1.1. This agreement starts on the Commencement Date and will continue for the Term, unless it is terminated earlier in accordance with clauses 9.1 or 9.2.
1.2. From the Commencement Date this agreement supersedes any previous agreement between the Parties and sets forth the entire and exclusive agreement and understanding between the Parties relating to the subject matter of this agreement.
2.1. The Client engages the Service Provider, and the Service Provider accepts the engagement, to provide the Services for the Term.
2.2. The Service Provider agrees to provide the Services in accordance with this agreement and all applicable laws, and in doing so must exercise reasonable care and skill.
2.3. The Service Provider will provide the Materials in accordance with this agreement.
2.4. If the Application indicates that a Third Party Payer has agreed to pay the Fees (in whole or in part), the Service Provider provides the Services and the Materials:
2.5. The Services and the Materials provided by the Service Provider are to assist in the operation of the Client's Pharmacy Business and the Client must not use them for their private purposes or any other purpose not permitted under this agreement.
2.6. Without in any way limiting clause 2.5, the Services (including any Work Material) and the Materials are for the Client's exclusive use, and must only be used by the Client in the conduct of the Pharmacy Business.
2.7. The Work Material must not be used or disclosed for any purpose other than that referred to in clause 2.6 or made available to any other person, except with the Service Provider's prior written consent. The Service Provider is not responsible to anyone who is provided with or obtains a copy of Work Material without the Service Provider's consent.
3.1. The Client must pay to the Service Provider the Fees for the Services and the Materials on or before the Commencement Date. This clause 3.1 does not apply if the Application indicates that a Third Party Payer has agreed to pay the Fees in full.
3.2. The Service Provider is not obliged to provide any Services or Materials until the Fees are paid in full, whether payable by the Client or a Third Party Payer (or both of them). Without limiting any other rights the Service Provider may have, if the Service Provider provides any Services or Materials before full payment of the Fees, the Service Provider may at any time suspend or terminate the Services or require the return of Materials, in whole or in part, or retain or withhold any Information the Service Provider holds in relation to the Services, until the Fees are paid in full.
3.3. Unless GST is expressly included, the Fees do not include GST.
3.4. To the extent that any supply made under or in connection with this agreement is a taxable supply, the Client agrees that the Fees payable for this supply will be increased by an amount equal to the GST payable by the Service Provider in respect of that supply.
3.5. The Service Provider must issue a tax invoice for the Fees, and the GST amount on any taxable supply is not payable until the tax invoice is issued.
3.6. If the Service Provider is required to provide Information about the Client or the Pharmacy Business, or the Services, to comply with a statutory obligation, court order or other compulsory process, the Client must pay all of the Service Provider's reasonable costs and expenses incurred by it in doing so, unless the requirement to provide the Information is caused by the neglect or default of the Service Provider.
4.1. The Client agrees to cooperate with the Service Provider and provide the Service Provider with all reasonable assistance so that the Service Provider can provide the Services and Materials in accordance with this agreement. This includes providing the Service Provider with timely and reasonable access, as appropriate, to the Client's premises, facilities, Information and representatives.
4.2. The Client must provide the Service Provider with accurate and complete Information relevant to the provision of the Services, and update that Information if there has been any material change to it that is relevant to the Services.
4.3. The Client acknowledges and agrees that:
5.1. The Services include access to the Web-based Technology (Online Services). The Service Provider grants to the Client a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Web-based Technology solely in connection with the Pharmacy Business. The Client may only access the Online Services for the purpose of analysing reports, data and other information relating to the Pharmacy Business (Online Data), and may not access and use the Online Services for any other purpose.
5.2. The Client is responsible for any telephone, internet, electronic e-mail facilities and any other hardware and software systems that the Service Provider considers necessary for the Client to access and use the Web-based Technology.
5.3. Upon completing the Service Provider's registration process for access to and use of the Web-based Technology, and subject to payment of the Fees, the Service Provider will provide the Client with an account designation and password for the Pharmacy Business (account ID and password).
5.4. The Client will access the Web-based Technology using the account ID and password. The Client must keep its account ID and password confidential and secure against any improper or unauthorised use or disclosure, and immediately notify the Service Provider of any unauthorised use of the account ID and password.
5.5. The Client is responsible for maintaining the confidentiality of its account ID and password and for all activities that occur under the Client's account. The Service Provider is not liable for any loss or damage caused by the Client's failure to properly safeguard its account ID and password and access to its account.
6.1. The Client indemnifies and must keep indemnified the Service Provider and its Associates and hold the Service Provider and its Associates harmless from and against all Loss they suffer or incur arising in any way from or in connection with a breach by the Client of its obligations under this agreement. The Service Provider holds the benefit of this indemnity for itself personally, and on trust for each of its Associates.
6.2. Except for conditions, warranties and guarantees described in clause 6.4, the Service Provider excludes all terms, conditions, warranties and guarantees implied by custom, the general law or statute, or that statute applies to the supply of goods and services to the Client.
6.3. Without in any way limiting clause 6.2, the Online Services and the Online Data are provided by the Service Provider on an “as is” and “as available” basis, and neither the Service Provider, nor its Associates, warrant or represent that the Online Services and Online Data are accurate, complete, reliable, timely, uninterrupted, current, secure or free from errors, defects or omissions. The Client agrees to use the Online Services and the Online Data at its own risk.
