Last updated 19 July 2013
This Agreement is between ResMed Inc., its wholly-owned subsidiaries and affiliates and its successors or assigns ("ResMed" "we," "us," or "our") and you or the entity you represent ("you").
This Agreement takes effect when you access and use SPaRC (Effective Date).
You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
Please see Clause 1 for definitions of certain capitalized terms used in this Agreement.
In this Agreement the following terms will have the following meaning:
|Australian Consumer Law||means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.|
in respect of a party means information of every form and kind concerning:
- the past, present or future business operations or affairs of the party;
- the procedures, operations, practices, studies, feasibilities, evaluations, processes, organisation and procedures of the party;
- the business transactions, business methods, records, forms, costings, charges, financial affairs and trade secrets of the party; and
- any information obviously confidential whether or not any such information is described as confidential,
but not including any information which is lawfully within the public domain.
|Consumer Guarantee||means a right or guarantee you may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.|
|Content||means any information, images, software or other material in whatever form which is displayed or made available by ResMed or its suppliers (other than you) on SPaRC.|
|Intellectual Property||means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, Confidential Information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.|
|Manipulate||means download, modify, add to, adapt or Upload content on SPaRC.|
|Material ||means any information, images, software or other material in whatever form which you Upload or otherwise cause to be displayed or made available on SPaRC.|
|Moral Rights||means rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute or otherwise anywhere in the world that may exist or that may come to exist in the future.|
|Share||means to print in hardcopy form or to an electronic file and provide to any of your employees and subcontractors solely for your internal business purposes.|
|Upload ||means to upload to SPaRC.|
|Usage Purpose||means collaboration with ResMed for the purpose of product research, development, manufacture and / or supply.|
2. License to access and use SPaRC
- During the term of this Agreement, ResMed grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use SPaRC for the purposes and subject to the limitations provided in this Agreement.
- Your access to and use of SPaRC is limited to the rights set out below:
You may access Content
|You may Manipulate Content||You may Upload Content to SPARC||You may Share Content|
|Public – no login required||Yes: read-only access to general Content||No||No||Yes|
|Shared – login required||Yes: same as Public level access plus access to Content available to all authenticated ResMed suppliers||No||No||Yes|
|Private – login required||Yes: same as Shared level access plus access to Content available only to you ||Yes||Yes||Yes|
3. Login passwords
- You are responsible for ensuring that your users take all reasonable steps to safeguard their user names and passwords. You must ensure that each password allocated to you is protected, and is not written down or shared. You must also ensure that users only use the user name and password allocated to them, and that no other person uses such user name and password.
- We may assume that any person accessing or using SPaRC using those user names and passwords are your users.
- If you become aware or have reason to suspect that there has been any unauthorised use of any user name or password that has been allocated to your users, you agree to notify us immediately.
4. Use of SPARC
- You must ensure the Material and your manipulation and Sharing of Content will not:
In using and accessing SPaRC, you:
- result in a breach of any law or mandatory code of conduct;
- infringe any person's rights (including intellectual property rights and moral rights);
- constitute a misuse of any person's personal or Confidential Information; or
- result in you breaching any obligation that you owe to any person.
Unless otherwise expressly stated in this Agreement, you must not:
- acknowledge and agree that SPaRC is GMP compliant and therefore has an audit trail. This means that your actions are tracked and auditable and we may monitor and keep an audit history of your use of SPaRC;
- warrant that all of the Material is correct and current;
- warrant that you have all necessary rights, power and authority to enter into and perform your obligations under Agreement; and
- authorise ResMed to grant users of SPaRC access to and use of the Material.
You must not use SPaRC to:
- share SPaRC accounts;
- use SPaRC for personal information such as home contact details;
- waste the resources of SPaRC, such as by excessive use of storage space;
- permit third parties (including providers of outsourcing or facilities management services) to access SPaRC or to use or modify the Content;
- provide access to SPaRC either directly or indirectly to any third party;
- copy, modify, enhance or adapt the Content or any feature or function of SPaRC;
- unless otherwise permitted by law, reverse engineer or decompile SPaRC or any part of it;
- allow any other person to use or permit the use of SPaRC to provide any form of bureau service or for similar activities; or
- exploit SPaRC otherwise than as permitted under this Agreement.
