1. Meaning of Words and General Interpretation
In this Agreement, unless the context otherwise requires:
“Additional Licence Fees” means the licence fees payable by the Customer for each Additional Licence, as determined by the Supplier;
“Additional Licence” means any additional software licence requested by Customer after the Commencement Date;
“Agreement” means the whole of this agreement including all its parts, sections, appendices and Schedules, as amended from time to time in accordance with this agreement;
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Australia;
“Care Provider” means a medical or health related practice, clinic or hospital, or an individual care provider, including a general practitioner, doctor or specialist;
“Commencement Date” is the commencement date for the provision of the Solution and the Services specified in item 1 of the Schedule, or such other date as the parties may agree;
“Customer Data” means either the data in relation to End Users collected by the Customer, Licensed Consultants or the Supplier on the Customer’s behalf for the purpose of using the Solution or facilitating the Customer’s use of the Solution, or any other data communicated via the Solution (including media files which may identify End Users), as applicable;
“Customer Software” means the software component of the Solution licensed to the Customer under this Agreement and all other information, documentation provided by the Supplier to the Customer to be used in conjunction with and/or in relation to such software, including the Documentation;
“Customer” means the customer specified in Part 1 of this Agreement;
“Delivery Location” means the premises designated by the Customer for delivery of the Equipment;
“Documentation” means the user manuals, online training modules and other documents made available to the Customer by the Supplier from time to time which set out a description of the Equipment, Software and/or Services;
“End User” means, where the Customer is a Care Provider, the patients of that Care Provider who are granted access to the Solution by the Care Provider, either by access to Equipment and/or the Customer Software, at the Customer’s premises;
“Equipment Fees” means the fees payable for the leasing of Equipment, as specified in the Equipment Fee Schedule;
“Equipment Schedule” means the schedule to this Agreement specifying the Equipment to be supplied and Equipment Fees payable for Equipment requested by the Customer as at the Commencement Date; which can be altered by mutual agreement from time to time;
“Equipment” means the ManageMyHealth supplied mobile device and any peripheral diagnostic medical devices or other equipment provided to the Customer by the Supplier, or subsequently ordered by the Customer after the Commencement Date;
“Fees” means all fees payable under this Agreement, including the Licence Fees, the Equipment Fees and, where appropriate, the Support Fees;
“Force Majeure” means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time any obligation under this Agreement. Such circumstance includes but is not limited to any act of God, lightning strikes, earthquakes, floods, storms, explosions, fires and/or any natural disasters;
“GST” means Goods and services tax (GST) a broad-based tax of 10% on most goods, services and other items sold or consumed in Australia as per A New Tax System (Goods and Services Tax) Act 1999.
“Initial Period” has the meaning given in clause 2.1;
“Intellectual Property” means all trademarks, service marks, inventions, patents, designs, copyrights, know-how and trade secrets, software products, brochures, documentation, all rights and interests of licences to use any of them and any other right or interest generally recognised as intellectual property;
“Licensed Consultant” means a Care Provider other than the Customer who will be licensed to use the Consultant Software under a separate licence agreement for the purpose of communicating with the Customer and End Users;
“ManageMyHealth Server” means the Supplier’s server through which Customer Data will be transmitted relating to the Solution;
“Normal Business Hours” means 8.00 am to 5.30 pm local time in Australia, each Business Day;
“Order” means any order for additional Equipment or Additional Licences submitted by the Customer after the Commencement Date in accordance with clauses 3 or 6;
“Privacy and Security Policy” means the privacy and security policy attached URL: https://www.managemyhealth.com.au//content/common/Privacy.aspx?footerkey=0;
“Product List” means the list of equipment available for lease by the Customer, or otherwise provided by the Supplier, and as may be amended by the Supplier from time to time;
“Related Parties” means in relation to a company, such company’s related companies (as defined in the Corporations Act, 2001 Australia and shareholders as at the Commencement Date or at any later date “Additional Term” has the meaning given in clause 2.3;
“Representatives” means the employees, consultants, contractors and/or any other related party of the Supplier or Customer (as the case may be);
“Server Software” means the Software licensed to the Customer for enabling access to the ManageMyHealth Server;
“Services” means all services provided by the Supplier to the Customer under this Agreement, including the Installation Services and the Support Services;
“Mobile device” means the mobile device installed with Customer Software, leased by the Customer under this Agreement;
“Software” means, the Customer Software, the Server Software, Consultant Software and any other software provided by the Supplier to the Customer under this agreement;
“Solution” means the ManageMyHealth solution supplied to the Customer under this Agreement, comprised of the Mobile device and the Software specified and any further Equipment or Software supplied to the Customer after the Commencement Date;
“Supplier” means the supplier of the Solution and the Services, as specified in Part 1 of this Agreement;
“Term” has the meaning given in clause 2;
“Usage Fees” means the fees payable by the Customer to the Supplier for using the Mobile device between a Licensed Consultant and an End User;
“User” means an employee, contractor or other Representative of the Supplier with access to the Equipment; and
“Virus” means any device or thing (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.1. All definitions used in these Terms and Conditions not otherwise defined or elsewhere in the Agreement (as the case may be).