6.4. Any condition, warranty or guarantee that any statute applies to the supply by the Service Provider to the Client of any goods or services under this agreement is taken to be included in this agreement, if that statute renders void or prohibits contractual provisions which:
6.5. To the maximum extent permitted by law, the Service Provider’s liability to the Client for any breach of a Non-excludable Guarantee is limited, at the Service Provider’s option, to:
6.6. The Service Provider excludes all liability to the Client, in tort, contract or otherwise for any:
6.7. The Service Provider limits its aggregate liability to the Client in connection with this agreement and all Services, to an amount equal to $10,000.
7.1. A party shall not, without the prior written approval of the other party, disclose the other party's Confidential Information.
7.2. The Service Provider agrees that it will only use or disclose the Client's Confidential Information to provide the Services or any other services that the Client requests. Disclosure to the Service Provider's Associates is permitted to enable the provision of the Services. The Service Provider may disclose the Client's Information to the Service Provider's professional advisers and insurers.
7.3. Clause 7.1 does not impose obligations concerning Confidential Information which:
7.4. It is not a breach of clause 7.1 for a party to disclose Confidential Information which the party is obliged by law to disclose to the person to whom it is disclosed, provided that the party immediately notifies the other party of the particulars of the required disclosure and provides the other party with all assistance reasonably necessary to enable the other party to take any steps available to it to prevent or limit disclosure or to ensure that it occurs subject to an obligation of confidentiality.
7.5. Each party shall take all reasonable steps to ensure that its Associates, do not make public or disclose the other party's Confidential Information.
7.6. Each party must:
7.7. The Client must use reasonable endeavours to assist the Service Provider to comply with all Privacy Obligations.
7.8. The Client agrees that the Service Provider may aggregate the Client's Information with information and data obtained by the Service Provider from other sources, and use, disclose, license and sell that de-identified and aggregated information and data for research, advice, evaluation and benchmarking purposes.
7.9. Each party acknowledges that monetary damages alone would not be adequate compensation to a party for the other party's breach of its obligations under this clause 7 and that specific performance of those obligations is an appropriate remedy.
8.1. The Service Provider (or its subcontractors) will retain ownership of all Intellectual Property in the Work Material. The Service Provider grants to the Client a royalty free, non-exclusive, perpetual licence to use and reproduce any Reports for the sole purpose of enabling, and only to the extent necessary to enable, the Client to have the benefit of the Services, but only in respect of the conduct of the Pharmacy Business.
8.2. The Client retains all Intellectual Property in the Client's Information.
8.3. The Service Provider retains, or holds a licence to use, all Intellectual Property owned by or licensed to the Service Provider which exists before the date of this agreement, or which is discovered by or acquired by the Service Provider independently of this agreement, and which is used or made available by the Service Provider under or in connection with this agreement, and includes Intellectual Property Rights in the Web-based Technology and the Materials that form part of the Services.
9.1. Either party may terminate this agreement immediately by giving notice in writing to the other party (Defaulting Party) if the Defaulting Party:
9.2. The Service Provider may terminate this agreement immediately by giving notice in writing to the Client if:
9.3. On termination of this agreement:
10.1. The Service Provider is not responsible to the Client or anyone else for any failure in providing the Services caused by an Unexpected Delay. The Service Provider will notify the Client if there is a delay that will affect the Services and, if known to the Service Provider, the cause of the delay. The Client acknowledges that this agreement will be varied to include any change to the scope of the Services, the Fees or the time frames for completion of the Services if any delay requires it.
10.2. If the Service Provider is required to perform additional services because of an Unexpected Delay, then this agreement will also be varied to include those additional services and additional Fees that apply.
11.1. Before bringing a legal claim or starting legal proceedings each party agrees to use reasonable endeavours to resolve, by mediation with the other party, any dispute that arises in connection with this agreement.
11.2. This clause 11 does not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a court which may be urgently required.
12.1. The Client engages the Service Provider as an independent contractor. This agreement does not create a relationship of employment, agency, joint venture or partnership between the parties, and the Service Provider is not a fiduciary of the Client.\
12.2. Neither party will act or represent itself as an agent of the other, or assume or create any obligation on behalf of, or in the name of the other.
13.1. Further Assurance: Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this agreement.
13.2. Severability: Any provision of this agreement that is invalid or unenforceable in any jurisdiction must in relation to that jurisdiction:
13.3. Change in Law: If there is any change in law (including changes to legislation, its interpretation, application or enforcement) which in the Service Provider’s reasonable opinion results in the Service Provider not being able to provide the Services or that makes the Service Provider's business no longer commercially viable for the Service Provider, the parties will undertake good faith negotiations to amend their obligations under this agreement so that the Service Provider's and the Client's respective businesses maintain an acceptable level of profitability.
13.4. Changes by Service Provider: Unless otherwise prevented by law, the Service Provider may, by at least one month's notice to the Client, alter or vary this agreement, as long as the alteration or variation does not increase the Fees or materially reduce or detract from the Services and Materials that are to be provided under this agreement.
13.5. Variation: An amendment or variation to this agreement is not effective unless it is:
13.6. Waiver: The failure of a party at any time to insist on performance by the other party of any obligation under this agreement is not a waiver of its right:
13.8. Governing law and jurisdiction: The law of the Australian Capital Territory governs this agreement and the parties submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory and of the Commonwealth of Australia.
13.9. Notices: Any notice or other communication under or in connection with this agreement including any request, demand, consent or approval:
13.10. Liability of Parties: If a party consists of more than one person:
In this agreement: