Evaluation Software Licence Agreement for Praktika – Online Dental Management Software
Lizard Software Pty Ltd ("LSPL") is providing you ("User") a licence, permitting User to access and use, solely for evaluation purposes and subject to the terms of this Software Licence Agreement (the "Agreement"), the following: (i) software identified as Praktika ("Software"); and (ii) services relating to User's access and usage of the Software, including the access to the Software web sites and their content ("Services").
This is a legal agreement between you and LSPL, which governs the access to and use of the Software and related Services. By clicking on the "I agree" button (or signing this Agreement) below you acknowledge that you have read and understand the following terms and you agree to be bound by and become a party to this agreement, and if you are accepting it on behalf of an organisation, that you are authorised to bind such organisation to the terms of this Agreement. If you do not agree to all of the terms of this Agreement, LSPL is unwilling to grant you this licence and you should click on the "I do not agree" button and not seek access to the Software and Services.
1. LICENCE GRANT.
Subject to the terms of this Agreement, LSPL grants User a personal, non-exclusive, non-transferable licence to access and use the Software and Services for User's internal business purposes only, without the right to sub-licence such rights, provided User unconditionally agrees to access and use the Software and Services solely for evaluation purposes and in accordance with this Agreement ("Licence"). Under the Licence, User may print out, or otherwise make, printed copies ("Copies") of the reports, numeric results, and other information or materials generated from User's access and use of the Software and Services for evaluation purposes only. Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to User by LSPL, in accordance with Section 14 of this Agreement, shall be considered Software and Services subject to this Agreement. LSPL may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to User or any liability to LSPL or any LSPL Party (as defined in Section 2).
This Software and Services are provided for evaluation purposes only and not for commercial business application. As such, (a) the Software and Services are provided on an "as-is" and "as available" basis. To the maximum extent permitted by applicable law, LSPL and its directors, officers and agents ("LSPL parties") disclaim all warranties of any kind, express, implied or statutory, regarding the software and services or otherwise relating to this agreement, including warranties of fitness for a particular purpose, merchantability, non-infringement and accuracy:
- without limiting the foregoing, neither LSPL nor any LSPL party warrants that the software and services are or will be accurate, complete, uninterrupted, without error or other program limitations;
- User assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of LSPL's gross negligence or wilful misconduct;
- each of LSPL and the LSPL parties disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of the reports, data, scores, results or other information obtained, generated or otherwise received by user from accessing and/or using the Software and/or Services or otherwise resulting from this agreement, and
- use of the Software, Services and reports is entirely at User's own risk and LSPL and each of LSPL parties shall have no liability or responsibility therefore
3. LIMITATIONS ON LIABILITY.
Neither party shall be liable for any indirect, special, incidental, consequential or punitive damages of any type arising out of or in connection with this agreement, the software and/or services, whether or not LSPL and its licensors have been advised of the possibility of such damages and whether based upon breach of contract or tort (including negligence). LSPL and the LSPL parties shall have no liability for any damages resulting from alteration, destruction or loss of any data or information input, generated or obtained from access and/or use of the Software and Services, including any reports or numeric results, whether or not LSPL and the LSPL parties have been advised of the possibility of such damages. The limitations of damages and liabilities set forth in this agreement are fundamental elements of the basis of the deal between LSPL and User. If User is not satisfied with the Software and Services, the entire liability of LSPL and the LSPL parties, and User's exclusive remedy, shall be to immediately stop accessing and using the Software.
4. USER NAME AND PASSWORD.
5. USER REPRESENTATIONS AND WARRANTIES.
User represents, warrants, and covenants to LSPL that: (i) this Agreement shall be binding on User; (ii) unless User is an individual, User represents and warrants that this Agreement was executed by an authorised signatory of User with the authority to enter into binding agreements on behalf of User; and, (iii) User shall abide by all applicable Australian local, state, national as well as international laws and regulations.
6. PROPRIETARY RIGHTS.
The Software and Services are protected by applicable Australian and international laws and treaties, including copyright laws and treaty provisions. LSPL or its licensors own all rights, title and interest in and to the Software and Services, including trade secrets, know-how, moral rights, patents, copyrights and database rights and other proprietary rights, and the Software and Services shall at all times remain the sole and exclusive property of LSPL or its licensors. Except as expressly provided in Section 1 of this Agreement, User has no, and is not granted any, right, title, interest or licence in the Software or Services, and LSPL and its licensors reserve all rights not expressly granted under this Agreement.
7. RESTRICTIONS ON USE.
Except as otherwise expressly provided in this Agreement, User agrees to:
- only use the Software and Services in the manner, and for the purposes, expressly specified in this Agreement;
- not decompile, disassemble, analyse or otherwise examine the Software and Services for the purpose of reverse engineering;
- not delete or in any manner alter any notices, disclaimers or other legends contained in the Software and Services or appearing on any screens, documents, reports, numeric results or other materials obtained by User through use of the Software and Services ("Notices");
- not attempt to access any systems, programs or data of LSPL or any LSPL Party that are not licensed under this Agreement, or otherwise made available by LSPL or a LSPL Party for public use;
- not copy, reproduce, republish, upload, post, transmit, or distribute the Software or Services, or any portion thereof, or facilitate or permit a third party to do so;
- not use any device or software to interfere or attempt to interfere with the proper operation of the Software and Services; and
- not ship, transmit, transfer, or export the Software and Services into any country or use the Software and Services in any manner prohibited by Australian laws, restrictions or regulations.
