AMH Small/Medium Business Licence

AUSTRALIAN MEDICINES HANDBOOK (AMH) SMALL/MEDIUM BUSINESS LICENCE AGREEMENT

AMH Online, AMH Children's Dosing Companion Online, AMH Aged Care Companion Online

NOTE:  AS SPECIFIED IN CLAUSE 3.3, PAYMENT BY THE LICENSEE OF THE INVOICE FOR THE PRODUCT SIGNIFIES THE LICENSEE'S AGREEMENT TO THE TERMS AND CONDITIONS HEREIN.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS PLEASE CONTACT AMH WITHIN SEVEN DAYS OF PURCHASE TO REQUEST CANCELLATION OF YOUR LICENCE.

This agreement commences on the date of the Invoice.

BETWEEN:

Australian Medicines Handbook Pty Ltd (ACN 070 003 977) (“the Licensor”)

of Level 13, 33 King William Street, Adelaide, South Australia 5000 Ph: 08 7099 8800 Fax: 08 7099 8899 

Email: amh@amh.net.au

AND:

The party named on the Invoice (“the Licensee”)

INTRODUCTION

A. The Licensor owns, develops and supports certain electronic products and software in respect of medicines registered for use in Australia.

B. AMH Website” means the AMH website ‘www.amh.net.au’ including any online portal used to access the Publications.

App” means AMH application used to access the Publications via the AMH Website or third-party app store services.

Approved Product Information” means information in a product information document that has been provided by the pharmaceutical company responsible for the medicine and has been approved by the Therapeutic Goods Administration.

Authorised Device” means the Device authorised by AMH to access the Product from time to time.

Approved Sites” means the business premises or other nominated location(s) of the Licensee specified on the Invoice. 

Authorised User” means the employee(s), agent(s) or subcontractor(s) of the Licensee authorised by the Licensee to use the Product.

Device” includes desktop computers, laptops, tablets and smartphones. 

EULA” means the AMH End User Licence Agreement.

Intellectual Property Rights” means the rights comprised in any patent, copyright, design, trade mark or similar rights whether at common law or by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know-how, goodwill or confidential information.

Invoice” means an invoice issued by the Licensor (or a third party nominated by the Licensor) for the Product.

Permitted Use” means use by an Authorised User on an Authorised Device for the commercial or business purposes of the Licensee in respect of its business conducted at the Approved Site(s).

Publications” means the current electronic versions of publications produced by the Licensor from time to time, being AMH Online, AMH Children's Dosing Companion Online and AMH Aged Care Companion Online (as purchased by the Licensee).

Product” means any one or more of the Publications and includes the App and the AMH Website. 

Term” means the Initial Term and any Subsequent Term. 

C. The Licensor is to grant to the Licensee a licence to use the Product on the terms of this agreement.

TERMS

PART 1 –PRODUCT LICENCE

1. Licence

1.1 Subject to payment of the Invoice, the Licensor grants to the Licensee, which accepts, a non-exclusive, non-transferrable, revocable licence to access and use the Product and the Licensee may not grant any sub-licences (‘Licence’).

1.2 The Product may only be used for the Permitted Use of the Licensee. 

1.3 Only the Authorised User may access and use the Product at the Approved Site or on an Authorised Device. 

1.4 The Licensee is licensed to access and use the Product for a period of 12 months from the date of payment of the Invoice (‘Initial Term’), after which the period may be extended by the Licensor issuing a further Invoice for the fee applicable at that time for a further term and the Licensee paying such Invoice, in which case the Licence is extended for the period specified in an Invoice and on the terms of this agreement (‘Subsequent Term’). 

2. Terms of Use

2.1 Only the Authorised User may use the Product.

2.2 The Authorised User may only access the Product from the Approved Sites or from an Authorised Device. 

2.3 The Authorised User will be required to accept the terms of the EULA to use the Product.

2.4 The Licensee grants the Licensor or its authorised agent access rights to any Device wherever located or on the Approved Site or any other premises or site occupied by the Licensee to conduct an audit of the Licensee’s use of the Product. If an audit reveals any underpayment of fees due to the Licensor for the audited period, Licensee shall pay the shortfall in fees, interest on all such amounts as set forth in clause 3.2 and the reasonable costs of such audit to the Licensor. 

2.5 The Licensee will not make the Product available for use by any other person or entity that is not an Authorised User.

2.6 Once a Licensee no longer uses the Product for the Permitted Use they must either surrender the Licence or purchase an appropriate licence which permits the particular use of the Product and must do so at the sole discretion of the Licensor.

2.7 The Licensee is not permitted to use the Product outside of Australia and New Zealand.  The warranties in this agreement or the Licensor’s professional indemnity insurance will not extend to use of the Product outside of Australia and New Zealand. 

2.8 The Licensee may access or use the Product only subject to any restrictions specified in clause 6.

2.9 The Licensee may access or use the Product only for its own internal purposes. Without limiting the foregoing, the Licence does not permit use of the Product:

2.9.1 in a manner that would substitute for a licence or purchase of any portion of the Product by a third party; 

2.9.2 for service bureau activities; or

2.9.3 for the purpose of designing, developing, modifying or improving third party software or products. 

