1.1 The ManageMyHealth™ services are offered and provided by Manage My Health Limited, NZBN: 9429032552072, having its registered office at Level 1, 48 Market Place, Auckland.

1.2 These Terms apply to the access to and use of Services by the Customer and their Permitted Users.

1.3 By signing the Proposal the Customer is deemed to have accepted these Terms.

1.4 These Terms shall apply from the date the Customer signs the Proposal and continue for the Initial Term and any renewal period (as contemplated by this clause 1.4). On the expiry of the Initial Term, the Customer’s subscription to the Software and Services will automatically renew for successive renewal periods of 12 months, unless either party gives written notice of termination in accordance with clause 15.

1.5 These Terms apply to all Software, Services and other products provided by MMH. MMH may introduce and/or offer certain Services, Software, functionality, features or other products (such as Apps) that are also subject to specific terms and conditions in addition to these Terms (“Additional Terms")

1.6 The Customer acknowledges and agrees that in addition to these Terms, the:

• (a) Proposal;

• (b) Terms of Use

• (c) Privacy Policy

• (d) Code of Conduct

• (e) Minimum System Requirements

• (f) any Additional Terms; and

• (g) any other policies in relation to the Services notified to the Customer by MMH from time to time,

• apply to the use of and access to the Services, and form part of the agreement between the Customer and MMH. To the extent there is any inconsistency between the provisions in these Terms and the Proposal, then the provisions of the Proposal will prevail to the extent of any inconsistency or conflict.

1.7 MMH may from time to time amend these Terms by notifying the Customer by email and posting an updated version of these Terms on the Website and/or Portal. MMH will endeavour to provide at least 30 days’ notice of any material amendment before it takes effect. Any use of, or access to, the Services by a Customer or it’s Permitted Users after the effective date of an amendment will constitute deemed acceptance of those changes. If a Customer does not wish to accept an amendment, the Customer is entitled to terminate its access to and use of the Service that is materially affected by the amendment, by providing MMH written notice at any time prior to the effective date of the amendment.

In these Terms, capitalised terms have the meaning given to them in context or as follows:

“Customer” means the Practice, or primary health organisation acting on behalf of its member practices (“PHO”) set out in the Proposal who has contracted with MMH for the provision of the Services.

“Commercial Terms” means the specific commercial terms relating to the Customer’s access to and use of the Software and Services as set out in the Proposal, which may include the number of Permitted Users, the Fees, any fixed or minimum term, the training to be provided by MMH, and any applicable Service Levels.

“Confidential Information” means any information that is proprietary or includes information that is by its nature confidential, marked “confidential”, “in confidence” or similar; is provided by either party, a Permitted User, or a third party in confidence (including Practice Data); either party knows, or ought to know, is confidential or is of a sensitive nature or commercially sensitive to either party, which for the avoidance of doubt includes the Commercial Terms.

“Fees” means all fees payable by the Customer to MMH in connection with the Software and Services, including set up and implementation costs, training, travel expenses, support and maintenance fees, and the licence fees payable for the Customer’s use of and access to the Services, as set out in the Proposal.

“Initial Term” means the initial term of the Customer’s subscription to the Software and Services as set out in the Proposal (if any). If no initial term is specified in the Proposal, the initial term will be deemed to be 12 months from the date the Proposal is signed by the Customer.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Patient” means any patient enrolled in a Practice associated with a Customer.

“Permitted Users” means staff and patients of the Customer, and staff and patients of any Practice which has contracted with the Customer, nominated by the Customer from time to time to access and use the Services.

“Practice” means a general medical practice or health provider organisation providing primary health care services.

“Practice Data” means any data that MMH is provided access to under these Terms by Permitted Users, or which is otherwise generated, compiled, arranged, developed, processed or stored by the Customer, Patients or Permitted Users through use of the Software and Services, and includes any personal information.

“Proposal” means the proposal letter provided by MMH or Medtech to the Customer setting out the Commercial Terms relating to the provision of Software and Services by MMH to the Customer and which the Customer signs (physically or electronically) to confirm their acceptance of the terms relevant to the provision of the Services and their approval to proceed with implementation of the Software and Services.

“Privacy Law” means the Privacy Act 2020 and any regulation and/or code of practice issued under it.

“Privacy Policy” means our Privacy Policy available on our Website and Application, as may be amended from time to time.

