HL7Connect - HL7 Interface Engine. License Agreement

HL7Connect License Agreement

This software licence agreement

is made on the Commencement Date between the following parties:


1.	Kestral Computing Pty Ltd ABN 26 009 376 069 of Suite 8a, 17 Burgundy Street, Heidelberg VIC 3084, Australia (Kestral)

2.	the Licensee the details of which are set out in the applicable License Certificate (Licensee)

Recitals


A.	The Licensee wishes to acquire a licence in respect of the Licensed Software and Documentation.

B.	This agreement sets out the terms on which Kestral agrees to grant to the Licensee, and the Licensee agrees to take from Kestral, a licence in respect of the Licensed Software and Documentation.

The parties agree

in consideration of, among other things, the mutual promises contained in this agreement:

Definitions and interpretation

1.1

Definitions

In this agreement:

Commencement Date means the date on which Kestral emails the Licence Certificate to the Licensee, as recorded in Kestral’s computer systems;

Documentation means any operating manuals, training manuals and associated documentation provided with the Licensed Software;

Download Website means the website accessible at www.hl7connect.com or as otherwise determined by Kestral from time to time;

GST includes any replacement or subsequent similar tax;

Infringement Claim means any dispute, claim or action alleging infringement of any Intellectual Property Rights of any person on grounds in any way related to the Licensee's exercise of rights in the Licensed Software under this agreement;

Intellectual Property Rights means:


(a)	inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b)	copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist; and
(c)	know how, trade secrets and trade and service marks (whether registered or unregistered);

Licence Certificate means the document entitled "Kestral License Certificate" provided by Kestral to the Licensee which forms part of this agreement;

Licence Fee means the fee which must be paid in cleared funds to Kestral before the licence granted in this agreement becomes effective, and which is set out in the Licence Certificate;

Licensed Software means the Kestral software product which is an HL7 messaging interface engine for analysing, processing, and communicating health related information in an HL7 compliant format between HL7 compliant applications, being the HL7Connect Interface Engine Service, the HL7Connect Development Environment, and their associated utilities;

Loss means any damage, loss, claim, action, liability, cost, expense, outgoing or payment (whether direct, indirect, consequential or incidental);

Source Code means a form of computer program or a part of it written in a programming language employed by computer programmers which must be translated into the language of a machine before it can be executed;

Term means the time period set out in the Licence Certificate.

1.2

Interpretation

In this agreement, headings and boldings are for convenience only and do not affect the interpretation of this agreement and, unless the context requires otherwise:


(a)	the singular includes the plural and vice versa;
(b)	a reference to any thing (including, but not limited to, any right) includes a part of that thing; and
(c)	a reference to a person includes a body corporate and any other legally recognised entity.

Term


	This agreement commences on the Commencement Date and, unless terminated earlier in accordance with this agreement, ends on the expiry of the Term.

Licence

3.1

Grant of licence

Upon payment by the Licensee of the Licence Fee, Kestral grants to the Licensee a non-exclusive, non-transferable licence to use the Licensed Software for the Term of this agreement.

3.2

Downloading Licensed Software

The Licensee is responsible for downloading the Licensed Software and any Documentation from the Download Website, and installing the Licensed Software on its computer system.

3.3

Copies


(a)	The Licensee may not copy, alter, modify or reproduce the Licensed Software except to the extent authorised by this agreement.
(b)	The Licensee may make any copies of the Licensed Software reasonably required for operational use, backup and security.

3.4

No transfer of ownership

The Licensee acknowledges that there is no transfer of ownership to the Licensee of the Licensed Software or the Documentation or any modifications, updates or new releases of the Licensed Software.

3.5

No removal of copyright or other notices

The Licensee must not remove any copyright, trade mark or other proprietary notices of Kestral or its suppliers fixed to or displayed on the Licensed Software.

Documentation


	(a)	Documentation may be distributed with or included as part of the Licensed Software. Kestral licenses the Licensee to use any Documentation for the term of this agreement.
	(b)	The Licensee must not copy or reproduce the Documentation except to the extent authorised by this agreement.

Fees

5.1

Payment

The Licensee must pay the Licence Fee to Kestral in accordance with the timing and requirements specified on the Download Website, and as set out in the Licence Certificate.

5.2

Responsibility for taxes

The Licensee is responsible for payment of any taxation and other like liabilities (including goods and services, sales, excise, personal, property and other taxes, stamp duty, custom or levies) which may arise under any Commonwealth or State legislation or regulation as a result of or in connection with this agreement.

