For Prescribers

These Terms (“Terms”) set out the governing terms and conditions of MDS’s provision of the Services to Customer, including Customer’s access to, and use of the MediSecure® ETP Exchange (“ETP Exchange”) and the Real Time Prescription Monitoring tool (“RTPM”).

1 Recitals

1.1 MDS operates a secure, open, independent, standards conformant, business-to-business, internet-based e-Prescription trading exchange built expressly for the Australian health system and provides various services relating to that marketplace and value added e-commerce applications.

1.2 Customer wishes to obtain a licence of the MDS Intellectual Property to enable it to use the Services and MDS agrees to grant Customer a licence for the purpose of Customer using the Services. 1.3 MDS and Customer agree that the Services will be provided, and Customer’s participation in and use of ETP Exchange and RTPM will be on these Terms.

2 Acceptance and Amendment

2.1 Customer Accepts the conditions of these Terms. Customer will be deemed to have Accepted the conditions of these Terms by installing the Software and the Term will commence on Acceptance of these Terms.

2.2 MDS may amend these Terms at any time by providing 30 days’ Notice to Customer by publishing the amendments on the MDS website (www.medisecure.com.au) and/or by providing Notice to Customer. Customer will be deemed to have Accepted any such amendment by obtaining or using the Services after the expiry of the 30 day Notice period.

3 Term

3.1 These Terms will commence upon Acceptance by both parties in accordance with the Acceptance clause contained in 2.1.

3.2 Customer’s right to use the licence will continue for the Period of Services. After expiration of the Period of Services, the Term will automatically renew and continue until terminated in accordance with these Terms.

4 Scope and Structure

4.1 These Terms set out the agreed terms and conditions of MDS’s provision of the Services to Customer (including Customer’s access to, and use of ETP Exchange and RTPM).

4.2 Unless otherwise specified, MDS does not control the quality or availability of Prescriptions accessed through the Services and MDS takes no responsibility for the quality, availability, fitness for purpose or accuracy of data of any such Prescription.

5 Licence

5.1 MDS grants to Customer a licence to use the MDS Intellectual Property for the purposes of the Customer obtaining the Services and Customer is prohibited from using the licence for any other purpose.

5.2 This licence will terminate in accordance with these Terms.

6 Link to NPDR and MHR

6.1 Customer appoints MDS in its capacity as a CSP to link Customers’ IT systems and patient records to both the NPDR and MHR.

6.2 Customer warrants to MDS that it has completed the form supplied by the Department of Human Services, Medicare, being Form 4717.1211 or its replacement, described as “Application to Link or Unlink a Contracted Service Provider to or from a Health Organisation Record” and delivered the completed form to MDS.

6.3 Customer acknowledges that until it has complied with 6.2 its records will not be linked to the MHR or NPDR via MDS.

7 Representations and Warranties

7.1 Customer represents and warrants Customer is authorised to install Software and bind the Customer by these Terms.

7.2 Customer represents and warrants to MDS that in using the Services Customer will:

(a) Comply with all applicable laws, including the Competition and Consumer Act 2010 and State fair trading legislation;

(b) Obtain and record patient’s informed consent in accordance with the MDS Patient Consent Protocol before sending a patient’s Prescription electronically using any MDS Service and not direct any Personal Information to any third party where a patient has not given their informed consent or has withdrawn their informed consent;

(c) Only nominate for forwarding Prescription messages to any third party service including the MHR and/or the NPDR, patients who have given informed consent for use of such a service and include the patient consent flag in the Prescription message delivered to the MDS Services;

(d) Ensure that any Personal Information disclosed to MDS, is entitled to be received, used and disclosed in accordance with these Terms and the MDS Privacy Policy, and not do anything that would cause MDS to be in breach of the Privacy Act 1988 (Cth);

(e) Provide such information to MDS as is reasonably necessary for MDS to provide or make available the Services and use reasonable endeavours to ensure that this information is accurate and complete and delivered to MDS in a timely manner;

(f) Not intentionally, recklessly or negligently interfere with Other Customers’ use of the Services;

(g) Ensure that all Authorised Users undertake any training required by MDS relating to any MDS Service;

(h) Inform MDS within seven (7) calendar days of the sale or transfer of Customer’s business;

(i) Use commercially reasonable endeavours to ensure that the Services provided by MDS are protected from unauthorised access, use, or destruction at all times; and

(j) Inform MDS as soon as practicable if Customer suspects there has been unauthorised access to any of the MDS Services.

8 MDS’s Obligations

8.1 In providing the Services, MDS will:

(a) Comply with all applicable laws, including the Competition and Consumer Act 2010 and State fair trading legislation; and

(b) Perform the Services with reasonable care and skill and conforms with industry standards as published by Standards Australia.

