Consumer End User Licence Agreement

MIMS Australia Consumer End User Licence Agreement

IMPORTANT - CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.

BY INSTALLING, DOWNLOADING OR ACCESSING OR OTHERWISE USING THE DATABASE WITHIN THE SOFTWARE YOU ("LICENSEE") AGREE TO BE BOUND BY THIS AGREEMENT IN ITS LATEST VERSION. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT INSTALL OR USE THE DATABASE OR ANY UPGRADE OR SUPPLEMENT TO THE DATABASE. ONCE THE DATABASE HAS BEEN INSTALLED, ANY PERSON SUBSEQUENTLY OPENING OR USING THE DATABASE WILL BE DEEMED TO BE A USER AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

DISCLAIMER

THE AUTHORS, MIMS AUSTRALIA, MIMS AUSTRALIA’S SERVANTS AND AGENTS OFFER NO MEDICAL ADVICE IN CONNECTION WITH THE DATABASE. YOU ARE RESPONSIBLE FOR THE USE OF THE CONTENT IN THE DATABASE. A QUALIFIED HEALTHCARE PROFESSIONAL IS RESPONSIBLE FOR INDEPENDENTLY REACHING ANY MEDICAL JUDGMENT, AND FOR ANY RESULTING DIAGNOSIS AND TREATMENTS, NOTWITHSTANDING ANY USE OF THE CONTENT BY SUCH HEALTHCARE PROFESSIONAL. BY USING THE DATABASE, YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION IN THE DATABASE MAY CONTAIN INACCURACIES AND OTHER ERRORS.

YOU USE THE DATABASE AND THE MATERIAL AND INFORMATION IN THE DATABASE AT YOUR OWN RISK. THE AUTHORS, MIMS AUSTRALIA, MIMS AUSTRALIA’S SERVANTS AND AGENTS ARE NOT LIABLE FOR ANY DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF USE OF THE DATABASE, AND INCLUDING ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

1. LICENCE

1.1. MIMS Australia grants to You and You accept, a non-transferable and non-exclusive licence to use the Database within the Product in the Territory, solely for general educational purposes only, subject to the terms of this Agreement and the following conditions:

(a) You may only copy the Database within the Product into a machine readable form for backup purposes only (but for no other purpose) in support of Your use of the Product. MIMS Australia, however, may include mechanisms to limit or inhibit such copying; and

(b) You may not: alter, merge, modify or adapt the Database within the Product in any way, including but not limited to disassembling or decompiling; sell, re-supply, redistribute, loan, rent, lease or license the Database or transfer or allow the use or access by any other person, the Database or any copy, in whole or in part, in any way, including but not limited to disassembling or decompiling, except as expressly provided for in this license; and

(c) You must not adapt the Database or any content of the Database to create a derivative work, product or service including but not limited to resulting from the use or in combination with artificial intelligence tools (including to train an algorithm, test, process, analyse, generate output, and/or develop any form of artificial intelligence tool).

(collectively, known as MIMS Australia Licence)

2. TERMINATION

2.1. MIMS Australia has the right to immediately terminate Your MIMS Australia Licence if:

(a) the Vendor is in breach of any of its obligations to MIMS Australia, and that breach has not been remedied to the satisfaction of MIMS Australia within the requisite time period;

(b) the Customer is in breach of any of its obligations to MIMS Australia, and that breach has not been remedied to the satisfaction of MIMS Australia within the requisite time period; or

3. LIMITED WARRANTY

3.1. MIMS Australia warrants that:

(a) except as specifically provided herein, except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth) or any other applicable law (Non Excludable Condition) MIMS Australia makes no warranty or representation, either express or implied, with respect to the Database or other goods or services it supplies;

(b) except for any Non Excludable Condition, MIMS Australia excludes all liability for the breach of any warranty or condition of any kind in respect of the Database or other goods or services it supplies; and

(c) where legislation implies into this Agreement any Non Excludable Condition, MIMS Australia’s liability for any breach of such Non Excludable Condition will be limited at MIMS Australia’s sole discretion to one or more of the following:

(i) in the case of goods, any one or more of the following:

(A) the replacement of the goods or the supply of equivalent goods;

(B) the repair of the goods;

(D) the payment of the cost of having the goods repaired; or

(ii) in the case of services:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

4. LIMITATION OF LIABILITY

4.1. To the fullest extent allowed under the Competition and Consumer Act 2010 (Cth) or any other applicable law except for liability for any Non Excludable Condition:

in no event will MIMS Australia be liable for any indirect loss, consequential loss, loss of profits, loss of revenue, loss of goodwill, exemplary damages, punitive damages or special damages in connection with or arising out of use of the Database, the accuracy of the data contained in the Database, any breach of this Agreement and any negligence in parties performing its obligations under this Agreement; and in no event will MIMS Australia’s liability to You for any claim or damage arising out of or in connection with this Agreement exceed $10,000.