5.3

GST pass through

If GST is or will be imposed on a supply made under or in connection with this agreement, the supplier may, to the extent that the consideration otherwise provided for that supply under this agreement is not stated to already include an amount in respect of GST on the supply:


(a)	increase the consideration otherwise provided for that supply under this agreement by the amount of that GST; or
(b)	otherwise recover from the recipient the amount of that GST.

5.4

Tax indemnity

If Kestral incurs any penalty or interest under the GST legislation because the supply under this agreement has been treated by the parties as GST-free, the Licensee shall bear the cost of the penalties and interest.

Ownership of Licensed Software and modifications


6.1	Kestral ownership rights
	Except for the licence granted in this agreement, all right, title and interest (including, but not limited to, all Intellectual Property Rights), in and to the Licensed Software is retained by Kestral.
6.2	No decompilation
	The Licensee must not attempt to obtain the Source Code to the Licensed Software through decompilation, disassembly or other means, except as provided for under the Copyright Amendment (Computer Programs) Act 1999 (Cth).
6.3	No modifications or alterations
	The Licensee must not modify or alter the Licensed Software or merge any part of the Licensed Software with any other software without Kestral’s prior written consent.
6.4	Kestral’s property
	The Licensed Software remains Kestral’s property even if it is modified or altered, whether or not the modification or alteration is made in accordance with this agreement. The Licensee must assign to Kestral all Intellectual Property Rights arising out of any modification of or alteration to the Licensed Software.

Use of encryption software

(a)

The Licensed Software supports the use of certain encryption products developed by third party software providers (Encryption Software).

(b)

In order to use any Encryption Software or other encryption facilities in conjunction with or as part of the Licensed Software, the Licensee may need to:


(1)	independently licence Encryption Software appropriate for its requirements and compatible with the Licensed Software from a third party software provider; and
(2)	procure and use its own public key or encryption certificate.

(c)

Kestral does not warrant that any Encryption Software or Encryption Software interfaces which may be included in or used in conjunction with the Licensed Software comply with government regulations or mandatory export licences of any country. The Licensee must satisfy itself that its use of any Encryption Software is compliant with all relevant government regulations or licences.

(d)

The Licensee indemnifies Kestral against any Loss which may be incurred by Kestral as a result of the Licensee utilising any Encryption Software or other encryption facilities in any way in conjunction with the Licensed Software.

Warranties

8.1

Warranties by Licensee

The Licensee represents and warrants to Kestral that it has full power and authority to enter into, perform and observe its obligations under this agreement, and that its obligations under this agreement are valid, binding and enforceable.

8.2

Warranties by Kestral


(a)	Kestral makes no warranties in relation to the Licensed Software, or any Documentation, including, without limitation, that the Licensed Software or Documentation is fit for any particular purpose or that it does not infringe the Intellectual Property Rights of any third party.
(b)	Kestral does not warrant that the Licensed Software complies with any laws or regulations regarding the handling of confidential, medical, personal or other information. The Licensee must ensure that its use of the Licensed Software fully complies with any such laws or requirements.
(c)	Subject to clause 9.2 and to the extent permitted by law, Kestral excludes any implied warranties, including any warranties implied under the Trade Practices Act 1974 (Cth).

Limitation of liability


9.1	Limitation of liability
	Subject to clause 9.2 and any responsibilities implied by law which can not be excluded, Kestral, and its directors, employees, agents and contractors, are not liable to the Licensee for any Loss whatsoever, whether direct, indirect, special or consequential, arising under this agreement or as a result of the use of the Licensed Software or Documentation, howsoever caused, whether in contract, tort including negligence, statute or otherwise.
9.2	Restriction of liability
	Where any term or condition imposing liability is implied through the operation of any law, and that term or condition cannot be excluded, Kestral’s liability under that term or condition is limited to the resupply of the goods or services provided, or the cost of having those goods or services resupplied, at Kestral’s election.
9.3	Liability cap
	If Kestral is held or found to be liable to the Licensee for any matter relating to or arising in connection with this agreement, whether based on an action or claim in contract, negligence, tort or otherwise, the amount of damages recoverable from Kestral for all acts or omissions will not exceed in the aggregate an amount equal to the aggregate value of the amounts paid to Kestral by the Licensee under this agreement.

Infringement Claims and Indemnities

10.1

Infringement Claims

Subject to clause 10.3, Kestral releases the Licensee, the Licensee’s officers, contractors, agents and employees from, and indemnifies each of them against, all Loss arising out of or directly referable to any Infringement Claim.

