MedicalDirector Drug Data Services
End User Licence Agreement
Version: 1 April 2023
1. This EULA
1.2. Depending on the scope of our agreement with the Provider, our supply may involve the provision of Data or any additional services, or access to and use of our software to view the Data (Software Access) (collectively referred to as the Services).
1.3. If you are:
(a) a health care professional or other person that is qualified or trained in interpreting the Data; and
(b) authorised by a Provider to access the Services, either as:
(i) their specified personnel (Authorised Personnel); or
(ii)
as any other third party approved
by them (and permitted by us), such as individuals who purchase access to the
Services under a resale arrangement with a Provider (End Customer),
you will be an End User
for the purposes of this EULA. If you are not an End User, you are not
permitted to access the Services.
1.4. For the purposes of this EULA, a reference to:
(a) ‘you’ or ‘your’ is a reference to an End User; and
(b) ‘Agreement’ is a reference to: for Authorised Personnel, the Licence Agreement between us and the Provider; and for End Customers, the resale agreement between you and the relevant Provider.
1.5. This EULA, together with the relevant terms of any Agreement, sets out the basis on which End Users are permitted to access and use the Services. If you do not agree to this EULA then you must not use the Services.
2. Your access to and use of the Services
2.1. Subject to this EULA and the terms of any Agreement, we grant to you a non-exclusive, non-transferrable and revocable licence to access and use the Services in Australia (End User Licence).
2.2. The End User Licence is subject to the following restrictions:
(a) you must only use or access the Services for purposes permitted or contemplated by this EULA (or any Agreement), or as otherwise expressly authorised by us;
(b) you may not sub-licence the End User Licence, unless otherwise specified by us;
(c) the Services may only be used within Australia;
(d) only End Users are permitted to access and use the Services;
(e) you may not commercialise, adapt, copy, modify, resell, disassemble, decompile or reverse engineer the Services, or permit anyone else to do so, unless this EULA or any Agreement provide otherwise;
(f) you must not combine or integrate the Services with other third party data or information about the interactions of pharmaceutical products or interactions of pharmaceutical products with certain diseases;
(g) you must, at all times, comply with the terms of this EULA and any Agreement; and
(h) you must immediately notify us of any actual or suspected breach of this EULA by you, any other End User or any unauthorised user that you become aware of.
2.3. Subject to this EULA, the End User Licence will be valid for any timeframe specified by the Agreement. If the Agreement expires or is terminated, we will cease providing the Services and your End User Licence to access and use the Services will terminate.
2.4. We, or the Provider, may otherwise change, suspend or discontinue any part of your access to, or use of, the Services at any time at our or the Provider’s discretion and without any liability to you. If a change is detrimental to you, you can cease using the Services at any time by emailing us at servicedesk@health.telstra.com or by using such other contact details as we may notify to you from time to time.
2.5. If this EULA is terminated for any reason or your access is otherwise discontinued, you must:
(a) immediately cease using the Services, including any Software Access; and
(b) within 15 days of such termination, you must return or destroy the original and all copies of any Data or documentation in all forms, and must certify in writing to us that you have met this obligation.
3. Fees
3.1. You do not have to pay any fees directly to us to access and use the Services:
(a) if you are Authorised Personnel, any fees will generally be paid by your Provider under the terms of the Licence Agreement; and
(b) if you are an End Customer, any fees will generally be paid by you to the Provider under the terms of your agreement with them.
3.2. You are responsible for any charges from your mobile network or internet service provider in relation to your access to and use of the Services.
4. Acceptable use
4.1. You agree to comply with our reasonable instructions, directions, policies or procedures regarding your use of the Services, including this EULA, as notified to you from time to time by us or the Provider.
4.2. You acknowledge that:
(a) the Services are only intended for use as a supplement to, and not as a substitute for, the expertise and judgment of a health care professional with knowledge of a patient’s health and circumstances or the availability, purpose, impact and side effects of relevant drugs or other therapeutic goods;
(b) Data made available through the Services consists of drug and therapeutic information and resources that are compiled by us or licensed through third parties;
(c) the Data is general in nature and is intended to assist doctors, pharmacists and other health care professionals with a clinical and educational reference aid only; and
(d) the Data may, at times, not be accurate, consistent, up to date, complete or error free and it should not be used as the sole basis for any medical advice or treatment (including prescribing or dispensing medication).
4.3. In connection with your access to or use of the Services, you must not:
(a) breach any laws, or encourage or assist in the commission of any illegal act;
(b) infringe any person’s rights, including intellectual property and proprietary rights, rights of confidentiality or contractual rights;
(c) use or access the Services for any purpose not permitted or contemplated by this EULA and any Agreement (or otherwise authorised by us), or misrepresent that nature of the Services to any other person (including by making a representation that is inconsistent with the disclaimers contained in this EULA);
(d) use or access the Services in any way that could damage our reputation, our goodwill or any other rights associated with the Service;
(e) replicate or reproduce the Services (in particular, the Data) or create any derivative works based upon the Data, with the exception of print reasonably required copies of the Data that is solely for your personal use and used in accordance with this EULA; and
(f) to the extent you have Software Access:
(i) include any material that contains any virus or harmful code, or program that is designed to impair the performance of the Services or any device accessing the Services;
(ii) impersonate any other person;
(iii) negatively impact any other users’ ability to access and use the Services;
(iv) publish or link to malicious content; or
(v) engage in conduct which is unlawful, defamatory, obscene, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person, or which will or is reasonably likely to damage our reputation or our services (including the Services).