“Software” means the online ManageMyHealth™ software, tools and applications owned by, or licensed to MMH, and provided by MMH to the Customer as part of the Services.

“Services” means the ManageMyHealth™ hosted software as a service solution provided by MMH for use by Practices and Patients to help manage primary health services, and includes any other supplementary products or services provided by MMH to the Customer as set out in the Proposal or as otherwise agreed between the parties.

“Service Specification” means the description and specifications of the Software and Services available from MMH.

“Service Levels” means the service levels (if any) that MMH will use reasonable endeavours to meet in relation to the provision of the Services.

3.1 In consideration for payment of the Fees, MMH grants to the Customer a non-exclusive, non-transferable and revocable licence for the Customer and its Permitted Users to access and use the Services in accordance with these Terms.

3.2 The Customer’s rights to access and use the Services will continue for the term specified in the Proposal (if any) or until terminated in accordance with these Terms, whichever occurs earlier.

4.1 The Customer must, and must procure that all Permitted Users:

• (a) keep all passwords and account log in details required to access the Services secure and confidential;

• (b) not share any individual password, login information or other security related information with any other person that may allow them to access and use the Services;

• (c) only access and use the Services in accordance with these Terms;

• (d) ensure at all times that every Practice meets the Minimum System Requirements;

• (e) ensure its use of the Services complies at all times with all applicable laws and regulations relating to the use of the Services, including Privacy Law.

4.2 The Customer may appoint and replace Permitted Users to access and use the Services, and in doing so the Customer:

• (a) procures that each and all Permitted Users is aware of, accepts and complies with, these Terms in relation to the use of the Services (including any update or amendment to these Terms);

• (b) must take all reasonable steps to monitor and enforce Permitted Users’ compliance with these Terms; and

• (c) acknowledges and agrees that it will be responsible and liable for all acts and/or omissions of any Permitted User as if it undertook those acts or omission itself.

4.3 The Customer must notify MMH immediately on becoming aware of any unauthorised access or use of the Service and/or any breach of these Terms by the Customer or any Permitted User.

5.1 The Customer must not, and must procure that its Permitted Users do not:

• (a) copy, modify, duplicate, decompile or reverse engineer any part of the Services by any means;

• (b) assist any unauthorised third party in obtaining, or attempting to obtain, access to the Services;

• (c) tamper or otherwise interfere, impair or otherwise adversely affect the operation of the Software;

• (d) introduce any malicious code, virus, worm or trojan into the Software;

• (e) upload any data into the Software that infringes the Intellectual Property Rights of any person or is otherwise unlawful or not permitted by law.

6.1 MMH will provide training on the use of the Software to Permitted Users in accordance with the Commercial Terms. Any additional training requested by a Customer beyond the scope of that set out in the Proposal will be provided in MMH’s sole discretion at MMH’s then standard rates (or as otherwise expressly agreed in the Proposal).

6.2 MMH will provide set-up and implementation services to the Customer in accordance with the Commercial Terms.

7.1 MMH will make the Software and Services available to the Customer and their Permitted Users in accordance the Service Specification and any applicable Service Levels.

7.2 MMH may from time to time modify and enhance the Software and/or Services for the purpose of correcting any errors and/or introducing, improving and enhancing new features and functionality (Updates). The Customer must, and/or must procure that its Permitted Users, promptly install any new Update which MMH makes available.

7.3 MMH will endeavour to notify the Customer in advance of any scheduled or planned maintenance or unavailability of the Service which may impact the functionality or use of the Software or Services.

7.4 MMH will not be liable to any person for any disruption or unavailability of the Software or Services due to any cause outside of MMH’s control, including a denial of service attack, malicious virus, criminal internet activity, or third party network outage.

7.5 MMH will provide remote technical support in relation to the Software and Services to the Customer’s nominated technical contact(s) (as notified to and agreed by MMH from time to time) during the support hours of 9.00am to 5.00pm Monday to Friday, excluding public holidays. Any request for technical assistance must be submitted to MMH via email to nzsupport@mmhglobal.com or telephone on 0800 664 123 (Service Request).

7.6 MMH will respond to a Service Request in accordance with the Service Levels, or if no Service Levels apply the provision of the Services, MMH will use reasonable efforts to respond to a Service Request within five (5) days of receipt of the Service Request. MMH shall not be obliged to provide technical support for difficulties or queries resulting from any breach of these Terms by the Customer or its Permitted Users or any cause outside of MMH’s control.