9 Disclaimer

9.1 Except for the express terms of these Terms and any Prescribed Terms, MDS makes no warranties with respect to its performance of the Services and expressly excludes all conditions, warranties and terms which would otherwise be implied by law, conduct or otherwise be included in these Terms. To the extent permitted by law, MDS limits its liability for a breach of any Prescribed Terms at its option to the repair or re-supply of the relevant Prescription or Prescriptions.

10 Limitation of Liability

10.1 Notwithstanding any other provision of these Terms, to the maximum extent permitted by law:

(a) In no circumstances will either party be liable to the other for any indirect or consequential loss, damage, liability, costs or expenses (including loss of profits, transaction losses, opportunity costs, interruption of business, loss of use, loss of goodwill or loss or corruption of data) arising out of or in connection with these Terms, whether such liability arises under contract, tort (including negligence), law or otherwise; and

(b) MDS’s total aggregate liability to Customer under or in connection with these Terms for all loss, damage, liability, costs or expenses of a kind not excluded by paragraph (a), whether arising under contract, tort (including negligence), law or otherwise is limited to an amount not exceeding the Fees paid by Customer during the 12 months prior to the date on which the claim arose less any amount previously paid by MDS to Customer in relation to a claim under these Terms, or $1000, whichever is higher.

11 MDS Intellectual Property

11.1 Customer acknowledges that as between Customer and MDS, MDS owns all Intellectual Property (other than any Third Party Intellectual Property) subsisting within ETP Exchange and RTPM (including the design of ETP Exchange and RTPM) or subsisting in any content or material created, or made available, by MDS in the provision of the Services (“MDS Intellectual Property”).

11.2 Subject to Termination, MDS grants Customer a royalty free, nonexclusive, non-transferable licence to use the MDS Intellectual Property and the Third Party Intellectual Property to the extent necessary for it to use the Services (including ETP Exchange and RTPM) in accordance with these Terms. Customer is expressly prohibited from using the MDS Intellectual Property for any other purpose.

11.3 Apart from any incidental use arising as a result of Customer’s exercise of the licence contained in clause 5 .1, Customer must not use the name, logo or associated trademarks of MDS without the express written approval of MDS (which approval may be given on such conditions as MDS thinks fit including the condition that Customer will comply with MDS’s trademark guidelines).

11.4 Other than as provided in this clause, nothing in these Terms gives Customer any right, title or interest in or to the MDS Intellectual Property.

12 Confidential Information

12.1 Customer shall hold all MDS Confidential Information in confidence and shall use such information only for the purposes of and in accordance with these Terms.

12.2 Customer agrees not to disclose MDS Confidential Information to any third party without the prior written approval of MDS.

12.3 The obligation to protect the confidentiality of MDS Confidential Information shall be effective for an indefinite period and continue after the date of Termination.

12.4 Nothing in these Terms shall prohibit or limit either Customer’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies):

(a) Previously known to it without an obligation of confidence;

(b) Acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; or

(c) Which is or becomes publicly available through no breach of these Terms.

13 Termination for Convenience

13.1 Customer or MDS may Terminate these Terms at any time by providing ninety (90) days’ written Notice of termination to the other party.

14 Termination for Cause

14.1 Either party may Terminate these Terms immediately by written Notice to the other party if:

(a) The other party is in material breach of these Terms and, if capable of remedy, has failed to remedy such breach within 30 days of receiving Notice to do so; or

(b) The other party becomes insolvent, has a receiver or receiver and manager appointed, enters into liquidation, provisional liquidation or administration, is subject to an arrangement with its creditors, fails to comply with a statutory demand, is otherwise unable to pay its debts when they fall due or something having a similar effect to the foregoing happens in connection with the party.

15 Consequences of Termination

15.1 Upon Termination of these Terms:

(a) MDS will revoke all means of access to ETP Exchange and RTPM, including the Customer ID and Password and will provide direction to Customer on disengaging from ETP Exchange and RTPM; and

(b) Customer will cease to use ETP Exchange and RTPM and return all material that is the property of MDS.

16 Acknowledgments and Rules of Use

16.1 Customer acknowledges and agrees that:

(a) Unless otherwise specified, MDS has no responsibility for the terms or content of any Prescription created by Customer for the ETP Exchange or RTPM; and

(b) Customer is responsible for:

i. The Transactions into which Customer decides to enter and their performance;

ii. Ensuring Customer’s compliance with the law; and

(c) Customer enters into any Transaction after receiving its own advice and considering its own legal position; and

(d) MDS is not liable for any deficiencies in the performance of the Services or any loss incurred by Customer arising as a result of any information supplied by Customer or any Other Customer to MDS being inaccurate, incomplete or late; and

(e) Customer shall use current MDS-certified clinical desktop prescribing software, maintaining version upgrades as released from time to time.

