Terms and Conditions

1. TERM AND PREVIOUS AGREEMENTS

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. ENGAGEMENT TO PROVIDE SERVICES

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:

1. at the request of the Client and the Third Party Payer; and
2. in consideration for payment of the Fees in full, and the Client entering into this agreement.

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. FEES

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.

CLIENT'S OBLIGATIONS

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:

1. the Service Provider relies on the Information provided by the Client;
2. the Service Provider's ability to provide the Services depends on the Client meeting its obligations under this agreement, and responding to the Service Provider's requests promptly and effectively;
3. the Services may include advice and recommendations, but all decisions in connection with the implementation of advice or recommendations are made by the Client and are the Client's responsibility; and
4. the Service Provider is not liable for any default that arises because the Client does not meet its obligations or fulfil its responsibilities under this agreement.

5. WEB-BASED TECHNOLOGY

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. INDEMNITY AND LIABILITY

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:

1. exclude, restrict or modify; or
2. which have the effect of excluding, restricting or modifying,

the application of, exercise of a right conferred by, or any liability under, such condition, warranty or guarantee (Non-excludable Guarantee)).

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:

1. in respect of the supply of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; or
2. in respect of the supply of services, resupplying the services or paying the cost of having the services resupplied.

6.6. The Service Provider excludes all liability to the Client, in tort, contract or otherwise for any:

1. loss of profits, opportunity, revenue, data, goodwill, business or anticipated savings, pure economic loss, loss of value of equipment, (other than cost of repair) or expectation loss; or
2. any indirect, consequential, special, punitive, or exemplary loss or damage,

even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the Parties.

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. CONFIDENTIALITY AND PRIVACY

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:

1. at the date of this agreement is publicly available; or
2. subsequent to the date of this agreement becomes publicly available without breach of this agreement or an obligation of confidence owed to a party.

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:

1. not perform any act or omission, which may result in a breach or potential breach of the Privacy Act 1988 (Cth) or any other applicable privacy laws, or with any guidelines, directions or policies issued by a governmental agency (Privacy Obligations); and
2. not do anything that would cause the other party to be in breach of a Privacy Obligation.

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. INTELLECTUAL PROPERTY

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. TERMINATION

9.1. Either party may terminate this agreement immediately by giving notice in writing to the other party (Defaulting Party) if the Defaulting Party:

1. fails to carry out any material provision of this agreement, the failure is capable of being remedied, and the Defaulting Party does not remedy that failure within 20 Business Days of receiving written notice from the other party specifying the failure and requiring it to be remedied;
2. fails to comply with any material obligation, undertaking or warranty under this agreement and that failure is not, on any reasonable or economic basis, capable of remedy; or
3. is subject to an Insolvency Event.

9.2. The Service Provider may terminate this agreement immediately by giving notice in writing to the Client if:

1. the Client commits an act which in the reasonable opinion of the Service Provider materially affects the reputation of the Service Provider, any of its Related Bodies Corporate, or the Third Party Payer; or
2. the Client is guilty of any wilful neglect or misconduct; or
3. there is a change in circumstances beyond the Service Provider's reasonable control (such as regulatory related developments) that prevents the Service Provider from providing the Services to the Client.

9.3. On termination of this agreement:

1. unless this agreement expressly provides otherwise, all rights, benefits and authorisations granted by the Service Provider to the Client under this agreement will cease;
2. the Client must immediately stop using the Service Provider’s Intellectual Property;
3. the Client must immediately return to the Service Provider the Materials and all documents and materials containing the Service Provider's Confidential Information and any other property owned by the Service Provider;
4. unless a Third Party Payer has agreed to pay the Fees, the Client must pay the Service Provider the Fees for work carried out, or expenses incurred, by the Service Provider up to the date of termination;
5. the obligations of the parties will cease but the following clauses continue: clauses 6 (Indemnity and Liability), 7 (Confidentiality and Privacy, but not the right to use Confidential Information), 8 (Intellectual Property, but not the right to use Intellectual Property), 9.3 (Consequences on termination), 11 (Dispute Resolution), 13 (General Provisions) and 14 (Definitions and interpretation) ; and
6. accrued rights or remedies of either party are not affected.

10. UNEXPECTED DELAY

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. DISPUTE RESOLUTION

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. RELATIONSHIP

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. GENERAL PROVISIONS

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:

1. be read down to the minimum extent necessary to achieve its validity or enforceability, if applicable; and
2. be severed from this agreement in any other case, without invalidating or affecting the remaining provisions of this agreement or the validity or enforceability of that provision in any other 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:

1. in writing and signed by the parties; or
2. effected by notice from the Service Provider in accordance with clause 13.4.

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:

1. to insist on providing of, or to claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
2. at any other time to insist on performance of that or any other obligation of the other party under this agreement.