7.7 The Customer will promptly provide all reasonable co-operation and assistance to MMH in investigating and responding to a Service Request, including providing MMH with access to the Customer’s or a Practice’s systems, data or personnel as necessary.

7.8 MMH may interrupt or suspend access to or use of the Software and/or Services at any time for any duration of time, without liability, where reasonably necessary for security purposes or to prevent any improper or unlawful use of the Services.

8.1 In consideration for the rights granted under these Terms, the Customer will pay to MMH the Fees.

8.2 All Fees are exclusive of GST, and all other taxes, duties and surcharges payable in respect of the Software and Services. Any applicable GST or other taxes and duties applicable to the Services must be paid by the Customer to MMH in addition to the Fees.

8.3 All invoices for payment of Fees must be paid by the Customer to MMH via direct debit (or such other payment method approved by MMH in writing) by the 20th of the month following the date of the invoice. The Customer authorises MMH to charge the amounts owing under these Terms to the account nominated by the Customer on the Direct Debit Authority it signed and returned to MMH. If any direct debit initiated by MMH is dishonoured for whatever reason, the Customer must upon receipt of an invoice, immediately pay to MMH the outstanding Fees and any applicable dishonour fee.

8.4 MMH reserves the right to charge the Customer interest in respect of any late payment of Fees at the rate of 2% per annum above the prime lending rate from time to time of Westpac New Zealand Limited from the due date of payment until payment is received in full by MMH. The Customer will, on demand, reimburse MMH for all reasonable expenses incurred by MMH in enforcing payment of any amounts owed under these Terms.

8.5 MMH may, no more than once per calendar year, undertake a review of the Fees. Any change to the Fees will:

• (a) be proportionate with the Consumer Price Index movement in New Zealand in the preceding 12 month period; and

• (b) take effect from the date that is 14 days following the date that MMH notifies the Customer of the change in Fees.

9.1 The parties acknowledge and confirm that all Practice Data stored by MMH as part of the Services shall be owned by and remain the sole and exclusive property of the respective Practice that supplied, collected, generated or has responsibility for it. The Practice shall be responsible for the legality, reliability, integrity, accuracy and quality of the Practice Data.

9.2 MMH will not use, store, disclose or otherwise deal with the Practice Data except as required to perform the Services in accordance with these Terms or as expressly authorised in writing by the relevant Practice.

9.3 The Customer acknowledges and agrees that for the purposes of Privacy Law, personal information (as such term is defined in Privacy Law) contained within the Practice Data is processed and held by MMH as an agent of the Practice, and MMH does not use or disclose such personal information for its own purposes.

9.4 The Customer is responsible for ensuring that all necessary individual consents and authorisations required under Privacy Law are obtained and maintained to enable MMH to process and store Practice Data in accordance with these Terms.

9.5 MMH will comply with its obligations under Privacy Law in relation to the processing and storage of personal information contained within the Practice Data. MMH confirms that Practice Data will be hosted in a New Zealand data centre.

10. The Customer must, and must procure that all Permitted Users, comply with Privacy Law and the MMH Privacy Policy in relation to personal information, and will not do or omit to do anything that may cause MMH to breach its obligations under Privacy Law.

11.1 Each party confirms that it has adequate security measures to protect the other party's Confidential Information from unauthorised access, or use by third parties, and that it will not use or disclose the other party's Confidential Information to any person or organisation other than:

• (a) to the extent that use or disclosure is necessary for the purposes contemplated by these Terms;

• (b) with the other party’s prior written consent;

• (c) if the use or disclosure is required by law; or

• (d) in relation to disclosure, if the information has already become public, other than through a breach of the obligation of confidentiality by one of the parties.

11.2 Each party will ensure that its employees, contractors, agents and representatives (and in the case of the Customer, its Permitted Users) who have knowledge of any Confidential Information are aware of the confidentiality obligations in these Terms and do not use or disclose any of the other party's Confidential Information except as permitted under these Terms. The Customer will be responsible and liable for any unauthorised disclosure of Confidential Information by its employees, contractors, agents, representatives and Permitted Users.

12.1 The Software and Services contain confidential information of MMH (and/or its licensors) and all copyright, trademarks and all other Intellectual Property Rights in the Software and/or Services are the exclusive property of MMH (and/or its licensors).