16.2 MDS undertakes to treat Prescriptions and any other data provided by Customer as Confidential Information and not to disclose the same in such a way that the source of the data can be identified as Customer, unless MDS has a legal requirement to disclose or Customer provides specific written permission to do so.

17 Publicity

17.1 Customer may not make press or other announcements or releases relating to MDS or these Terms and the Transactions effected through ETP Exchange and RTPM without the prior written approval of MDS as to the content, form and manner of the announcement or release.

17.2 Where Customer is required by law to disclose such as under the continuous disclosure regime under the Corporations Law, clause 17.1 applies to the extent permitted by law.

17.3 MDS may promote the fact that Customer is a customer of MDS and uses ETP Exchange or RTPM. With the prior written approval of Customer, Customer licenses MDS to use Customer’s trademarks strictly in accordance with Customer’s trademark policies and requirements, as notified by Customer to MDS as part of such promotion.

18 Survival of Terms

18.1 Clauses 7, 10, 11, 12, 17 and this clause 18 of these Terms survive Termination.

18.2 Expiry or Termination in accordance with these Terms will not affect the accrued rights of the parties.

19 Assignment

19.1 Customer may not assign these Terms in whole or in part or delegate or sublicense its rights under these Terms (other than to Authorised Users) without the prior written consent of MDS (which will not be unreasonably withheld).

19.2 MDS may assign or novate these Terms in whole or in part or sublicense its rights and obligations under these Terms at any time after 30 days’ Notice to Customer.

19.3 MDS may assign or novate these Terms in whole or in part to a Related Body Corporate without the consent of Customer.

20 Entire Terms

20.1 These Terms constitutes the entire agreement of the parties about its subject matter and supersedes all previous Terms, understandings and negotiations on that subject matter.

21 Severability

21.1 In the event that any provision contained in these Terms should be found to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the validity, legality or enforceability of the remaining provisions contained in these Terms shall not in any way be affected or impaired by such a finding, except to the extent necessary to give effect or meaning to those remaining provisions.

22 Governing Law and Jurisdiction

22.1 These Terms will be governed by the laws in force in the State of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that State.

23 Communications

23.1 Customer consents to receiving Communications from MDS regarding MDS’s products and services or any other products or services that MDS believes may be of interest to Customer, unless MDS is informed directly by Customer to the contrary. The following clauses 24, 25 and 26 are only applicable if RTPM is installed.

24 General: RTPM

24.1 RTPM is only available with version 3 of the ETP Exchange or greater.

24.2 Customer will ensure that patient consent obtained pursuant to 7.2 (b) includes consent to make available to any prescriber the patient consults, the data in respect of any Prescription for medicines prescribed in the designated class.

24.3 Customer acknowledges that full benefit of the functionality of RTPM, is dependent on the exclusive use of version 3 of the ETP Exchange or greater by the Customer.

25 Representations and Warranties: RTPM

25.1 Customer represents and warrants to MDS that in using RTPM Customer will:

(a) Acknowledge RTPM is an electronic aid for the assistance of prescribers in treating patients who seek multiple Prescriptions of medicines in a particular class and is in no way intended to substitute for the exercise of professional judgment on the part of the prescriber;

(b) Acknowledge the information produced by RTPM is reflective of the data held by MDS and may not comprise all Prescriptions issued to the patient;

(c) Acknowledge that RTPM will not produce data or assist in the treatment of patients with multiple Prescriptions that are not of a particular class, it operates in respect of medicines that have been so designated; and

(d) Ensure all prescribers working in or associated with the Customer will read any applicable RTPM training materials produced by MDS.

26 MDS’s Obligations: RTPM

26.1 MDS will maintain the RTPM database in respect of the class of designated medicines, for patients who consult Customer for a Prescription for such medicines, when Customer is using version 3 of the ETP Exchange with RTPM installed

26.2 MDS will endeavour to provide RTPM to the Customer 24 hours per day, 7 days per week.

26.3 MDS will foster and encourage the use of RTPM by general practitioners to give RTPM greater utility for Customer.

27 Definitions

These meanings apply in these Terms unless the contrary intention appears:

Acceptance has the meaning contained in clause 2.1.

Authorised Users means agents, advisers, contractors or personnel of Customer whom Customer has authorised to use the Customer ID and Password on its behalf.