2.10 This agreement does not confer any right in the Licensee or any third party to copy, alter, reproduce, adapt or modify, dissemble or reverse engineer the Product, nor any instruction manual.

2.11 The Licensee must keep the Product and any instruction manual in its exclusive possession and must take reasonable steps to prevent the transfer or copying of the Product to or by any third party.

2.12 The Licensee is solely responsible for the use, supervision, management and control of the Product and the Licensee must protect the Product from misuse, damage, destruction or any form of unauthorised use or access.

3. Licence fee

3.1 The Licensee must pay to the Licensor the licence fee (and for the avoidance of doubt any applicable taxes) specified on the Invoice for the Product:

3.1.1 in one payment;

3.1.2 before accessing or using the Product; and

3.1.3 in clear funds without any deduction or setoff.

3.2 The Licensee must pay interest at the rate of 10% per annum on any amount unpaid in default under this agreement.  

3.3 Payment of the licence fee signifies that the Licensee has agreed to the agreement.

PART 2 – MAINTENANCE AND SERVICES

4. Maintenance

4.1 Clause 4 only applies to the current version of the Product as released by AMH from time to time. 

4.2 During the Term, the Licensor agrees to support the Licensee to resolve problems:  

4.2.1 in the use of the Product, except where the problems relate to the Licensee’s hardware or software;

4.2.2 during Monday to Friday, 9.00 am - 5.00 pm (Adelaide time and excluding public holidays in South Australia);

4.2.3 by telephone or by Device-to-Device communication.

4.3 Unauthorised modification of the Product invalidates the obligation of support under this clause 4.

5. Services

5.1 During the Term, the Licensor may provide a full updated copy of the Product to the Licensee from time to time.

5.2 This agreement does not oblige the Licensor to provide to the Licensee any goods or services not now specified, including any:

5.2.1 services to install, test or modify the Product or to migrate data;

5.2.2 training;

5.2.3 support to the Licensee on-site at the Approved Site;

5.2.4 support to the Licensee after the expiry of initial support;

5.2.5 maintenance versions of the Product; or

5.2.6 enhanced versions of the Product, except for AMH content-related upgrades, all of which may be separately negotiated by the parties on terms to be agreed.

PART 3 - GENERAL

6. Prohibitions

6.1 The Licensee (including through any third party) must not and must not allow the Authorised User to do any of the following: 

6.1.1 copy the Product;

6.1.2 modify or create derivative works based upon the Product;

6.1.3 decompile, disassemble, or reverse engineer the Product in whole or in part or otherwise attempt to derive source code or the underlying content, ideas, algorithms, structure or organisation from the Product or any part thereof;

6.1.4 defeat, disable, or circumvent any protection mechanism related to the Product;

6.1.5 sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Product, or, in particular, without limiting the generality of the foregoing, distribute the Product on any media; make the Product accessible to the public or third parties, whether over networks, electronic bulletin boards, websites, or otherwise; or allow any third party to use the Product;

6.1.6 publish or otherwise communicate any review of, or information about, the performance of the Product to any third party without the prior written consent of the Licensor; 

6.1.7 export, re-export, download, or otherwise use the Product in violation of any laws or regulations;

6.1.8 transmit or make available for transmission any part of the Product, or material that is: false or misleading; is defamatory; does not comply with any privacy policy; is obscene, pornographic, or offensive; promotes bigotry, racism, hatred or harm against any individual or group; infringes another’s rights, including any Intellectual Property;

6.1.9 access, tamper with, or use: non-public areas of the AMH Website (including but not limited to user folders not designated as ‘public’ or to which the Licensee has not been given permission to access); Licensor’s computer systems; or the technical delivery systems of the Licensor’s providers;

6.1.10 attempt to probe, scan, or test the vulnerability of any part of the Product or any related system or network or breach any security or authentication measures;

6.1.11 interfere with, or attempt to interfere with, the access of any user, host or network to the AMH Website, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the AMH Website, or plant malware on the Licensor’s computer system, those systems of the Licensor’s providers, or otherwise use the AMH Website; or

6.1.12 use the AMH Website, the Product, content or output data to impersonate or misrepresent its affiliation with any person or entity. 

7. Warranties

7.1 The Licensor warrants to the Licensee that:

7.1.1 The Licensor has the right to grant the Licence to the Licensee;

7.1.2 neither the Product nor the Licence infringes the copyright or other rights of any third party in the country in which the Licensee is licensed to use the Product;

7.2 The Licensor does not warrant the accuracy of the information contained in the Product and does not take responsibility for any loss, damage or injury (including consequential loss or damage) caused (directly or indirectly) to the Licensee or any third party by the Product (including but not limited to as a result of any negligence of the Licensor or its employees, agents or contractors in the preparation of the information contained in the Product).