1.2. In this Agreement, unless the context otherwise requires:
words denoting the singular shall include the plural and vice versa;
words denoting persons shall include any individual, principal, corporation, partnership, joint venture, association, organisation, trust, state, agency of a state, municipal authority, government or any statutory body in each case whether or not having separate legal identity;
any covenant or agreement on the part of two or more persons shall bind those persons jointly and severally;
reference to anything of a particular nature following upon a general statement shall not in any way derogate from or limit the application of the general statement unless the particular context requires such derogation or limitation;
any reference to “month” or “monthly” shall mean respectively calendar month or calendar monthly;
references to sections, clauses Appendices and schedules are references to sections, Appendices, clauses and schedules in this Agreement;
the section headings and clause headings have been inserted for convenience as a guide to the provisions of this Agreement and shall not form part of this Agreement or affect its interpretation in any way;
references to this Agreement or any document or statement (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time; and
reference to any statute, regulation, ordinance or bylaw shall be deemed to extend to all statutes, regulations, ordinances or bylaws amending, consolidating or replacing the same.
2.1. This Agreement commences on the Commencement Date and continues for the initial period and for any Additional Term set out, unless terminated earlier under clause 15.
2.2. Unless a party notifies the other party in writing not less than three months prior to the expiry of the Initial Period (or any Additional Term) that it wishes to terminate the Agreement at the expiry of the Initial Period (or the then-current Additional Term), the Term will renew automatically in accordance with clause 2.3.
2.3. At the expiry of the Initial Period (or any Additional Term), unless the Agreement has been terminated by either party in accordance with clause 2.2, or clause 15 the Agreement shall automatically renew for a further term of 12 months each (each, a further Additional Term).
3. Supply of Equipment
3.1. In consideration for payment of the Equipment Fees, the Supplier shall supply the Equipment specified in the Equipment and Software Fee Schedule;
3.2. The Customer may, at any time after the Commencement Date, order further Equipment to be supplied by the Supplier, subject to this clause 3 and clause 4.
3.3. To order further Equipment after the Commencement Date, the Customer must submit an order for equipment contained in the Product List in the manner specified by the Supplier (Order).
3.4. Where the Customer is a Care Provider, it may submit Orders on behalf of any End User.
3.5. The Customer acknowledges that an Order for further Equipment may require the Customer to purchase an Additional Licence (as determined by the Supplier).
3.6. An Order will be confirmed and binding on the parties on the earlier of:
the Order being acknowledged and accepted by the Supplier in writing; and
the relevant Equipment being delivered in accordance with the Order and leased to the supplier for a (Minimum Period as set out in item 3 of Appednix-4)
3.7. Where there is an inconsistency between the terms of this Agreement and an Order, the terms of this Agreement will prevail.
