expense: (a) procure the right for you to continue using the Application; or (b) replace or modify the Application to eliminate the infringement while providing functionally equivalent performance; or (c) accept the return of the Application and refund to you the amount of the fees actually paid to us for such Application, less a reasonable amount for your use of the Application.
6.3 We will have no obligation to defend and indemnify you for any claims that the Application infringes the intellectual property rights of a third party, to the extent that the claim results from: (a) a correction or modification of the Application not provided by us; (b) use of the Application other than in accordance with the relevant documents or this Agreement; (c) you using an out of date edition of the Application; or (d) the combination of the Application with other products that are not owned by us (other than as contemplated by this Agreement).
6.4 To the full extent permitted by law, the remedies contained in this section constitute your sole and exclusive remedies and our entire liability under this Agreement with respect to infringement of third party intellectual property rights.
7. LIMITATION OF LIABILITY
To the fullest extent allowed under law, and subject to any terms or conditions implied by legislation which cannot be excluded, we exclude all liability for breach of any other warranty or condition of any kind in respect to the Application, and if such exclusion is not permitted by law, our sole liability for breach of such implied warranty or condition will be limited (at our option) to the replacement or repair of the "Application". To the full extent permitted by law, in no event will we be liable for any indirect, consequential or special damages or any loss of profit or goodwill in connection with or arising out of performance of the Application and in no event will our liability to you for any claim or damage arising out of or in connection with this Agreement exceed the amount paid by you for the Application. Because databases are inherently complex and may not be completely free of errors, you are advised to make a backup copy.
8. INDEMNITY FROM YOU
You agree to indemnify, defend and hold us harmless against any claims, liabilities, proceedings, costs, losses, expenses or damages incurred by us in connection with your use of the Application (including, without limitation, any use by you of an out of date edition of the Application or use of the Application outside Australia), breach of this Agreement or any other negligent or wrongful act by you.
9. GENERAL
9.1 You may not assign or transfer this Agreement. You agree to comply with all applicable laws.
9.2 YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
9.3 This agreement is governed by the laws of New South Wales, Australia.
9.4 You acknowledge that you have been provided with the current version of this Agreement by either facsimile transmission or by downloading the Agreement from the MIMS website and that the Agreement is available on each CD ROM of the Application. We reserve the right to update the Agreement from time to time and to make the updated version available on the MIMS website and the next CD ROM you receive in accordance with this Agreement.
10. GST & FEES
10.1 You must pay the Fees for the Licence to Us.
10.2 If We are liable by law for any GST on any Primary Payment, then You must pay to Us the amount of GST.
10.3 You must pay to Us an amount in respect of any GST that We are required to pay under this Licence:
(a) at the same time; and
(b) in the same manner as You are required to pay for the Primary Payment in respect to which the amount of GST relates.
10.4 We must issue to You a Tax Invoice in accordance with the requirements of the law relating to GST.
10.5 If We refund to You any amount under this Licence We must also refund to You an amount in respect of any GST that You have paid in respect of that amount.
11. DICTIONARY
"Application" means this CD ROM, including the database of information and the operating software contained therein, any updated editions of the CD ROM, the database of information and the operating software contained therein provided to you during the Term and any updated data files downloaded by you during the Term from the MIMS website.
"CPU" means a desktop computer.
"Fee" means any fee charged by Us to You for the Application.
"GST" means a goods and services tax, consumption tax, value-added tax, retail turnover tax or a tax of a similar nature.
"Input Tax" means an amount equal to the amount of GST paid or payable for the supply of any thing acquired.
"Intellectual Property Rights" means all right, whether registrable, registered or unregistered in any patent, trade mark, trade name, business name, company name, copyright, registered design or other design right or circuit layout right, or any applications for, or rights to obtain or acquire, any such rights.
"Intended Results" means the use of the Application as a reference product to return information to the user.
"MIMS Website" means www.mims.com.au or any new website notified to you by Us.
"Primary Payment" means any payment by You to Us of any fees or other amount payable by You to Us under This Licence.
"Tax Invoice" means an invoice in the format required by the law and which also shows the amount of the GST payable by Us in respect of the relevant Primary Payment.
"User" means Your employee using the Application.
"We", "Us" or "Our" means UBM Medica Australia Pty Limited (ACN 050 695 157) of Level 2, 1 Chandos Street, St Leonards NSW 2065.
"You" means anyone we have licensed to use the Application.
Should you have any questions concerning this agreement, please write to us at:
CMPMedica Australia Pty Ltd
PO Box 3000
ST LEONARDS
NSW 1590 |