Communications means Electronic Messages, mail by post, facsimile transmission, in person or by telephone.

Confidential Information means any information identified, orally or in writing, by the disclosing Party as confidential or which is otherwise confidential by its nature and includes MDS Confidential Information.

CSP means a Contracted Service Provider registered as such with the Health Identifiers Service.

Customer means the individual, prescriber and/or practice who has installed and/or is using the MDS Services and is bound by these terms and conditions.

Customer ID means the identification code assigned to Customer by MDS.

Electronic Messages has the same meaning as in section 5 of the Spam Act 2003.

e-Script, e-Prescription or Electronic Prescription means any Prescription in electronic form that complies with the then prevailing standards and includes all information and an approved digital signature so as to be accepted as an electronic representation of a paper based Prescription as defined in the relevant state and Commonwealth legislation.

ETP Exchange means the MDS Prescription Exchange Services (“PES”) which collects Electronic Prescriptions (“e-Scripts”) from medical practitioners and other registered prescribers, stores these e-Scripts in a secure repository called the MDS Script Vault®, validates a Prescription identifier presented to a pharmacy and securely downloads the e-Script into the pharmacy dispensing software for dispensing by the pharmacy. The ETP Exchange collects a message from the dispensing system to acknowledge that the eScript has been dispensed and stores any repeat e-Script for future dispensing.

Intellectual Property means all rights conferred under statute, common law and equity in or in relation to inventions (including patents), copyright and neighbouring rights, registered and unregistered designs, logos and get up, circuit layouts, trademarks, know-how and includes applications and the right to make applications for all of the above, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

MDS means MediSecure.

MDS Confidential Information means any information supplied to Customer by MDS relating to these Terms (whether supplied before, on or after the date of these Terms and including the Customer ID and Password) and information supplied to Customer relating to the Services provided by MDS which MDS treats, or may reasonably be expected to treat, as confidential.

MDS Intellectual Property has the meaning set out in clause 11.1.

MDS Patient Consent Protocol means the consent protocol contained on the MDS website and recommended to be implemented by Customer prior to using any MDS Service.

MHR means the My Health Record and any related service operated in accordance with the relevant Commonwealth and State legislation, previously known as the Personally Controlled Electronic Health Record (PCEHR).

Notice means written Notice and includes Notice delivered in person, by courier, by post, electronic mail or facsimile.

NPDR means the National Prescribing and Dispensing Repository service which is part of the national ehealth infrastructure under development by the National E-Health Transition Authority as a registered repository for medicines information of consenting patients and is operated in accordance with the relevant Commonwealth and State legislation.

Other Customer means a registered customer of MDS who has entered into similar Terms to these Terms or other form of Terms approved by MDS (but excludes Customer).

Other Customer Confidential Information means any Confidential Information supplied to MDS by an Other Customer relating to the use of ETP Exchange and RTPM which Other Customer treats, or may reasonably be expected to treat, as confidential.

Password means the password assigned to Customer by MDS.

Period of Services means MDS will provide Customer with a licence to use ETP Exchange for a period of 24 months.

Personal Information means information about a person that is ‘personal information’ as defined in the Privacy Act 1988.

Prescribed Terms means any terms, conditions, or warranties implied by law into contracts for the supply of goods or services including Prescriptions that cannot be excluded.

Prescription has the same meaning as in section 4 of the National Health (Claims and under co-payment data) Rules 2012.

Related Body Corporate has the same meaning as in section 50 of the Corporations Act 2001.

RTPM means the additional technology available with version 3 of the ETP Exchange, delivering real time alerts at the point of prescribing for medicines of a particular class.

Services means the services MDS may provide or make available to Customer (and Other Customers) under these Terms including the ETP Exchange and RTPM. Services commence upon installation of the Software.

Software means the ETP Exchange and the RTPM technology.

Term means the Period of Services subject to Termination, which will automatically renew upon expiration of the Period of Services.

Terms means these Terms and Conditions.

Termination has the meaning set out in clauses 13.1 and 14.1.

Third Party Intellectual Property means Intellectual Property owned by a third party, which is required to be used in connection with the Services.

Transaction means the creation and sending of an e-Script from the clinical desktop or other software application to the ETP Exchange and includes the process of identifying the particular Prescription, application of an approved or registered digital signature on the e-Script and a validating receipt that the e-Script is in the secure storage facility within the ETP Exchange.

For Pharmacists

These Terms (“Terms”) set out the governing terms and conditions of MDS’s provision of the Services to Customer, including Customer’s access to, and use of the MediSecure® ETP Exchange (“ETP Exchange”).