4.1. Subject to this clause 4, the Supplier and/or its Representatives shall:
deliver the Equipment and the Customer Software specified in the Schedule to the Customer prior to the Commencement Date (or on such other date as the parties may agree); and
process all Orders in a prompt manner and deliver the relevant Equipment and or Software to the Delivery Location within 8 weeks of the date of the Supply Order;
4.2. The Supplier shall keep a reasonable stock of the equipment listed in the Product List, however the Customer acknowledges that:
the delivery time for Equipment is subject to availability of the relevant Equipment as at the date of the Order; and
a ten-week delivery period applies to equipment ordered from the Supplier’s third-party supplier.
4.3. Risk of damage to or loss of the Equipment shall pass to the Customer at the time of delivery.
4.4. Notwithstanding delivery and the passing of risk in the Equipment, title to the Equipment shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the relevant Equipment Fees.
4.5. The Customer must give the Supplier notice of any excess or shortage in the quantity of the Equipment delivered within 14 days after the date of delivery, and the parties will co-operate to ensure that the correct quantity of Equipment has been supplied.
5.1. Supplier will train customer on installation and provide product training.
5.2. Customer will implement and give product training to users.
5.3. To enable the Supplier and/or its Representatives to provide the Installation Services, the Customer shall allow and/or provide the Supplier and/or its Representatives with:
reasonable access to the Delivery Location;
access to the Customer’s front desk and/or clinical database, servers, computer workstations and/or any other equipment linked to and/or used in conjunction with such database, servers and/or computer workstations;
such assistance as may be reasonably required by the Supplier and/or its Representatives; and
reasonable working conditions and adequate work space.
6. Grant of software licence
6.1. The Supplier grants to the Customer, and the Customer accepts from the Supplier, a non-exclusive, non-transferable licence for the Customer to use the Customer Software and access the Server Software on the terms of this Agreement.
6.2. The Customer shall use, and shall procure that the Users use, the Customer Software and the Server Software in the manner contemplated in this Agreement and otherwise in accordance with the Supplier’s reasonable instructions and, in particular, the Customer shall take reasonable steps to ensure compliance with clauses 9 and 11. Additional Licences for Customer Software or the Server Software are Ordered by the Customer (including where required to be purchased in accordance with clause 3.5) the Customer shall pay the relevant Additional Licence Fees.
7. Change to Services
7.1. Subject to clause 7.2 and clause 7.3, the Customer may, from time to time during the Term, request that the Supplier provides further services as part of the Services, and the Supplier shall provide a quotation to the Customer for its approval.
7.2. If the Customer requires a Change, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for a Change and respond to the Customer with details including pricing for the requested Change.
7.3. If the parties agree to the Change requested by the Customer, the Customer shall, within 21 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional Services required by the Customer part way through the Initial Period or any Additional Term (as applicable), such fees to be pro-rated for the remainder of the Initial Period or then current Additional Term (as applicable).
7.4. The Supplier may (at its sole discretion) modify or vary any of the Services to improve their functions and/or capabilities.
7.5. The Supplier may charge the Customer a separate fee (at Hourly Rate) as specified if any such modifications or variations are, in the reasonable opinion of the Supplier, of such complexity and scope to justify a separate fee.
7.6. Additional Equipment and or Additional Licences required by the Customer from time to time during the Term shall be ordered through the Supplier in accordance with clause 3 or 6 (as appropriate).
8. Fees and Other Charges
8.1. The Customer shall pay to the Supplier, in the manner specified in the Agreement, all:
Equipment Fees, as specified in item 4.1 of the Schedule;
Software Fees as specified in Item 4.2 of the Schedule.
8.2. Unless otherwise stated, each of the Fees and any other fee or charge payable under this Agreement is exclusive of GST, payable in respect of the Software, the Equipment, the Services and otherwise in respect of this Agreement. All such GST and/or surcharges are payable by the Customer to the Supplier, in addition to the fees and/or charges payable under this Agreement, in accordance with the tax invoice sent to the Customer.