User agrees that LSPL and the LSPL Parties are permitted to access any information or data User inputs or provides while accessing or using the Software and Services ("Data") and any reports or numeric results for the sole purpose of ensuring proper access and use of the Software and Services by User in accordance with this Agreement and to maintain and troubleshoot Software and Services. Following User's submission of Data, reports and numeric results to LSPL, LSPL has access to such Data, reports and numeric. User expressly agrees and acknowledges that the Licence is for evaluation purposes only and agrees not to input any Data involving actual patient records or any other protected health information in connection with its use of the Software and Services.
User acknowledges that the Software and Services constitute and contain confidential, proprietary and copyrighted information and subject matter of LSPL and LSPL Parties ("Confidential Information"). User agrees to not, directly or indirectly, without LSPL' prior written consent, use the Confidential Information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to a third party; or permit any third party to use such Confidential Information. "Confidential Information" shall not include information that is shown by competent evidence: (a) is in or enters the public domain without breach of this Agreement; (b) was possessed by User prior to first receiving it from LSPL or an LSPL Party; (c) was developed by User independently and without use of or reference to the Confidential Information; or (d) was received by User from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding the foregoing, User shall have the right to disclose Confidential Information if such disclosure is required by law, provided that if User is required by law to disclose Confidential Information, then, prior to any such disclosure, User shall (a) give prompt written notice of such requirement to LSPL or the applicable LSPL Party so it will have the opportunity to seek a protective order or other appropriate remedy; and (b) cooperate in LSPL' or such LSPL Party's attempts to obtain confidential treatment of such Confidential Information.
10. TRADENAMES AND TRADEMARKS.
This Agreement does not grant to any party a licence to use any trademark, trade name, or logo of the other party and each party recognises that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party's trademarks, trade names, or logos.
11. INJUNCTIVE RELIEF.
Each party acknowledges that a violation of Sections 7, 8 or 10 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 7, 9 or 10. The prevailing party shall be entitled to recover all cost and expenses, including reasonable attorney's fees incurred because of any such legal action.
12. HARDWARE AND SERVICE REQUIREMENTS.
User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges and Internet Service Providers fees) not owned or operated by or on behalf of LSPL, that allow User to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). User agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by LSPL, and amended by LSPL from time to time.
User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the telephone, computer networks and the Internet or to transmit information, whether or not supplied by User or LSPL, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software and Services. LSPL and the LSPL Parties are not in any way responsible for any such interference with or prevention of User's access and/or use of the Software and Services.
User agrees to defend, indemnify and hold LSPL and each LSPL Party, as well as the directors, officers, agents, and employees of LSPL and each LSPL Party, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably attorneys' fees and court costs) ("Losses") suffered or incurred in connection with a third party claim against LSPL and/or such LSPL Party arising or resulting from User's breach of any term of this Agreement or caused by acts or omissions performed by User. Without limiting the generality of the foregoing, User will indemnify LSPL for any Losses suffered or incurred by LSPL resulting from User's actions. LSPL will indemnify User and hold it harmless from and against any liability, judgments, claims, or expenses (including reasonably attorneys' fees and court costs) arising or resulting from a claim against User brought by a third party alleging that the material supplied by LSPL hereunder infringes any patent, copyright, or trademark of such third party. In order to receive indemnification under this Section, User must promptly notify LSPL of the assertion of the applicable third party claim; allow LSPL to retain sole and exclusive control over the defence and/or settlement of the claim and cooperate with LSPL in the defence and/or settlement of the Claim.
15. LICENCE TERM.
Unless earlier terminated pursuant to another provision in this Agreement this Licence shall be for a period of seven (7) calendar days.
16. TERM AND TERMINATION.
This Agreement and the Licence may be terminated at any time by either party for any reason. Upon termination of this Agreement for any reason, all rights, including the Licence granted to User, under this Agreement will immediately cease and User shall discontinue using the Software and Services. In addition to the foregoing termination rights, LSPL reserves the right to suspend User's access to the Software and Services if User is in breach of any of the terms of this Agreement such suspension to continue until such breach is cured by User. Upon termination of this Agreement, Sections 2, 3, 5, 6, 7, 9, 11, 13, 14, and 16 of the Agreement, and any other terms which contemplate continuing effectiveness, shall survive such termination.
17. OTHER PROVISIONS.
A. Complete Agreement. This Agreement is the complete and exclusive statement of the agreement between User and LSPL, and supersedes any prior or contemporaneous proposal or agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. This Agreement may not be modified by User except upon mutual agreement by the parties in writing signed by an authorised officer of LSPL. LSPL reserves the right, at any time, to change the terms of this Agreement, and such changes shall be effective upon User's receipt of notice thereof. ANY USE OF THE SOFTWARE AND SERVICES BY USER AFTER LSPL' PUBLICATION OR EMAIL OF ANY SUCH CHANGES SHALL CONSTITUTE USER'S ACCEPTANCE OF THE AGREEMENT AS MODIFIED.
B. Force Majeure.
LSPL will not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes, unavailability of utilities, failures of vendors or suppliers, and the like. C. Governing Law and General Provisions.