1. Recitals

1.1 MDS operates a secure, open, independent, standards conformant, business-to-business, internet-based e-Prescription trading exchange built expressly for the Australian health system and provides various services relating to that marketplace and value added e-commerce applications.

1.2 Customer wishes to obtain a licence of the MDS Intellectual Property to enable it to use the Services and MDS agrees to grant Customer a licence for the purpose of Customer using the Services.

1.3 MDS and Customer agree that the Services will be provided, and Customer’s participation in and use of ETP Exchange will be on these Terms.

2. Acceptance and Amendment

2.1 Customer Accepts the conditions of these Terms. Customer will be deemed to have Accepted the conditions of these Terms by installing the Software and the Term will commence on Acceptance of these Terms. Customer specifically agrees to use ETP Exchange as the channel for the collection of electronic Prescriptions wherever possible.

2.2 MDS may amend these Terms at any time by providing 30 days’ Notice to Customer by publishing the amendments on the MDS website (www.medisecure.com.au) and/or by providing Notice to Customer. Customer will be deemed to have Accepted any such amendment by obtaining or using the Services after the expiry of the 30 day Notice period.

3. Term

3.1 These Terms will commence upon Acceptance by both parties in accordance with the Acceptance clause contained in 2.1.

3.2 Customer’s right to use the licence will continue for the Period of Services. After the expiration of the Period of Services, the Term will automatically renew and continue until terminated, in accordance with these Terms.

4. Scope and Structure

4.1 These Terms set out the agreed terms and conditions of MDS’s provision of the Services to Customer (including Customer’s access to, and use of ETP Exchange).

4.2 Unless otherwise specified, MDS does not control the quality or availability of Prescriptions accessed through the Services and MDS takes no responsibility for the quality, availability, fitness for purpose or accuracy of data of any such Prescription.

5. Licence

5.1 MDS grants to Customer a licence to use the MDS Intellectual Property for the purposes of the Customer obtaining the Services and Customer is prohibited from using the licence for any other purpose.

5.2 This licence will terminate in accordance with these Terms.

6. Link to NPDR and MHR

6.1 Customer appoints MDS in its capacity as a CSP to link Customers’ IT systems and patient records to both the NPDR and MHR.

6.2 Customer warrants to MDS that it has completed the form supplied by the Department of Human Services, Medicare, being Form 4717.1211 or its replacement, described as “Application to Link or Unlink a Contracted Service Provider to or from a Health Organisation Record” and delivered the completed form to MDS.

6.3 Customer acknowledges that until it has complied with 6.2 its records will not be linked to the MHR or NPDR via MDS.

7. Representations and Warranties

7.1 Customer represents and warrants Customer is authorised to install Software and bind the Customer by these Terms.

7.2 Customer represents and warrants to MDS that in using the Services Customer will:

(a) Comply with all applicable laws, including the Competition and Consumer Act 2010 and State fair trading legislation;

(b) Only nominate for forwarding prescription messages to any third party service including the MHR and/or the NPDR, patients who have given informed consent for use of such a service and include the patient consent flag in the Prescription message delivered to the MDS Services;

(c) Not direct any Personal Information to any third party where a patient has not given their informed consent or has withdrawn their informed consent;

(d) Ensure that any Personal Information disclosed to MDS, is entitled to be received, used and disclosed in accordance with these Terms and the MDS Privacy Policy and not do anything that would cause MDS to be in breach of the Privacy Act 1988 (Cth);

(e) Provide such information to MDS as is reasonably necessary for MDS to provide or make available the Services and use reasonable endeavors to ensure that this information is accurate and complete and delivered to MDS in a timely manner;

(f) Not intentionally, recklessly or negligently interfere with Other Customers’ use of the Services;

(g) Ensure that all Authorised Users undertake any training required by MDS relating to any MDS Service;

(h) Inform MDS within seven (7) calendar days of the sale or transfer of Customer’s business;

(i) Use commercially reasonable endeavors to ensure that the Services provided by MDS are protected from unauthorised access, use or destruction at all times; and

(j) Inform MDS as soon as practicable if Customer suspects there has been unauthorised access to any of the MDS Services.

8. MDS’s Obligations

8.1 In providing the Services, MDS will:

(a) Comply with all applicable laws, including Competition and Consumer Act 2010 and State fair trading legislation; and

(b) Perform the Services with reasonable care and skill and conforms with industry standards as published by Standards Australia.

9. Fees, Invoicing and Payment Terms

9.1 MDS will issue receipted invoices to Customer for the Usage Fees. Such issue may be by hard copy, electronic copy, posting, or such other means as chosen by MDS and shall contain the requirements of a Tax Invoice.