8.3. The Supplier may review the fees payable under this Agreement in the following manner:
if, on each anniversary of the Commencement Date, Supplier may increase the fees as mutually agreed with Customer
if this Agreement renews for any Additional Term, the fees payable under this Agreement may be increased with effect from the beginning of each Additional Term, but will not exceed 10% per annum, and the Schedule shall be deemed to have been amended accordingly.
8.4. If the Supplier has not received payment of the fees specified in clause 8.1 within 21 days after the due date as specified in an invoice, and without prejudice to any other rights and remedies of the Supplier, the Supplier may charge the Customer interest in respect of the late payment of any sum due under this Agreement at the rate of 18% per annum from the due date thereof until payment and also to recover all costs incurred in relation to efforts to collect amounts due under this Agreement which are not paid by due date.
9.1. The Customer shall:
provide the Supplier with:
all necessary co-operation in relation to this Agreement; and
all necessary access to such information and equipment as may be required by the Supplier,
in order to perform its obligations under this Agreement, including but not limited to access to Customer Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under this Agreement;
carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that all Users and End Users use the Solution in accordance with the terms and conditions of this Agreement, and shall be responsible for any breach of the terms of this Agreement by any of them;
obtain and maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, to the extent that these are not provided by the Supplier;
ensure that, where relevant, its network and systems comply with any relevant specifications provided by the Supplier from time to time, other than in relation to the Equipment; and
where relevant, be solely responsible for:
procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres; and
all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet,
except in relation to the Equipment or as otherwise expressly provided for in this Agreement
9.2. The Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Solution and, in the event of any such unauthorized access or use, shall promptly notify the Supplier.
9.3. The Customer shall notify the Supplier immediately on becoming aware of the Solution being used without authorization and/or in breach of this Agreement.
9.4. The Customer shall ensure that each User is informed of, and procure that each User complies with, the relevant terms of this Agreement.
10. Security of Customer Data
10.1. The Customer will, as between the Customer and the Supplier, own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
10.2. The Supplier shall ensure that all its Representatives who are involved in the provision of the Services to the Customer are aware of and comply with the confidentiality and security obligations set out in this Agreement.
10.3. The Supplier shall, in providing the Services, comply with the Privacy and Security Policy referred to at URL: https://www.managemyhealth.com.au//content/common/Privacy.aspx?footerkey=0
10.4. The Customer shall, when using the Solution and the Services, comply and shall procure that Users comply with its obligations contained in the Privacy and Security Policy.
10.5. The Supplier may from time to time and in its sole discretion, amend the Privacy and Security Policy, and will notify the Customer of such change.
11. Customer Restrictions and Indemnity
11.1. The Customer shall not, and will ensure the Users and the End Users do not:
except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
adapt, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form the Software or any part of the Software, or attempt to do any of these things;
disassemble, deconstruct, reverse engineer or otherwise replicate the Equipment, or attempt to do any of these things;
commit any act or omission the likely result of which is that the Supplier’s reputation will be brought into disrepute or which act, or omission could reasonably be expected to have or does have a material and adverse effect on the Supplier’s interests;
use all or any part of the Software or Equipment in order to build a product or service which competes with the Solution;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Solution available to any third party except the End Users as permitted by this Agreement;
use the Customer Data other than in accordance with the Privacy and Security Policy; or
attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this Agreement.
11.2. The Customer indemnifies the Supplier against any liability, damage, loss, cost or expense sustained or incurred by the Supplier as a direct or indirect result of any act of or omission by the Customer or the Customer’s Representatives in breach of this Agreement or any other illegal act, negligence or recklessness of the Customer or its Representatives or omission by the Customer or the Customer’s Representatives, in breach of this Agreement or any other illegal act, negligence or recklessness of the Customer or its Representatives.
12. Intellectual Property Usage and Ownership
12.1. The Customer acknowledges and agrees that all Intellectual Property rights in the Software and the Equipment are the exclusive property of the Supplier or its licensors.
12.2. The Customer acknowledges that the Supplier (or the relevant licensor) retains ownership of the Software, and that this Agreement does not transfer to the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of any of the Equipment, the Software or the Services, other than the rights of access and usage, as applicable. For the purposes of this clause 12, “ownership” includes any direct and/or indirect interests of the Supplier (or the relevant licensor) in and to the Solution and/or any right (whether acquired under licence or otherwise) to deal with the Solution under this Agreement.