7.3 The Licensor makes no representation or warranty that the Product is free from defects or computer software viruses.  The Licensor strongly recommends that the Licensee uses the latest operating system software available and installs appropriate anti-virus software on their Authorised Devices, prior to using the Product.  The Licensor does not take any responsibility for any loss or damage (including consequential loss or damage) caused (directly or indirectly) by the presence of defects or computer software viruses in the Product.

7.4 The Licensor does not warrant that the Product will be available at all times or provide continuous or uninterrupted access and accepts no liability for any disruption from whatever cause.

7.5 To the extent that the Licensor agrees to provide support to the Licensee under clause 4, the Licensor does not warrant that all problems are capable of solution.

7.6 To the extent permitted by mandatory operation of law, the Licensor makes no other warranty or representation as to fitness for use or performance or compatibility or otherwise of the Product.

8. Liability

8.1 The Licensee expressly acknowledges and agrees that use of the Product is at the Licensee’s sole risk.  The Licensor does not directly or indirectly practice medicine or dispense medical or pharmaceutical services and assumes no liability for the Product or any results obtained from the use of such information.  The information contained in the Product is not intended in any way to be used as medical or pharmaceutical advice or to replace medical or pharmaceutical advice offered to Licensee by health care professionals familiar with any patient’s condition.  The Licensor recommends that the Licensee consults with a qualified health care provider prior to using the Product.  The Licensee assumes full responsibility for the appropriate use of the Product and agrees to hold the Licensor, and its third party providers, harmless from any and all claims or actions arising from Licensee’s use of the Product.

8.2 To the maximum extent permitted by law, the Licensor’s liability for breach of any implied or express condition or warranty is limited to:  

8.2.1 the supplying of the Product again; or 

8.2.2 if the Licensor so elects, a refund of the licence fee.

8.3 To the maximum extent permitted by law, the Licensor’s maximum liability for damages in connection with the use, reliance or supply of the Product (including as a result of the Licensor’s or the Licensor’s authorised distributors’ negligence or that of the Licensor’s officers, employers, agents or contractors) is limited to the amount paid by the Licensee for the Product during the year in which the cause of action accrued.

9. Indemnity

The Licensee indemnifies the Licensor (including the Licensor's officers, employees, agents and contractors) (“those indemnified”) and holds them harmless against all claims and all costs, liability and expenses (including legal costs) incurred by those indemnified as a result of any use or reliance on the Product including any claims made against those indemnified by any third parties.

10. Acknowledgment

The Licensee acknowledges they have read this agreement as part of the registration, installation or use of the Product and understand that:

10.1 all right, title, and interest in all Intellectual Property Rights (collectively "Rights") in and to the Product and any works created by the Licensor that are derived from or based on the Product vests in the Licensor immediately upon creation and will remain the exclusive property of the Licensor.  To the extent that any rights vest in the Licensee, by this agreement the Licensee immediately assigns all such rights to the Licensor and agrees to do all things reasonably necessary to confirm or register such rights as being the property of the Licensor; 

10.2 except as expressly permitted in this agreement, the Licensee must not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publish, transmit, or otherwise use the Product.  The Licensee must not copy or modify any code used to generate the Product; 

10.3 the content of the Product may not be consistent with Approved Product Information, or with other regulatory sources;

10.4 the Product should be used in conjunction with the most recent information included with each drug or therapeutic agent by the manufacturer;

10.5 the dynamic nature of medical information requires the Licensee (and the Authorised User) to exercise in all cases independent professional judgment and understand the patient’s clinical situation when referring, prescribing or providing information based on or from the Product; and

10.6 unless expressly stated in the Product the Licensor does not recommend or prescribe the use of one product over another.

11. Governing law

This contract is governed by the laws in South Australia.

12. Termination and suspension

The Licensor may terminate or suspend the Licence at any time on written notice to the Licensee.  

The Licensee may terminate the Licence on written notice to the Licensor and acknowledges that no portion of the licence fee paid in advance for the Licence will be returned to the Licensee on termination. 

13. Confidentiality

13.1 The Licensee must maintain the confidentiality of and not disclose the terms of this agreement or any trade secret, confidential information or commercially sensitive information about the Licensor (whether in connection with this agreement or otherwise), other than when required by law or when the information falls into the public domain. 

13.2 This clause 13 will survive the expiry or termination of this agreement for a period of five years.

14. General

14.1 Any provision of this agreement must be read down to any extent necessary to be valid. If that is not possible, it must be severed. All other provisions of this agreement are unaffected. 

14.2 A provision of this agreement must not be construed to the disadvantage of a party because that party was responsible for including that provision and/or that provision benefits that party.

14.3 A single or partial exercise or waiver of a right relating to this agreement will not prevent any other exercise of that right or the exercise of any other right. 

14.4 This agreement may not be assigned by the Licensee without the prior written consent of the Licensor. 

14.5 The EULA forms part of this agreement. 

 

AMH Small/Medium Business Licence Version July 2018