- create or transmit material that is sexually explicit, profane, harassing, fraudulent, defamatory or otherwise unlawful;
- violate licence agreements or copyright; or
- interfere with the SPaRC software system.
5. Equipment and Software Requirements
- To access SPaRC, you will need to have a computer with access to the internet and maintain supported browsers and software as instructed by ResMed from time to time.
- By using SPaRC, you will receive information by electronic transmission of a visual display of text or of a file of digital information, software or other materials.
- ResMed will take commercially reasonable steps (such as implementing commercially available virus protection software) to identify and remove viruses, worms, trojan horses, and other similar harmful components that may enter your computer system when you download information, software, or other materials from SPaRC.
- While we will use all reasonable endeavours to ensure that SPaRC is accessible at all times during the term of this Agreement, we cannot guarantee that SPaRC will be accessible at all times.
6. Your account
- To access SPaRC you must create an account or an account must have been created for you. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or another person.
- Except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorised access to your account.
- You will notify us immediately if you believe your account has been accessed, hacked or used without your permission, or if there is a suspected or actual violation of the security of SPaRC or any data provided to or maintained by SPaRC. In addition, you will inform us immediately in writing of the need to deactivate an account due to potential or actual security concerns or for any other reason.
7. Your responsibility
- You will report to ResMed immediately the discovery of any type of discrepancy, anomaly or error detected in Content or Material. You will also immediately report to ResMed the discovery of any virus or corruption on SPaRC or on your own equipment used to connect to or otherwise access SPaRC, including any hardware or software.
- It is your responsibility to comply with all applicable laws and to ensure adequate security of your equipment and related peripherals. You are responsible for obtaining and maintaining all necessary consents, permissions or authorisations required or advisable in connection with the transmission, storage, retrieval, access, use and disclosure of information through SPaRC.
8. ResMed responsibility
- We, or a third party acting as our agent, are responsible for the operation and maintenance of hardware and software necessary to operate SPaRC. However, neither we nor our agents will be liable:
- if your internet connection was not working properly;
- if you have not properly followed the instructions on accessing and using SPaRC;
- if your equipment or the software you are using was not working properly and this problem was or should have been apparent to you when you attempted to access SPaRC; and
- if circumstances beyond our or our agents' and our affiliates' control prevent or delay display of information or the making of data retrieval, despite precautions being taken. Such circumstances may include acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
9. Changes to SPaRC
- We may change, discontinue or remove features or functionality of SPaRC from time to time. We will notify you of any material change to, or discontinuation of, SPaRC.
- We may, on a regular basis, perform maintenance on SPaRC, which may result in interrupted service. We may also need to change the scope of SPaRC from time to time. We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.
11. Limitation of liability
- ResMed will not be liable in contract or negligence for any consequential, incidental or indirect loss, or for any loss of data, profits, revenue or savings arising out of this Agreement or connected in any way with the use, misuse or inability to use SPaRC or for any claim by any third party.
- With the exception of Consumer Guarantees, ResMed excludes any term, condition or warranty that may otherwise be implied into this Agreement. ResMed does not warrant that the functions contained in SPaRC will meet your requirements or that its operation will be uninterrupted or error free or compatible with the other software or hardware of your systems.
- Should ResMed have any liability to you or any third party, including in respect of a breach or failure to comply with a Consumer Guarantee and in respect of any damages, losses and other causes of action (whether in contract, tort or otherwise), our liability is limited to the resupply to you of the services available on SPaRC.
- Clause 11.3 does not apply to our liability in respect of a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
- You acknowledge that certain of the Content may be designated by us as our Confidential Information.
- You must:
You will ensure that all your personnel, contractors or agents which use or have access to our Confidential Information keep the Confidential Information confidential.The obligations under this clause 12 will survive the termination of this Agreement.