12.3. The Customer shall not, and shall procure that the Users and the End Users do not, at any time during or after the term of this Agreement, directly or indirectly challenge or contest the Supplier’s (or its licensor’s) ownership of the Software.
13. Warranties and limitations
13.1. Subject to the terms of this clause, the Supplier warrants that it has full right and entitlement to provide the Solution and the Services to the Customer in accordance with this Agreement.
13.2. The Supplier provides the benefit of any applicable third-party manufacturers’ warranties.
13.3. Where an error or fault is present in the Equipment or the Software which is covered by a warranty referred to in clause 13.2, the Customer will notify the Supplier, and the Supplier shall make a warranty claim to the relevant third-party manufacturer.
13.4. The Supplier shall use reasonable endeavours to pass on the benefit of any warranties available under clause 13.2 or 13.3 to the Customer.
13.5. The Supplier shall not be liable to the Customer under clauses 13.1 to 13.3 if the Customer’s claim has arisen, directly or indirectly, out of the use of the Solution in conjunction with any equipment, hardware and/or software not supplied or previously approved by the Supplier, and/or in a manner or for a purpose not reasonably contemplated or authorised by the Supplier or a relevant third-party manufacturer, including any use restricted by clause 11.
13.6. Certain laws imply terms into contracts for the supply of goods or services that cannot be excluded (e.g. that services are provided with due care and skill and goods are reasonably fit for their purpose and of a certain quality). If those terms are implied into this Agreement and the Supplier breaches them, it accepts liability for the breach. All other conditions, warranties, terms and undertakings, expressed or implied, statutory or otherwise in respect of the Solution and the provision of the Services which can be excluded by law are excluded. In particular, the Supplier:
does not warrant that use of the Solution will be uninterrupted or error-free, neither does it provide any warranty or assume any liability whatsoever in respect of the legality, reliability, integrity, accuracy or quality of data stored using the Equipment and the Software, or transmitted or extracted from or by the Equipment or the Software;
does not warrant that the use of the Solution (in accordance with this Agreement or otherwise) will meet the Customer’s data processing, reporting, analytical or other requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Solution and the Support Services may be subject to limitations, delays and other problems inherent in the use of such communications systems.
13.7. The Supplier is only liable to the Customer in the cases set out in this clause…
14. Limitation on liability
14.1. The Supplier’s liability is limited to resupplying, repairing or replacing the relevant goods or services where the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so.
14.2. The Supplier is not liable to the Customer in contract, tort (including negligence) or otherwise for any loss or damage. For example, it is are not liable for loss of profits or anticipated savings, economic loss, lost data or any indirect or consequential damage. The Supplier is not liable for failing to comply with its obligations because something happens beyond its control
14.3. Subject to the provisions of clause 14.1 and 14.2 the following provisions set out the Supplier’s liability (including any liability for the acts and omissions of its Representatives and Related Entities) to the Customer in respect of:
any breach of its contractual obligations under this Agreement; and
any representation, statement or tortuous act or omission including negligence (but excluding any of the same made fraudulently) arising under or in connection with this Agreement,
14.4. To the extent permitted by law, the Supplier shall not be liable to the Customer in respect of any claim for any loss, cost, expense, and/or liability whatsoever, including any direct, indirect or consequential loss, incurred and/or suffered by the Customer and/or any other party in connection with any of the goods and/or services supplied under this Agreement, even if such loss was reasonably foreseeable or the Supplier had been advised of the possibility of the Customer incurring the same (“Claim”).
14.5. The Supplier’s liability in respect of any such Claim shall be limited to damages of an amount equal to the aggregate of the Fees actually paid to the Supplier in the immediately preceding period of six months.
14.6. If a number of Claims give rise to substantially to the same loss, then they shall be regarded as giving rise to only one Claim under this Agreement.