5. INTELLECTUAL PROPERTY

5.1. All Intellectual Property Rights and other proprietary rights in or related to the Database are and will remain MIMS Australia’s exclusive property, whether or not specifically recognised or perfected under local applicable law and You must not take any action that jeopardises MIMS Australia’s proprietary rights.

5.2. Subject to this Agreement, no licence, right or interest in any MIMS Australia trade-marks, service marks or trade names is granted to You under this Agreement. If an action is brought against You claiming that the Database infringes the Intellectual Property Rights of a third party, MIMS Australia will, at its expense, defend or, at its option, settle the action and, subject to this clause 5, indemnify You against any loss, cost or expense (including reasonable legal fees and expenses), demand or liability, whether direct or indirect, arising out of any such claim, but only if:

(a) You notify MIMS Australia promptly of any infringement, suspected infringement or alleged infringement;

(b) MIMS Australia has 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 MIMS Australia’s prior written consent, and take no other action that is contrary to MIMS Australia’s interests; and

(d) You provide MIMS Australia with all available information and assistance as MIMS Australia may reasonably require in respect of any proceedings.

5.3. If a claim described above has been asserted, MIMS Australia will, at MIMS Australia’s sole option and expense:

(a) procure the right for You to continue using the Database; or

(b) replace or modify the Database to eliminate the infringement while providing functionally equivalent performance; or

(c) accept the return of the Database and refund You such proportion of the fees actually paid by You, if applicable, to MIMS Australia for such Database (where appropriate), which represent the period for which You have not had use of the Database.

5.4. MIMS Australia will have no obligation to defend and indemnify You in respect of any claims that the Database infringes the Intellectual Property Rights of a third party, to the extent that a claim results from:

(a) a correction to or modification of the Database not provided by MIMS Australia;

(b) use of the Database other than in accordance with the relevant documents or this Agreement;

(d) use of the Database in conjunction with other products that are not owned by MIMS Australia (other than as contemplated by this Agreement).

5.5. To the full extent permitted by the Competition and Consumer Act 2010 (Cth) or any other applicable law, the remedies contained in this section constitute Your sole and exclusive remedies and MIMS Australia ’s entire liability under this Agreement with respect to infringement of third party Intellectual Property Rights.

6. INDEMNITY FROM YOU

6.1. You agree to indemnify, defend and hold MIMS Australia harmless against any claims, liabilities, proceedings, costs, losses, expenses or damages incurred by MIMS Australia in connection with Your use of the Database (including, without limitation, any use by You of an out of date edition of the Database or use of the Database outside the Territory) that is in breach of this Agreement or any other negligent or wrongful act or omission by You.

7. DATABASE AND DISCLAIMER

7.1. The Intellectual Property Rights in the Database is MIMS Australia’s and may only be used by You in accordance with this Agreement. Apart from any fair dealing for the purposes of private study, research, criticism or review as permitted under any applicable law, no part may be reproduced by any process or stored in or transmitted by any retrieval system without MIMS Australia’s prior written permission (save as provided for in clause 1.1(a)).

7.2. The Database provides to You information on the most commonly prescribed medicines in the Territory.

7.3. In each case, any omissions are due to the necessary information not being available to MIMS Australia at the time of publication. Although every effort has been made in compiling and checking the information in the Database to ensure that it is accurate, the authors and MIMS Australia and MIMS Australia’s servants and agents shall not be responsible for the continued currency of the information or for any errors, omissions or inaccuracies in the Database, the information or the Intended Results from using the Database, whether arising from negligence or otherwise, howsoever or for any consequences arising there from.

