TERMS AND CONDITIONS

A. Sonic Healthcare Limited (Sonic) of 95 Epping Road, North Ryde, New South Wales, Australia is the owner of all rights in and to the Application.
B. The Application Provider is a wholly owned subsidiary of Sonic and has Sonic’s authority to grant a licence of the Application to the User on the terms of this Agreement.
C. The User accepts the licence of the Application upon the terms of this Agreement.

THE USER AGREES AS FOLLOWS.
1. Definitions and interpretation
1.1 Definitions
The following definitions apply in the Recitals and this Agreement unless the context requires otherwise:
Agreement means these terms and conditions.
Application means Sonic Healthcare Limited’s online ‘Fetch’ software application. This Application provides for the online delivery of patients’ pathology and other medical test results, to a specified file directory located on the patient’s treating medical practitioner’s computer.
Confidential Information means all confidential information relating to the Application (including, without limitation the object code, source code and any user manuals supplied with the Application), or infromation concerning the Application Provider’s or Sonic’s products, services, business, operations, finances, promotions and management including without limitation:
(a) all information designated by the Application Provider or Sonic as confidential; and
(b) all information imparted in circumstances where it could reasonably be inferred as being confidential.
Intellectual Property Rights means all intellectual rights throughout the world, under statute, common law or in equity, existing now or in the future, whether registered or unregistered, including but not limited to:
(a) copyright, trade marks, trade dress, get-up of goods, designs, patents, semi-conductor or circuit layout rights, business, company or trade names, any right to have confidential information kept confidential; and
(b) any application or right to apply for registration any of the rights referred to in paragraph (a) above.
Site means the location of the User’s computer.
1.2 Interpretation
The following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and conversely;
(c) a gender includes any gender;
(d) a reference to legislation includes but is not limited to a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument under it;
(e) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;

2. Grant of Licence
2.1 In consideration of the covenants contained in this Agreement, the Application Provider hereby grants to the User a non-transferable, non-exclusive, fee-free licence, in perpetuity from the date of this Agreement unless terminated pursuant to clause 4, to access and use the Application at the Site online via the Internet.
2.2 If the User is a company, association, partnership or other body corporate, then the User Representative specified at Item 3 of the Schedule shall be jointly and severally responsible and liable for all of the User’s obligations under this Agreement.

3. Installation of Application and Training
3.1 Subsequent to the User executing this Agreement, on a mutually agreed date and time during the User’s normal business hours, the Application Provider’s authorised representative shall attend the Site or in some other manner provide assistance to the User to install and activate the Application on one of the User’s computers.
3.2 The Application may not be installed on any additional or other User computer without the Application Provider’s prior written permission.
3.3 The User may grant authority to any employee, contractor, agent or other person under the direction and control of the User to have access to the Application at the Site. The User acknowledges and agrees that sole responsibility and liability for the acts or omissions of all persons using the Application at the Site at all times remains solely with the User.
3.4 Other than as expressly provided for in this Agreement, the User shall not copy, use or otherwise deal with the Application in any manner whatsoever, including but not limited to reverse engineering of the Application.
3.5 At the time of installation the Application Provider’s representative may provide a brief training session regarding the functions and the use of the Application.
3.6 Further free telephone assistance regarding the functions and use of the Application is available to the User during normal office hours.
3.7 The User is responsible for providing all of its own internal facilities (including but not limited to computers, other software, modem or telecommunications facilities) necessary for utilising the Application.

4. Termination
4.1 This Agreement may be terminated by either party at any time without cause by giving fourteen (14) days’ written notice to the other party.
4.2 Upon termination of this Agreement, the User shall immediately cease using the Application and the User’s access to the Application will be terminated by the Application Provider.

5. Confidential Information
5.1 The User acknowledges that it may be supplied with Confidential Information by the Application Provider and the User agrees to keep such Confidential Information strictly confidential and not to disclose it to any third party, except for the User’s own employees, contractors or other authorised personnel on a strict need to know basis under at least as strict an obligation of confidence as set out in this clause 5.1.
5.2 These obligations on the User do not apply to information which:
(a) is known to the User by reason other than disclosure by the Application Provider or Sonic;
(b) is or becomes public knowledge through no fault of the User;
(c) is required to be disclosed by a governmental body or at law.