14.7. The Customer will allow the Supplier not less than 30 days (following notification thereof by the Customer) in which to remedy a Claim.
14.8. The Supplier shall have no liability to the Customer in respect of any Claim unless the Customer has served notice of the same upon the Supplier within one year of the date it became aware of the circumstances giving rise to the Claim or the date it ought reasonably to have become so aware.
14.9. Nothing in this clause 14 shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
15.1. This Agreement shall terminate:
at the expiry of the notice period of any termination notice given under clause 2.2;
at the expiry of three months’ notice where either party wishes to terminate this Agreement for convenience; or
Immediately, upon notice from the Supplier, if:
the Customer fails to pay to the Supplier within 21 days after the due date for payment, any fee and/or price specified in this Agreement and/or any other fee, amount and/or charge payable under this Agreement;
the Customer breaches its obligations under clause 9 or clause 11 or 12;
the Customer is in breach of any of its material obligations under this Agreement and such breach has not been remedied within 21 days of the date the Supplier notifies the Customer of such breach, requiring that the breach be remedied (or such longer period as the Supplier may stipulate);
the Supplier reasonably believes that the Customer or any of the Customer’s Representatives have committed a fraudulent act or have been guilty of misrepresentation in their dealings with it;
an event of Force Majeure which precludes the Customer from complying its obligations under this Agreement occurs and continues for more than 21 days; or
the Customer becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration;
immediately, at the sole discretion of the Customer, if:
the Supplier is in material breach of any of its material obligations under this Agreement and such breach has not been remedied within 30 days of the date the Customer notifies the Supplier of such breach, requiring that the breach be remedied (or such longer period as the Customer may stipulate);
an event of Force Majeure which precludes the Supplier from complying its obligations under this Agreement occurs and continues for more than 21 days; or
the Supplier becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration.
15.2. Upon termination of this Agreement pursuant to clause 15.1(d), the Supplier shall refund any fees paid in advance by the Customer to the Supplier under this Agreement which relate to the period after the termination of this Agreement.
15.3. Upon termination of this Agreement:
the Customer’s licence to access the Server Software shall terminate and the Customer’s ability to use the Solution shall cease;
the Supplier’s obligation to provide the Support Services shall cease;
all Fees due at the date of termination remain payable by the Customer; and
Equipment leased by the Customer shall remain the property of the Supplier;
If the equipment is not returned in good condition except for normal wear and tear, the Customer will pay a Compensation fee.
15.4. Any termination of the Agreement shall not affect any accrued rights or liabilities of either party to this Agreement, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
15.5. Clauses 12, 13, 14 and 17 will survive the expiry or termination of this Agreement.
16. Force Majeure
16.1. If the Supplier is wholly or partially precluded from complying with its obligations under this Agreement by an event of Force Majeure, then the Supplier’s obligation to perform in accordance with this Agreement will be suspended for the duration of the event of Force Majeure.
16.2. As soon as practicable after an event of Force Majeure arises, the Supplier must notify the Customer of the extent to which the Supplier is unable to perform its obligations under this Agreement.
16.3. The Supplier must recommence the performance of its obligations under this Agreement immediately after the cessation of the event of Force Majeure and must immediately notify the same to the Customer.
17.1. Each of the parties to this Agreement undertakes to the other to keep confidential any information (written or oral) concerning the business and affairs of the other which was obtained during this Agreement and its negotiations.
17.2. The confidentiality obligations set out in clause 17.1 shall not apply to the extent that:
the consent of the other party to this Agreement has been obtained in relation to the disclosure of any such confidential information;
such confidential information has become public knowledge other than as a result of unauthorized disclosure by any party to this Agreement (or its Related Entities or Representatives), or where such information is already in the public domain;
such confidential information is required to be disclosed to the auditors of either party or to any governmental agency or otherwise required by law; and/or
the disclosure of such confidential information is reasonably required by a party to fulfil any conditions or obligations arising under this Agreement.