10.2

Further obligations of an Infringement Claim


(a)	If an Infringement Claim is made against the Licensee then the Licensee must notify Kestral as soon as possible.
(b)	Kestral will conduct the defence of the Infringement Claim in relation to the Licensed Software or Documentation at its expense.
(c)	The Licensee must, at its own expense, provide to Kestral all reasonable assistance in conducting the defence to an Infringement Claim.

10.3

Infringement Claim exclusions

The indemnity against an Infringement Claim as set out in this clause 10 does not apply to components of the Licensed Software which have been developed by third parties, including, without limitation:


(a)	the HL7 dictionary, provided by HL7 Incorporated; and
(b)	the 'RNAPH.DLL' dynamic link library, provided by Microsoft.

10.4

Indemnity

The Licensee indemnifies Kestral and its employees, agents and contractors against any Loss suffered or incurred arising out of or referable to any injury to, or death of, a person or damage to real or personal property of Kestral or a third party, caused or contributed to by the Licensee or any representative of the Licensee, except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of Kestral.

Termination

11.1

Termination for convenience

Either party may terminate this agreement at any time by giving 30 days written notice to the other.

11.2

Termination by Kestral

Kestral may terminate this agreement immediately by giving written notice to the Licensee if there is any breach by the Licensee of clauses 3.1, 3.5, 5.1 or 6.

11.3

Events following termination

On termination or expiry of this agreement:


(a)	the Licensee is not entitled to any return or refund of the Licence Fee;
(b)	the Licensee must immediately and permanently remove the Licensed Software from any equipment under its possession, power or control;
(c)	the Licensee must pay to Kestral any outstanding amounts due under this agreement; and
(d)	the Licensee must destroy all documents and other materials, in any medium, in its possession, power or control (except for internal company documents) which contain or refer to any confidential information of Kestral.

Notices

(a)

A notice from one party to the other must be sent to:


(1)	in the case of Kestral, the address detailed above, or as otherwise notified from time to time; or
(2)	in the case of the Licensee, the address provided by the Licensee to Kestral and included on the Licence Certificate, or as otherwise notified from time to time.

(c)

A notice is taken to be received:


(1)	in the case of a posted letter, on the second (seventh, if posted to or from a place outside Australia) day after posting;
(2)	in the case of facsimile, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the recipient’s facsimile number;
(3)	in the case of email, at the time the sender receives a return receipt confirming delivery of the email. If the sender does not receive a return receipt within 48 hours of sending the email then the sender must use a method set out in clauses 12(c)(1) or 12(c)(2) to confirm delivery of the notice.

General

13.1

Prohibition and enforceability


(a)	Any provision of, or the application of any provision of, this agreement and any transaction contemplated by it which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b)	Any provision of, or the application of any provision of, this agreement and any transaction contemplated by it which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

13.2

Severance


(a)	If a provision of this agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder for the purposes of enforcement in that jurisdiction.
(b)	The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
(c)	This clause 13.2 has no effect if the severance alters the basic nature of this agreement.

13.3

Amendment

A provision of, or a right under, this agreement may not be varied, supplemented or replaced except in writing executed by both parties.

13.4

Waivers


(a)	A provision of, or a right created under, this agreement may not be waived except in writing executed by the party granting the waiver.
(b)	A failure by a party to insist on strict performance of any of the terms of this agreement is not to be deemed a waiver of any subsequent breach or default of the terms of this agreement.

13.5

Exercise of rights


(a)	Except as expressly provided to the contrary in this agreement, a party mayexercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.
(b)	A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that, or of any other, right, power or remedy.
(c)	Failure by a party to exercise, or a delay in exercising, a right, power or remedy does not prevent its exercise.

13.6

Entire agreement

This agreement supersedes all previous agreements in respect of its subject matter and contains the entire agreement between the parties.

13.7

Governing law

This agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, and courts of appeal from them, for determining any dispute concerning this agreement.

13.8

Assignment


(a)	The Licensee may not assign its rights under this agreement without Kestral’s prior written consent, which Kestral may give or withhold in its sole discretion.
(b)	Kestral may assign any of its rights under this agreement without the Licensee’s prior written consent.

13.9

Survival

Clauses 6, 8, 9 and 11.3 impose continuing obligations on the relevant parties and survive termination or expiry of this agreement.

13.10

Version

This is version 1.01-001 of the HL7Connect Software License Agreement, current as of 3 October, 2001 at 7:00 pm Australian Eastern Standard time.