- maintain proper and secure custody of all our Confidential Information which you hold;
- not disclose or allow your personnel, contractors or agents to disclose our Confidential Information to any third party except as required by law; and
- use your best endeavours to prevent the use or disclosure of our Confidential Information by third parties.
13. Intellectual Property rights
- Each party acknowledges and agrees that:
If you have Private level access to SPaRC as set out in clause 2.2, and a party (first party) Uploads any Content (in the case of ResMed) or Material (in the case of you) which is Background IP of the first party, the first party:
- SPaRC is the property of ResMed and embodies Intellectual Property rights of ResMed;
- the Content is the property of ResMed or its licensors and embodies Intellectual Property rights of ResMed or its licensors;
- the Material is the property of you or your licensors and embodies Intellectual Property rights of you or your licensors; and
- nothing in this Agreement transfers the ownership of SPaRC, the Content or the Material (collectively, Background IP).
Without limiting clause 13.2, our licence of the Material permits us to reproduce and adapt it and to communicate it to other users of SPaRC unless such Materials are subject to obligations of written Non-Disclosure Agreement between the parties.If any Intellectual Property rights are brought into existence by a party alone or jointly with the other party in the course of the Usage Purpose, you:
- licenses the other party to use such Background IP for the Usage Purpose; and
- warrants that, to the best of the first party's knowledge, such use of the first party's Background IP will not infringe any Intellectual Property rights or other rights of a third party.
- assign your rights in all such Intellectual Property rights to ResMed and will obtain and grant to ResMed any Moral Rights, waivers and consents necessary. This assignment operates as an assignment of existing and future Intellectual Property rights; and
- must deliver any material embodying such Intellectual Property rights to us and agree that such material is our Confidential Information.
14.1 You will indemnify and hold harmless ResMed, its subsidiaries, affiliates or assignees, and their directors, officers, employees, agents and representatives, and defend any and all actions brought against same with respect to any claims, demands, causes of action, debts or liabilities, including legal costs, experts' fees, and court costs, to the extent that it arises from the acts or omissions of you, your directors, officers, employees, agents, or representatives, including but not limited to the use of SPaRC or any Material.
- Either party may terminate this Agreement for material breach of this Agreement by the other party, by giving five (5) days notice to the other party, unless the other party has cured the material breach within the 5 day notice period.
- We may terminate this Agreement immediately on notice to you:
On any termination of this Agreement all your rights under this Agreement immediately terminate.
- if we believe providing SPaRC could create a substantial economic or technical burden or material security risk for us in order to comply with the law or requests of governmental entities; or
- if we determine use of SPaRC by you or our provision of SPARC to you or has become impractical or unfeasible for any legal or regulatory reason.
16. Relationship of the parties
- Nothing in this Agreement will be construed to constitute either party as the partner, employee, or agent of the other. Neither party has any authority to bind the other in any respect. Each party will remain independently responsible only for its own actions. Each party will conduct all of its business in its own name and in such manner as such party may see fit, at its own expense.
17. Governing law
- This Agreement and any dispute or claim arising out of or relating to or in connection with it shall be governed by, and construed in accordance with the laws of New South Wales.
- All disputes and claims arising out of, relating to or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of New South Wales, to which the parties irrevocably submit.
18.1 We may give notices or other communications required under this Agreement by posting or providing links on other communications through SPaRC.
19. Modifications to this Agreement.
- We may modify this Agreement at any time by posting a revised version through SPaRC or by otherwise notifying you in accordance with clause 18.
- The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use SPaRC after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check SPaRC regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.
- We may assign the rights and delegate the duties under this Agreement. You may assign the rights and delegate the duties under this Agreement if you receive ResMed's written consent before any such assignment or delegation.
- If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
22. No waiver
- A waiver of any term or provision of this Agreement at any time will not be deemed a waiver of the term or provision in the future.
23. Entire Agreement; English Language
- This Agreement represents the full and final agreement of the parties as to the subject matter and supersedes any prior written or oral agreement. In the event of any conflict between this Agreement and other agreements, the terms of this Agreement will prevail.
- If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will prevail in the event of any conflict.