4.4. You are responsible for maintaining proper configuration of the equipment or devices on which the Services are accessed or used. Unless you are accessing the Services via Software Access, we are not responsible for the operation of the third party software that incorporates, and through you access, the Services.
4.5. We may update the Data, our software, or any other aspect of the Services from time to time. If an update to the Data is provided, you must only use the updated Data and no longer use or rely on any previous versions of the Data.
5. Clinical disclaimers
5.1. To the maximum extent permitted by law:
(a) you acknowledge and agree that the Data does not constitute, and must not be relied on for, professional medical or healthcare advice, diagnosis or recommendation of treatment and are not intended to, nor should be used to, replace professional medical advice. In no circumstances should the Data be relied upon without independent consideration and confirmation by a qualified medical practitioner who is wholly responsible for the care and treatment of any patients;
(b) we make no representations or warranties with respect to any treatment, action, suitability or application of medication or preparation by any person whether in accordance with the Data or not;
(c) where the Service or Data provides prompts, insights and/or warnings to interactions of certain pharmaceutical products (including with certain diseases), we do not represent or warrant that the list of such interactions or the dataset used to produce those prompts, insights and/or warnings are accurate, complete, up to date or comprehensive. It is the sole responsibility of any prescribing medical practitioner to ensure that all current product and prescription information in relation to pharmaceutical products referred to in that Service or Data has been read and understood prior to the prescription of any pharmaceutical product;
(d) while the information comprised in the Data is updated regularly, you must take your own steps to ensure that you are satisfied that the information is current;
(e) we do not guarantee that any Software Access will be always free from error and fully functional, and you acknowledge that our software is not designed or intended for use (and must not be relied on) in environments requiring fail-safe performance, including without limitation, as part of a life support, critical, emergency or acute system, process or service.
6. General disclaimers
6.1. To the maximum extent permitted by law:
(a) we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in this EULA, including all implied warranties of merchantability, fitness for purposes or non-infringement;
(b) your use of the Services is entirely your responsibility, and as between you and us, you bear all risk arising from any use of or access to them. We will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on the Services (including the Data and any Software Access);
(c) the Services, Data and any Software Access are made available "as is" and we make no warranties or representations about them, including but not limited to warranties or representations that they will be accurate, current, reliable, timely, available, complete or of a certain quality, or that any data (including the Data) will not be corrupted, free from defects, bugs, viruses, errors or omissions, or other harmful components, or will operate in combination with any other hardware, software, system or data; and
(d) we do not accept any liability for delays, interruptions, service failures and other problems relating to the Services outside of our reasonable control.
7. Security
7.1. If you have been granted Software Access, you will be provided with unique log-in details. You must take security seriously when engaging in Software Access, and you must:
(a) not allow any other person to access the Services using your user credentials;
(b) keep your username and password (or any other access code) secure at all times;
(c) if you think someone else may know your password, change it immediately; and
(d) notify us immediately if you become aware of any unauthorised access to or use of the Services.
7.2. When otherwise accessing or using the Services, you must ensure that the Data is kept secure and is not made accessible to any unauthorised parties.
8. Privacy and data management
8.1. You acknowledge and agree that we will collect, use and handle any personal information about you that is provided to us by you or the Provider in accordance with our Privacy Policy.
8.2. Each time you provide us with your own personal information or upload it via the Services, you are declaring and agreeing that you consent to the collection, storage and use of that information in accordance with our Privacy Policy and as contemplated by this EULA.
8.3. You must not share with us any personal information about other individuals, unless you have first obtained the consent of and provided any notification to that individual in relation to our collection and handling of their personal information, to the extent required by applicable privacy laws.
8.4. We reserve the right to access, maintain, delete or destroy all communications or information uploaded or stored in connection with the Services at any time and in our sole discretion (including to ensure that information complies with this EULA, an Agreement, or any legal requirements).
9. Confidentiality
(a) to maintain the confidentiality of any information that is confidential or proprietary in nature or is designated as such (including without limitation the Data, and any of our software, source code, technology, tools, processes, functional specifications and technical materials on which the Service is based), and which you access via or in connection with the Service, at all times; and
(b) to not disclose, use, transmit, inform or make available to any person any of that confidential information, except as necessary to perform your obligations or exercise your rights under this EULA.