7.4 The Database is designed to offer You information for general educational purposes only. The medicine information provided in the Database is not intended to be professional advice and are not intended to replace personal consultation with a qualified healthcare professional. You must always seek the advice of a professional for questions related to a disease, disease symptoms, and appropriate therapeutic treatments. If You have or suspect that You have a medical problem or condition, please contact a qualified healthcare provider immediately. You should never disregard medical advice or delay in seeking it because of something You have read in the Database.

7.5 The content was developed for use in Australia and neither the authors nor MIMS Australia, MIMS Australia’s servants and agents, make any representation concerning the content when used in any other country. MIMS Australia does not give medical advice, nor provide medical or diagnostic services. MIMS Australia does not guarantee that the medicine information in the Database covers all possible uses, directions, precautions, drug interactions, or adverse effects that may be associated with any therapeutic treatment.

You may not rely on the application of any information in the Database as being applicable to Your specific circumstances.

Your reliance upon information and content obtained by You in or through the Database is solely at Your own risk. Neither the authors nor MIMS Australia, MIMS Australia’s servants and agents, assume any liability or responsibility for damage or injury (including death) to You, other persons, or property arising from any use of any information, idea, or instruction contained in the content or services provided to You.

7.4. The Database includes information provided by third parties. This information is identified with the name of the source and has been chosen for publication because MIMS Australia believes it to be reliable. The Database may also contain links to Internet sites maintained by third parties over which MIMS Australia has no control, nor does MIMS Australia have full knowledge of the content of such sites. A list of third-party sources is provided under Copyright Information at the end of this Agreement, and may be updated from time to time. This means certain information provided by existing third-party sources in the Database may become unavailable, or be replaced by other third-party sources, from time to time. To the extent permitted by law, MIMS Australia, its employees and agents accept no liability (including negligence) for any injury, loss or damage caused by the reliance on any part of this third party information.

7.5. MIMS Australia does not warrant that the functions contained in the Database within the Product will meet Your requirements or that the operation of the Database will be uninterrupted or error free. To the extent permitted by law, the warranties and remedies set forth herein are exclusive and in lieu of all others, oral or written, expressed or implied.

8. CONFIDENTIAL INFORMATION

8.1. Each party (“Receiving Party”) agree that unless authorised by the other party (“Disclosing Party”) in writing, must:

(a) Not disclose any Confidential Information to any other person other than Receiving Party and its employees, officers, consultants or related bodies corporate who need to know the Confidential Information for the purposes of performing the obligations under this Agreement, and who agree to observe terms substantially similar to this clause 8, provided that to be responsible for any breach of this Agreement by the Receiving Party and its employees, officers, consultants or related bodies corporate;

(b) not make use of any Confidential Information for any purpose other than for the purpose of performing its obligations under this Agreement; and

(c) keep the Confidential Information secure and protect it from unauthorised use, reproduction, access and damage or destruction.

8.2. Unless otherwise agreed in writing, on the termination of this Agreement or upon written notice by MIMS Australia, all Confidential Information whether in hard copy or electronic form will be returned to MIMS Australia or destroyed (at the MIMS Australia’s option) as soon as reasonably practicable and in any event within 7 days of the date of such termination or notice and certify by a letter signed by You that You have unconditionally complied with Your obligations under this clause.

8.3. In the event of a breach or threatened breach of the terms of this clause 8 by You, MIMS Australia is entitled to an injunction restraining You from committing any breach of this clause 8 without showing or proving any actual damage sustained by You and that the obtaining of an injunction is without prejudice to the rights of MIMS Australia to seek damages for loss suffered as a result of a breach of this clause 8 by You.

8.4. Notwithstanding any other clause of this Agreement, You accept full responsibility for the security of the copy of the Database within the Product. You shall allow MIMS Australia or MIMS Australia’s auditors or other persons duly authorised by MIMS Australia access to the copy of the Database provided to You upon receipt of reasonable notice from MIMS Australia.

8.5. You acknowledge and agree that in respect of this Agreement You will comply with the Privacy Act 1998 (Cth) and any other privacy laws applicable in Australia.

8.6. You will use the same degree of care, but no less than a reasonable degree of care, as You use with respect to Your own similar information to protect the Confidential Information and to prevent any use of Confidential Information not authorised in this Agreement, dissemination of the Confidential Information to any employee, director, agent or sub-contractor of You, communication of the Confidential Information to any third party, or publication of the Confidential Information.