12.2 These Terms do not transfer to the Customer or any Permitted User any right, entitlement or ownership in respect of the Software and/or Services other than the rights of usage expressly contemplated by these Terms.

12.3 The Customer shall not, and shall procure that all Permitted Users do not, at any time directly or indirectly challenge or contest the ownership of the Software and/or Services (including all Intellectual Property Rights of MMH and/or its licensors).

12.4 MMH indemnifies the Customer against any claim or proceeding brought against the Customer to the extent that claim or proceeding alleges that the Customer’s use of the Service in accordance with these Terms constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Customer:

• (a) promptly notifying MMH in writing of the IP Claim;

• (b) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without MMH’s prior written consent; and

• (c) giving MMH complete authority and information required for MMH to conduct and/or settle the negotiations and litigation relating to the IP Claim.

12.5 The Customer is responsible and liable for any content that it, a Practice or any Permitted User uploads using the Services and must ensure that such content complies with the Code of Conduct, and without limiting the Code of Conduct does not:

• (a) infringe any intellectual property rights of any third party;

• (b) infringe the privacy rights of any third party;

• (c) detrimentally affect the brand or reputation of ManageMyHealth™, MMH or any affiliates or partners of MMH;

• (d) mislead as to the nature, type, service or benefits of the any content;

• (e) contain inaccurate, ambiguous, exaggerated, defamatory, untrue, or out of date information;

• (f) encourage, counsel, incite or suggest any criminal or unlawful acts;

• (g) seek to take advantage of any individual or and individual groups by virtue of their circumstances;

• (h) contain vulgar and/or suggestive languages or images or innuendo or slang of a sexual, immoral, racial or violent nature; and/or

• (i) promote or provide inflammatory or demeaning opinions of an individual or group.

12.6 MMH does not actively police or monitor content uploaded via its Services but reserves the right to remove or edit any such content at its sole discretion and without notice, regardless of whether or not it is, in the opinion of any third party, in breach of these Terms.

13.1 Each party warrants and represents that it has full power and authority to enter into and perform its obligations under these Terms.

13.2 MMH warrants and represents that:

• (a) the Services will perform in all material respects with the Service Specification;

• (b) the Customer’s use of and access to the Services will not infringe the Intellectual Property Rights of any third party; and

• (c) it will perform the Services with due care and skill, in a timely, diligent and professional manner.

13.3 The Services are only warranted to the extent expressly specified in these Terms. The Customer acknowledges and agrees that all statutory and implied conditions and warranties are excluded to the fullest extent permitted by law (including those under the Contract and Commercial Law Act 2017).

13.4 Without limiting clause 13.3, MMH does not warrant:

• (a) that the Service will be uninterrupted or error free;

• (b) that the Software will interoperate or be compatible with any other software or systems used by the Customer or a Permitted User (other than expressly set out in the Service Specification);

• (c) that the Service will be fit for purpose or meet the Customer’s or any Permitted Users’ requirements.

13.5 The Customer acknowledges and confirms that the Services are supplied and acquired in trade for business purposes, and agrees that the Consumer Guarantees Act 1993 does not apply to the supply of the Services.

14.1 To the extent permitted by law, neither party shall be liable to the other for any indirect or consequential loss, cost, expense, claim or liability incurred or suffered by the other party or any third party in connection with the Software or Services supplied under these Terms, including loss of profit, corruption or loss of data, loss of business, loss of opportunity, or loss of revenue, even if such loss was reasonably foreseeable or the first party had been advised of the possibility of the other party incurring such loss.

14.2 Subject to 14.1, neither party’s liability under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall exceed an amount equal to the total value of Fees paid or payable to MMH in the 12 months prior to the action giving rise to the claim.

14.3 The Customer agrees to indemnify and keep indemnified MMH from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by MMH from any person arising out of or in connection with the Customer’s or any Permitted Users’ use of the Service or a failure to comply with these Terms.

15.1 Without limiting any other right or remedy under these Terms, MMH reserves the right to suspend access to or use of the Software and/or Services (or any part of the Services) by the Customer or any Permitted User, if MMH reasonably believes that the Customer or any Permitted User is in breach of any of these Terms or the Customer fails to pay any Fees owing to MMH by the due date for payment. MMH will endeavour to provide the Customer five (5) days’ notice of its intention to suspend the Services or any part of the Services together with the reasons for such suspension.