9.2. Clause 9.1 does not apply to any confidential information which you can demonstrate:
(a) is or becomes known to the public through no breach of this EULA;
(b) was previously known to you, or subsequently provided to you, without any obligation to hold it in confidence;
(c) is independently developed by you without the use of confidential information; or
(d) is approved for release by written authorisation of us, but only to the extent of such authorisation.
9.3. You understand and agree that:
(a) we may disclose confidential information that is required by law, regulation or public accountability requirement to be disclosed, but only to the extent and for the purpose of that required disclosure; and
(b) we (and our suppliers and licensors) may transfer, or allow access to, your confidential information to a third-party subcontractor for the purposes of providing the Services, subject to the recipient being bound by appropriate confidentiality obligations. The use of a third-party contractor by us will not relieve us from any obligation or responsibility under this EULA.
10. Intellectual Property
10.1. The intellectual property rights, title and any other interest in the Services (including any Data, our software, modifications, derivative works or parts thereof, or our trademarks) are permanently and irrevocably vested in us or our licensors.
10.2. You acknowledge that part of the information base for our Data has been adapted from the United States Pharmacopeial Convention Inc (USP Convention) USP DI database, USP Convention Inc, with permission of the USP Convention.
10.3. You (or the Provider) retain ownership of all intellectual property rights in materials which are created by you or you provide to us in the course of using the Services (except for any materials we create, modify or adapt in providing the Services).
10.4. If we are provided with any of your material, content or data through or in connection with the Services, you grant us a non-exclusive, non- transferable licence to use, copy and modify that material, content or data for the purpose of providing the Services.
11. Third Parties
11.1. The Services may contain content from, information about, or links to websites, products (including data), services provided by third parties, including the Provider (‘Third Party Products and Services’).
11.2. Such Third Party Products and Services are not owned, operated, endorsed or maintained by us (or affiliated with us), unless this is expressly indicated within the relevant information or links.
11.3. We are not responsible for any Third Party Products and Services that are linked to or identified within the Services, and accept no liability or responsibility for your actions or omissions in relation to such Third Party Products and Services. You should contact the relevant third party directly if you have any queries or concerns regarding the Third Party Products and Services.
12. Liability
12.1. To the maximum extent permitted by law:
(a) neither we nor our licensors or suppliers are liable for any loss, cost, damage or injury arising out of:
(i) the provision of the Services (including the Data), or any other content made available on or via the Services; or
(ii) any use or misuse (by you, the Provider, or a third party) of the Services (including the Data) or any content available on or via the Services; and
(b) all express or implied guarantees, warranties, representations or other terms not contained in this EULA are excluded.
12.2. To the maximum extent permitted by law, we are not in any way liable to any party for any indirect, incidental, special or consequential damages or loss (without limitation including damages for loss of profits, business interruption, loss of information or damage to systems due to viruses or other harmful components) arising from access to and use of the Services.
12.3. Where any guarantee, warranty, term or condition is implied or imposed into this EULA by legislation, and liability for breach cannot be excluded, but can be limited, then our liability for breach of that guarantee, warranty, term or condition is limited to one or more of the following (at our option):
(a) in the case of goods, the replacement of the goods or supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(b) in the case of services, the re-supply of the services, or the payment of the cost of re-supplying the services.
13. Indemnity
13.1. You are liable for, and must compensate us on demand for, all losses, costs, expenses (including legal costs on a full indemnity basis), claims or damage suffered or incurred (or that we agree to pay by way of settlement or compromise) in connection with or arising out of:
(a) a breach of this EULA by you (including a representation or warranty);
(b) fraudulent or dishonest conduct by you;
(c) a failure by you to comply with applicable laws, codes or standards;
(d) personal injury, death or loss of or damage to real or tangible personal property caused by you;
(e) claims, actions or proceedings by a third party and any investigations by a government body in relation to your acts or omissions or the health or other professional services provided by you;
(f) failure to comply with any obligations of confidence or privacy under this EULA, arising out of any of your acts or omissions whether accidental or not; and
(g) use of the Services, including your user-name, log-in details or account by any person other than you.
14. General
14.1. Entire agreement: this EULA comprises the entire agreement that is specifically between you and us in relation to your access to or use of the Services (unless you are party to a Licence Agreement).
14.2. Applicable law: this EULA is governed by the laws of New South Wales, and we and you each submit to the exclusive jurisdiction of those courts.
14.3. Variations and changes: we may revise, change or modify this EULA at any time. Any updates to the EULA will be notified to you and will apply to your access and use from the date of notification. If you do not agree to the changes, you may terminate this EULA and cease accessing or using the Services. Otherwise, continued use of the Services will be considered acceptance by you of the updated EULA.
14.4. Severability: If any of the provisions contained in this EULA are invalid, unenforceable or illegal, the remaining terms will continue to apply.
14.5. Assignment: You must not assign or novate this EULA or otherwise deal with its benefit or a right under it without our prior written consent, which may be withheld at our absolute discretion. We may at any time, without notice to you, novate or assign our rights and obligations under this EULA, and to the extent necessary you hereby consent to such novation, assignment or transfer.
14.6. No waiver: If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.