9.2 Payment must be made by agreed direct debit authority, credit card payment authority or direct payment authority.

9.3 Customer must pay Usage Fees within 30 days after service by MDS of a Usage Fee Invoice and by the agreed electronic payment method.

9.4 Customer acknowledges and agrees that Fees are not refundable.

9.5 Customer acknowledges that Customer will continue to be invoiced by MDS for Usage Fees in the event of the sale or transfer of Customer’s business up to the date that the Customer notifies MDS of the sale or transfer of Customer’s business.

9.6 Customer acknowledges and agrees that it is liable to pay all of the Usage Fees incurred during the Term for use of the Services, until Termination in accordance with these Terms.

10. GST

10.1 The Usage Fees exclude an amount for GST payable byMDS for the provision of the Services, calculated at the rate of GST applying as at the date hereof.

10.2 If at any time the rate of GST increases or decreases from that applying as at the date hereof thereby causing an increase or decrease in the GST payable by MDS then the Fees shall be adjusted to take account of such increase or decrease. Customer agrees to provide an amended direct debit authority to cover such change.

11. Disclaimer

11.1 Except for the express terms of these Terms and any Prescribed Terms, MDS makes no warranties with respect to its performance of the Services and expressly excludes all conditions, warranties and terms which would otherwise be implied by law, conduct or otherwise be included in these Terms. To the extent permitted by law, MDS limits its liability for a breach of any Prescribed Terms at its option to the repair or re-supply of the relevant Prescription or Prescriptions.

12. Limitation of Liability

12.1 Notwithstanding any other provision of these Terms, to the maximum extent permitted by law:

(a) In no circumstances will either party be liable to the other for any indirect or consequential loss, damage, liability, costs or expenses (including loss of profits, transaction losses, opportunity costs, interruption of business, loss of use, loss of goodwill or loss or corruption of data) arising out of or in connection with these Terms, whether such liability arises under contract, tort (including negligence), law or otherwise; and

(b) MDS’s total aggregate liability to Customer under or in connection with these Terms for all loss, damage, liability, costs or expenses of a kind not excluded by paragraph (a), whether arising under contract, tort (including negligence), law or otherwise is limited to an amount not exceeding the Fees paid by Customer during the 12 months prior to the date on which the claim arose less any amount previously paid by MDS to Customer in relation to a claim under these Terms, or $1000, whichever is higher.

13. MDS Intellectual Property

13.1 Customer acknowledges that as between Customer and MDS, MDS owns all Intellectual Property (other than any Third Party Intellectual Property) subsisting within ETP Exchange (including the design of ETP Exchange) or subsisting in any content or material created, or made available, by MDS in the provision of the Services (“MDS Intellectual Property”).

13.2 Subject to Termination, MDS grants Customer a royalty free, nonexclusive, non-transferable licence to use the MDS Intellectual Property and the Third Party Intellectual Property to the extent necessary for it to use the Services (including ETP Exchange) in accordance with these Terms. Customer is expressly prohibited from using the MDS Intellectual Property for any other purpose.

13.3 Apart from any incidental use arising as a result of Customer’s exercise of the licence contained in clause 5.1, Customer must not use the name, logo or associated trademarks of MDS without the express written approval of MDS (which approval may be given on such conditions as MDS thinks fit including the condition that Customer will comply with MDS’s trademark guidelines).

13.4 Other than as provided in this clause, nothing in these Terms gives Customer any right, title or interest in or to the MDS Intellectual Property.

14. Confidential Information

14.1 Customer shall hold all MDS Confidential Information in confidence and shall use such information only for the purposes of and in accordance with these Terms.

14.2 Customer agrees not to disclose MDS Confidential Information to any third party without the prior written approval of MDS.

14.3 The obligation to protect the confidentiality of MDS Confidential Information shall be effective for an indefinite period and continue after the date of Termination. 14.4 Nothing in these Terms shall prohibit or limit either Customer’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies):

(a) Previously known to it without an obligation of confidence;

(b) Acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; or

(c) Which is or becomes publicly available through no breach of these Terms.

15. Termination for Convenience

15.1 Customer or MDS may Terminate these Terms at any time on giving ninety (90) days’ written Notice of termination to the other party.

16. Termination for Cause

16.1 Either party may Terminate immediately by written Notice to the other party if:

(a) The other party is in material breach of these Terms and, if capable of remedy, has failed to remedy such breach within 30 days of receiving Notice to do so; or (b) The other party becomes insolvent, has a receiver or receiver and manager appointed, enters into liquidation, provisional liquidation or administration, is subject to an arrangement with its creditors, fails to comply with a statutory demand, is otherwise unable to pay its debts when they fall due or something having a similar effect to the foregoing happens in connection with the party.