15.2 MMH may, in its sole discretion, by written notice, immediately terminate access to the Software and supply of the Services if the Customer or any Permitted User:

• (a) breaches any term or obligation under these Terms and such breach is not capable of being remedied, or if such breach is capable of being remedied, fails to remedy such breach within 10 days of receiving notice from MMH requiring it to remedy such breach; or

• (b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

15.3 The Customer may, by written notice, terminate their access and use of the Software and Services:

• (a) pursuant to clause 1.5;

• (b) if MMH breaches a material obligation under these Terms and such breach is not capable of being remedied, or if such breach is capable of being remedied, fails to remedy such breach within 10 days of receiving notice from the Customer requiring it to remedy such breach;

• (c) if MMH becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

• (d) a Force Majeure Event occurs which prevents MMH from complying with or performing its obligations under these Terms for a period of more than 60 continuous days.

15.4 Either party may, after the Initial Term, terminate access and use of the Software and Services for any reason without cause by providing the other party at least 30 days’ written notice.

15.5 Termination or expiry of these Terms does not affect either party’s rights and obligations that accrued prior to termination or expiry.

15.6 Upon termination or expiry of the Services for any reason:

• (a) the Customer’s and all Permitted Users’ right to access and use the Software and Services shall cease immediately;

• (b) all Fees relating to the Customer’s and Permitted Users’ access to, and use of, the Services up to the date of termination must be paid in full.

15.7 The Customer (or, if applicable, any Practice) may within one month following the date of termination or expiry, request a copy of any Practice Data stored as part of the Services, provided that the Customer pays MMH’s reasonable costs of providing such copy in a common electronic form. MMH does not warrant that the format of the Practice Data will be compatible with any software. If MMH has not received a request for a copy of Practice Data within one month following the date of termination or expiry, MMH will use reasonable endeavours to delete all Practice Data held in its possession or control.

16.1 Notices: Any notices to a party under this Agreement must be delivered by hand or sent by post, courier or email to the party’s address specified in the Proposal or as otherwise notified to the other party in writing from time to time. A notice is deemed to be received if:

• (a) delivered by hand or by courier, on the date it is delivered;

• (b) sent by post within New Zealand, on the third working day after the date it was sent; or

• (c) sent by email, at the time the email enters the recipient's information system provided it is not returned undelivered or as an error.

A notice received after 5pm on a working day, or on a day that is not a working day, will be considered to be received on the next working day.

16.2 Third party beneficiaries: Nothing in these Terms is intended to confer, or be construed to confer, any benefit on, or create any obligation enforceable by, any person who is not a party to these Terms, whether under the Part 2, Subpart 1 of the Contract and Commercial Law Act 2017 or otherwise.

16.3 Disputes: The parties agree to act in good faith and use all reasonable endeavours to resolve any dispute that may arise in connection with these Terms or the use of the Services. If the parties are unable to resolve the dispute on mutually acceptance terms within a reasonable period of time, either party may refer the dispute to mediation by written notice to the other party. Such mediation will be undertaken in accordance with the Resolution Institute’s Mediation Rules. Nothing in clause shall prevent either party from seeking urgent interlocutory and/or injunctive relief.

16.4 Assignment: The Customer must not assign, transfer or novate any or all of its rights or obligations under these Terms without MMH’s prior written consent. MMH may assign, transfer or novate any or all of its rights or obligations under these Terms without the consent of the Customer or any other party.

16.5 Validity: In the event that part or all of any provision of these Terms is illegal or unenforceable, such provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision (or part of it) cannot be interpreted in that way, the provision (or part of it) will be severed from these Terms and the remaining provisions will continue in full force and effect.

16.6 Relationship: Nothing in these Terms shall constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party, and neither party shall make any contrary representation to any other person.

16.7 Waiver: No waiver of any breach or failure to enforce any provision, of these Terms at any time by either party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with these Terms.

16.8 Entire Agreement: These Terms, together with the Proposal and all documents referenced in clause 1.5, records the entire arrangement between the parties relating to the Services and supersedes all previous arrangements, whether written, oral or both, relating to such matters.

16.9 Governing Law: New Zealand law will govern these Terms. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the New Zealand courts.