6. Warranties and Indemnities
6.1 Each party warrants to the other that it has full capacity, power and authority to enter into this Agreement and to perform its obligations under this Agreement.
6.2 The Application Provider warrants that the Application does not infringe the Intellectual Property Rights of any third party and the Application Provider fully indemnifies the User from and against any liability incurred by the User arising from any claim, demand, suit, action, or proceeding made or brought by any person in relation to the alleged infringement of that person’s Intellectual Property Rights with respect to the Application. The Application Provider will conduct or otherwise assist with the defence of any proceedings brought against the User with respect to the Application’s alleged infringement of the Intellectual Property Rights of any third party.
6.3 Except for the specific warranties given by the Application Provider in this Agreement, or the warranties which cannot be excluded at law, the Application Provider makes no other warranties with respect to the Application and expressly disclaims all warranties, express or implied, including without limitation any and all warranties of merchantability, fitness for purpose with respect to the Application, nor does the Application Provider warrant that the Application will be error-free or operate without interruption.
6.4 Each party (indemnifying party) fully indemnifies and holds harmless and agrees to keep fully indemnified and hold harmless, during and after the term of this Agreement, the other party (indemnified party) and its successors, officers, directors and employees from any and all actions, claims, demands, costs, liabilities, expenses and damages (including reasonable attorneys’ fees) to the extent they arise in connection with an indemnifying party’s breach of its representations, warranties or obligations in this Agreement or the indemnifying party’s acts, omissions or misrepresentations, provided that prompt notice is given to the indemnifying party of any claim to which the indemnity relates and the indemnifying party may assume control of the defence and settlement of any such claim.

7. Limitation of Liability
7.1 To the maximum extent permitted at law, the Application Provider will not be liable to the User or to any third party for any consequential or indirect loss or damage in respect of any liability under this Agreement.

8. Intellectual Property Rights
8.1 The User acknowledges and agrees that all Intellectual Property Rights in relation to the Applications, marketing materials, user documentation or any other materials whatsoever connected with the Application is owned by Sonic and all goodwill and reputation accrued in relation to the Application and related materials accrues solely for the benefit of Sonic.
8.2 The User warrants that it will not, during or after the term of this Agreement, do anything which may threaten or infringe the Intellectual Property Rights of Sonic.
8.3 The User will immediately notify the Application Provider of any actual or impending infringement of any Intellectual Property Rights in relation to the Applications or associated materials of which it becomes aware and will provide the Application Provider and Sonic with all reasonable assistance to defend such Intellectual Property Rights (at the Application Provider’s or Sonic’s expense).

9. Security and Privacy
9.1 The User acknowledges that the data transmitted between the Application Provider and the User via the Application will frequently constitute personal or sensitive information, as those terms are defined in the Privacy Act 1988 (Cth) of third parties. The User therefore warrants to treat such data with the same level of security as the User would treat this information in a non-online environment and the User will comply with all requirements set out in the Privacy Act 1988 (Cth) including but not limited to the National Privacy Principles, then currently in force with respect to that Act, concerning all data transmitted via the Application. The User must each have in place adequate security systems and procedures to prevent any disclosure of such data to non-authorised persons.

10. General Provisions
10.1 Assignment and sub-contracting
(a) The Application Provider’s rights and obligations under this Agreement may be assigned, or sub-contracted to a third party upon written notice being given by the Application Provider to the User.
(b) The rights and obligations of the User under this Agreement may not be assigned, nor sub-contracted, to any third party by the User without the Application Provider’s prior written consent, provided always that the User remains wholly and solely liable for all of the User’s obligations under this Agreement.
10.2 Severability
In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision must to the extent of the invalidity, illegality or unenforceability be ignored in the interpretation of this Agreement and all the remaining provisions of this Agreement will remain in full force and effect.
10.3 No waiver
A party to this Agreement is not to be taken to have waived any right or entitlement it may have under this Agreement unless and until that waiver is notified in writing to the party seeking the benefit of the alleged waiver. Waiver by a party in respect of an act or thing required to be done under this Agreement does not act as a waiver of any other act or thing (whether of the same or of a different nature) required to be done under this Agreement.
10.4 No agency
Nothing contained in this Agreement (unless expressly provided otherwise) and nothing done or omitted to be done by either party during the Term constitutes or may be deemed to constitute either party as an agent, partner, servant or legal representative of the other party for any purpose whatsoever, and neither party shall represent that the relationship between the parties is other than that of independent contractors.
10.5 Governing law
The laws of the State of New South Wales and the Commonwealth of Australia apply to this Agreement to the exclusion of any other laws. The parties agree to submit to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia in relation to this Agreement.