17. Consequences ofTermination

17.1 Upon Termination:

(a) MDS will revoke all means of access to ETP Exchange, including the Customer ID and Password and will provide direction to Customer on disengaging from ETP Exchange; and (b) Customer will cease to use ETP Exchange and return all material that is the property of MDS.

18. Acknowledgements and Rules of Use

18.1 Customer acknowledges and agrees that:

(a) Unless otherwise specified, MDS has no responsibility for the terms or content of any Prescription dispensed by Customer for the ETP; and

(b) Customer is responsible for:

i. The Transactions into which it decides to enter and their performance;

ii. Ensuring its own compliance with the law; and

(c) Customer enters into any Transaction after receiving its own advice and considering its own legal position; and

(d) MDS is not liable for any deficiencies in the performance of the Services or any loss incurred by Customer arising as a result of any information supplied by Customer or any Other Customer to MDS being inaccurate, incomplete or late; and

(e) Customer shall use current MDS-certified dispense software, maintaining version upgrades as released from time to time.

18.2 MDS undertakes to treat Prescriptions and any other data provided by Customer as confidential information and not to disclose the same in such a way that the source of the data can be identified as Customer, unless MDS has a legal requirement to disclose or Customer provides specific written permission to do so.

19. Publicity

19.1 Customer may not make press or other announcements or releases relating to MDS or these Terms and the Transactions effected through ETP Exchange without the prior written approval of MDS as to the content, form and manner of the announcement or release.

19.2 Where Customer is required by law to disclose such as under the continuous disclosure regime under the Corporations Law, clause 19.1 applies to the extent permitted by law.

19.3 MDS may promote the fact that Customer is a customer of MDS and uses ETP Exchange. With the prior written approval of Customer, Customer licenses MDS to use Customer’s trademarks strictly in accordance with Customer’s trademark policies and requirements, as notified by Customer to MDS as part of such promotion.

20. Survival of Terms

20.1 Clauses 7, 12, 13, 14, 19 and this clause 20 of these Terms survive Termination.

20.2 Expiry or Termination in accordance with these Terms will not affect the accrued rights of the parties.

21. Assignment

21.1 Customer may not assign in whole or in part or delegate or sublicense its rights under these Terms (other than to Authorised Users) without the prior written consent of MDS (which will not be unreasonably withheld).

21.2 MDS may assign or novate in whole or in part or sublicense its rights and obligations under these Terms at any time after 30 days’ Notice to Customer.

21.3 MDS may assign or novate in whole or in part to a Related Body Corporate  without the consent of Customer.

22. EntireTerms

22.1 These Terms constitutes the entire agreement of the parties about its subject matter and supersedes all previous Terms, understandings and negotiations on that subject matter.

23. Severability

23.1 In the event that any provision contained in these Terms should be found to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the validity, legality or enforceability of the remaining provisions contained in these Terms shall not in any way be affected or impaired by such a finding, except to the extent necessary to give effect or meaning to those remaining provisions.

24. Governing Law and Jurisdiction

24.1 These Terms will be governed by the laws in force in the State of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that State.

25. Communications

25.1 Customer consents to receiving Communications from MDS regarding MDS’s products and services or any other products or services that MDS believes may be of interest to Customer, unless MDS is informed directly by Customer to the contrary.

26. Definitions

These meanings apply in these Terms unless the contrary intention appears:

Acceptance has the meaning contained in clause 2.1.

Authorised Users means agents, advisers, contractors or personnel of Customer whom Customer has authorised to use the Customer ID and Password on its behalf.

Communications means Electronic Messages, mail by post, facsimile transmission, in person or by telephone.

Confidential Information means any information identified, orally or in writing, by the disclosing Party as confidential or which is otherwise confidential by its nature and includes MDS Confidential Information.

CSP means a Contracted Service Provider registered as such with the Health Identifiers Service.

Customer means the individual and/or pharmacy who has installed and/or is using the MDS Services and is bound by these Terms.

Customer ID means the identification code assigned to Customer by MDS. Direct Payment

Authority means the payment authority provided to Customer prior to installation of the Software. Electronic Messages has the same meaning as in section 5 of the Spam Act 2003.

e-Script, e-Prescription or Electronic Prescription means any Prescription in electronic form that complies with the then prevailing standards and includes all information and an approved digital signature so as to be accepted as an electronic representation of a paper based Prescription as defined in the relevant state and Commonwealth legislation.