9. GENERAL

9.1. Neither party may assign or transfer this Agreement without the prior written approval of the other party except where such assignment or transfer is required or expressly permitted by law.

9.2. MIMS Australia may amend the terms of this Agreement from time to time. We will provide You with written notice of the changes and MIMS Australia recommends that You review the latest version of this Agreement. Should you have any questions with regards to the changes, please contact MIMS Australia Customer Service Team on 1800 800 629 or email to subscriptions @mims.com.au.

9.3. Notwithstanding that any provision of this Agreement may prove to be illegal or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect.

9.4. A person or entity, other than MIMS Australia or You, who is not a party to this Agreement, shall have no right to enforce any term of this Agreement.

9.5. You acknowledge that You have read this Agreement and understood and agree to be bound by its terms and conditions prior to You using the Database and You warrant that You comply with the provisions of this Agreement. You further agree that it is the complete and exclusive statement of the Agreement between You and MIMS Australia, which supersedes any proposal or prior agreement, oral or written, and any other communication between You and MIMS Australia relating to the subject matter of this Agreement. This Agreement is governed by the laws of New South Wales, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales Australia.

10. DICTIONARY

Agency means the Therapeutic Goods Administration of Australia.

Agreement means this document and any annexure, schedule or modification made to it.

Confidential Information means information concerning any documentation, trade secrets, processes, data and know how, software, records, drawings, graphs, formulae, program files, flowcharts, samples, techniques, source and object code, standards, specifications, improvements, inventions, techniques, customer information, accounting data, statistical data, research projects, development and marketing plans, strategies, forecasts, computer programs, and customer lists, electronic data and any other means by which the information may be stored or reproduced which is, or which You ought to have known is confidential or proprietary in nature to MIMS Australia. Confidential Information includes the Database and Documentation.

Customer means the entity licensed to give You access to use the Product.

Database means any third-party data and/or the data developed by MIMS Australia, as updated, upgraded or modified from time to time and included in the Product.

Documentation means the documentation relating to the use of the Product and the Database.

Intellectual Property Rights means all rights, whether 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, know-how, confidential information or proprietary information or any similar rights of intellectual property, and any applications for, or rights to obtain or acquire, any such rights.

Intended Results means the use of the Database in the Product as a reference product and to return information to You.

Product means the software which incorporates the Database.

Territory means Australia.

MIMS Australia means MIMS Australia Pty. Ltd (ABN 68 050 695 157) of Suite 1602, Level 16, 44 Market Street, Sydney, NSW 2000, Australia.

Vendor means the entity which has a valid licence agreement with MIMS Australia to sub-licence the Database and Product to the Customer.

You, Your, Yourself means the licensee of this MIMS Australia Licence.

Should You have any questions concerning this Agreement, please write to MIMS Australia at:

MIMS Australia Pty. Ltd.

Locked Bag 3000, St Leonards, NSW 1590

The MIMS Australia Database also contains materials copyrighted by third parties, as follows. The materials available to You in the Product is subject to the functionalities acquired by the Vendor from Us, which may not necessarily be the full list.

• Anatomical Therapeutic and Chemical (ATC) Classification Codes are sourced from the World Health Organization (WHO) Collaborating Centre.

• Product Information (PI) and Consumer Medicine Information (CMI) are based on the materials published on the Therapeutic Goods Administration (TGA) website.

• Schedules of AU medicines are based on the Poisons Standard (the SUSMP).

• Drug Sport Categories are based on the World Anti-Doping Agency (WADA) Prohibited List.

• Australia Medicines Terminology (AMT) is a national, standards-based approach to the identification and naming of medicines in clinical systems for Australia. For more information, see National Clinical Terminology Service website.

• Pregnancy Categories are based on the Prescribing Medicines in Pregnancy Database by the Australian Therapeutic Goods Administration (TGA).

• Subsidy status and restrictions of government-funded medicines in Australia are based on the Pharmaceutical Benefits Scheme (PBS).

• Don't Rush To Crush is Australia's essential guide to safely administering medicines to people with enteral feeding tubes or who have difficulty swallowing. DRTC is published by the Society of Hospital Pharmacists of Australia (SHPA). Additional subscription is required.