18. Relationship Between the Parties
18.1. Nothing in this Agreement shall create or constitute, or be deemed to constitute or create, a partnership between the parties for any purpose whatsoever, or to constitute or create, or be deemed to create or constitute, a party as an agent of the other party except and to the extent as expressly provided for in this Agreement.
18.2. The Customer acknowledges and agrees with the Supplier that where any Related Entity of the Customer does any act, matter or thing which if done by the Customer would constitute a breach of the obligations of the Customer under this Agreement, the Customer will be deemed to be in breach of this Agreement.
18.3. The Customer acknowledges and agrees that all the Supplier’s obligations under this Agreement are owed to it by the Supplier (and any of its assignees), and not by any other party.
19.1. The Customer shall not assign, transfer or sublicense, or attempt to assign, transfer or sublicense, any rights and/or obligations under this Agreement, without the prior written consent of the Supplier. The Supplier shall not unreasonably withhold such consent but may charge the Customer a reasonable processing fee for the grant of such consent.
19.2. The Supplier may transfer or assign any of its rights and/or obligations under this Agreement to any third party, without any notice to the Customer.
20.1. A notice required or authorised to be given or served on a party under this Agreement must be in writing and may be given or served by facsimile, electronic messaging, post or hand to that party at its facsimile number, email address or address advised by that party to the other from time to time.
20.2. A notice will be deemed to be received by the addressee:
in the case of a facsimile, on the working day on which it is despatched or, if despatched after 5.00 p.m. (in the place of receipt) on a working day or, if despatched on a non-working day, on the next working day after the date of despatch;
if sent by email, at the time and date at which the sender’s email system records that the email was successfully delivered to the recipient, provided that:
if such transmission is made or completed at a time outside Normal Business Hours, it will be deemed to have been received at the opening of business on the next Business Day; and
an error or non-delivery email is not received by the sender (or by the sender’s email server) in respect of that sent email;
in the case of personal delivery, when delivered; or
in the case of a postal delivery, on the third Business Day after posting.
20.3. The provisions of this clause 20 are in addition to any other mode of service permitted by law.
21.1. No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by a party in respect of any breach of the other party’s obligations under this Agreement is to:
operate as a waiver or prevent the subsequent enforcement of that obligation; and/or
be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.
22. Entire Agreement
22.1. This Agreement constitutes the entire understanding and agreement of the parties relating to the transactions contemplated by this Agreement.
22.2. No amendment to this Agreement will be effective unless it is in writing and signed by all the parties.
This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
Any unlawful or voidable provision in this Agreement shall be read down as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without affecting the validity, legality or enforceability of the remaining provisions, provided the reading down or severing does not materially affect the purpose of or frustrate this Agreement.
25.1. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
25.2. The parties acknowledge that this Agreement may be executed on the basis of an exchange of facsimile copies or email transmissions and confirm that their respective execution of this Agreement by such means shall be a valid and sufficient execution.
26. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and each party agrees to submit to the jurisdiction of the courts and tribunals of the State of Victoria.
27. Dispute Resolution
27.1. If either party has any dispute with the other in connection with this Agreement, then:
the parties will use best endeavors to settle the dispute by agreement between them and act in good faith and co-operate with each other to resolve the dispute; and
if the dispute is not settled by agreement between the parties within 30 days, then, unless both parties agree otherwise:
full written particulars of the dispute must be promptly given to the other; and
mediation will be conducted by a single mediator agreed between the parties or in default of agreement by a mediator nominated by the President of the Law Instate of Victoria for the time being.
In the event of any such submission to mediation:
the mediator will determine the procedure and timetable for the mediation; and
the cost of the mediation will be shared equally between the parties, unless otherwise agreed; and
the mediation process shall cease 30 days after the appointment of the mediator unless the parties agree otherwise.
27.2. Neither party will initiate any litigation during the dispute resolution process outlined in clause 27.1(b) above, unless urgent proceedings are necessary to preserve a party’s rights.
27.3. Both parties will continue to comply with all their respective obligations in the Agreement until the dispute is resolved, but payments may be withheld but only to the extent that they are genuinely disputed.
Last Updated Wednesday, 24 July 2022
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