ETP Exchange means the MDS Prescription Exchange Services (“PES”) which collects Electronic Prescriptions (“e-Scripts”) from medical practitioners and other registered prescribers, stores these e-Scripts in a secure repository called the MDS Script Vault®, validates a Prescription identifier presented to a pharmacy and securely downloads the e-Script into the pharmacy dispensing software for dispensing by the pharmacy. The ETP Exchange collects a message from the dispensing system to acknowledge that the e-Script has been dispensed and stores any repeat e-Script for future dispensing.

Fees means the fees due to MDS under these Terms. GST and Tax Invoice have the same meanings as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).

Intellectual Property means all rights conferred under statute, common law and equity in or in relation to inventions (including patents), copyright and neighbouring rights, registered and unregistered designs, logos and get up, circuit layouts, trademarks, know-how and includes applications and the right to make applications for all of the above, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

MDS means MediSecure.

MDS Confidential Information means any information supplied to Customer by MDS relating to these Terms (whether supplied before, on or after the date of these Terms and including the Customer ID and Password) and information supplied to Customer relating to the Services provided by MDS which MDS treats, or may reasonably be expected to treat, as confidential. MDS Intellectual Property has the meaning set out in clause 13.1.

MDS Intellectual Property has the meaning set out in clause 13.1.  

MDS Privacy Policy means the privacy policy contained on the MDS website.

MHR means the My Health Record and any related service operated in accordance with the relevant Commonwealth and State legislation, previously known as the Personally Controlled Electronic Health Record (PCEHR).

Notice means written Notice and includes Notice delivered in person, by courier, by post, electronic mail or facsimile.

NPDR means the National Prescribing and Dispensing Repository service which is part of the national eHealth infrastructure under development by the National E- Health Transition Authority as a registered repository for medicines information of consenting patients and is operated in accordance with the relevant Commonwealth and State legislation.

Other Customer means a registered customer of MDS who has entered into similar Terms to these Terms or other form of Terms approved by MDS (but excludes Customer). Other Customer

Confidential Information means any information supplied to MDS by an Other Customer relating to the use of ETP Exchange which Other Customer treats, or may reasonably be expected to treat, as confidential.

Own Repeat/Own Repeats means any Electronic Prescription that has been placed in the MDS Script Vault® by a pharmacy following dispensing and has subsequently been downloaded again for the next dispensing event by that same pharmacy. The Own Repeat originates from the dispensing system where the pharmacy has downloaded and dispensed the original e-Script placed in the MDS Script Vault by a medical practitioner, or has been uploaded to the MDS Script Vault as a repeat prescription by the pharmacy following the dispensing of a prescription that the pharmacy has received into the dispensary as a paper script.

Password means the password assigned to Customer by MDS.

Period of Services means MDS will provide Customer with a licence to use ETP Exchange for a period of 24 months.

Personal Information means information about a person that is ‘personal information’ as defined in the Privacy Act 1988.

Prescribed Terms means any terms, conditions, or warranties implied by law into contracts for the supply of goods or services including Prescriptions that cannot be excluded.

Prescription has the same meaning as in section 4 of the National Health (Claims and under co-payment data) Rules 2012.

Qualifying e-Script means any Electronic Prescription that has been placed in the MDS Script Vault by a medical practitioner and meets the terms and conditions of the 6th Community Pharmacy Terms e-Prescription Fee program.

Related Body Corporate has the same meaning as in section 50 of the Corporations Act 2001.

RTPM means the additional technology available with version 3 or greater of the ETP Exchange, delivering real time alerts at the point of prescribing for medicines of a particular class.

Services means the services MDS may provide or make available to Customer (and Other Customers) under these Terms including the ETP Exchange. Services commence upon installation of the Software.

Software means the ETP Exchange.

Term means the Period of Services subject to Termination, which will automatically renew upon expiration of the Period of Services.

Terms means these Terms and Conditions.

Termination has the meaning set out in clauses 15.1, and 16.1.

Third Party Intellectual Property means Intellectual Property owned by a third party, which is required to be used in connection with the Services.

Transaction means the creation and sending of an e-Script from the clinical desktop or other software application to the ETP Exchange and includes the process of identifying the particular Prescription, application of an approved or registered digital signature on the e-Script and a validating receipt that the e-Script is in the secure storage facility within the ETP Exchange.

Usage Fee means the fee charged by MDS to Customer for the use of ETP Exchange. The Usage Fee operates as a cost neutral policy. A Usage Fee of 15 cents for an original script and 15 cents for a repeat script. The Usage Fee will only be charged for a Transaction that the pharmacy can claim under the 6th Community Pharmacy Terms (6CPA).