13.7. Assignment:

1. The Client may not assign, novate or otherwise transfer its rights or obligations under this agreement without the prior written consent of the Service Provider, such consent to be given or withheld or given conditionally at the Service Provider's absolute discretion.
2. The Service Provider may assign, novate or otherwise transfer any or all of its rights and obligations under this agreement to any other person without the consent of the Client.
3. The Service Provider may sub-contract the whole or any part of the Services.
4. Without prejudice to clause 13.7(b), the Client must execute any document as and when reasonably required by the Service Provider to give effect to any assignment, novation or other transfer contemplated by clause 13.7(b) or consented to by the Service Provider pursuant to clause 13.7(a).

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:

1. must be in writing;
2. must be sent to the address of the addressee set out in the Application or as otherwise notified by that party to the other party from time to time;
3. must be signed by the party making the communication or (on its behalf) by an authorised agent of, that party;
4. must be delivered or posted by prepaid post to the address, or sent by fax or email to the number or email address, of the addressee set out in the Application (as varied by any notice); and
5. will be deemed to be received by the addressee:
   1. (i) in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) Business Day after posting; and
   2. (ii) in the case of facsimile or email, when the sender's facsimile machine or computer generates written notification that the notice has been received by the addressee.

13.10. Liability of Parties: If a party consists of more than one person:

1. an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;
2. a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
3. a representation, warranty or undertaking made by those parties is made by each of them.

14. DEFINITIONS AND INTERPRETATION

14.1 Definitions

• agreement means the agreement that arises upon the Service Provider's acceptance of the Client's Application.
• Application means the Client's request for Services using the Web-based Technology.
• Associate of a person means the person’s Related Bodies Corporate and each of the following of the person and of the person’s Related Bodies Corporate: their shareholders, officers, employees, contractors and agents from time to time.
• Business Day means a day on which banks are open for business in Canberra excluding a Saturday, Sunday or public holiday.
• Client means the owner of the Pharmacy Business as set out in the Application.
• Commencement Date is the date specified in the Application for the commencement of the Services.
• Confidential Information Information is all information (whether in tangible or intangible form) of or concerning a party and its Associates, including information:
  1. regarding the terms of this agreement;
  2. of or regarding the actual or potential business or affairs (including financial position, internal management, policies and strategies, costs, pricing, liabilities, structures of contractual arrangements) of the party or any of its Associates;
  3. of or regarding owners, officers, employees, customers and contractors of, or other persons doing business with, the party or any of its Associates;
  4. that concerns or is the Intellectual Property of the party or any of its Associates,
  which is or has been (before or after the date of this agreement):
  5. disclosed by the party or its Associates under or in connection with this agreement; or
  6. learnt or acquired by another person in the performance of or in any way in connection with this agreement,
  and which is by its nature confidential or which is designated as confidential by the party or which the person receiving or obtaining it knows, or ought reasonably to know, is confidential.
• Fees are the fees for the Services as specified on the Web-based Technology when the Application is made, and if a Third Party Payer has agreed to pay the fees, those fees.
• GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time (GST Act) or any replacement or other relevant legislation and regulations.
• Information means any information, documents, materials, facts, instructions or Confidential Information provided by the Client or its Associates to the Service Provider or its Associates.
• Insolvency Event means:
  1. being an insolvent under administration or insolvent (each as defined in the Corporations Act); or
  2. having a controller (as defined in the Corporations Act) appointed; or
  3. being in receivership, in receivership and management, in statutory management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent); or
  4. being otherwise unable to pay debts when they fall due; or
  5. having something with the same or a similar effect happen under the laws of any jurisdiction.
• Intellectual Property means any and all intellectual property rights (including future rights) in any works throughout the world including rights which relate to trade marks, service marks, business names, inventions (including patents), designs, copyright (including rights in the nature of or analogous to copyright), know how, and any right to have Confidential Information kept confidential.
• Loss means all loss, damage, costs (including all reasonable legal costs on a full indemnity basis), expense or liability of any kind, whether direct or indirect or consequential, present or future, fixed or unascertained or actual or contingent and whether known or otherwise as at the date of this agreement.
• Materials means the materials that are requested by the Client, or that are otherwise specified, in the Application.
• Pharmacy Business means the pharmacy business the details of which (including the location, trading name and approval number) are set out in the Application.
• Related Bodies Corporate has the same meaning as set out in the Corporations Act 2001 (Cth).
• Reports means any reports or deliverables the Service Provider provides to the Client as a result of the Services or this agreement, including Online Data (as defined in clause 5.1).
• Service Provider means The Independent Pharmacies of Australia Group Pty Ltd ABN 73 609 137 546, 15-17 Chapel Street, Cremorne Victoria 3121.
• Services means the services the Client requests, or that are otherwise specified, in the Application.
• Term means the period described in the Application for the provision of the Services, commencing on the Commencement Date.
• Third Party Payer means the entity specified in the Application that has agreed to pay to the Service Provider the whole or part of the Fees for the Services and the Materials.
• Unexpected Delay means any delay in providing the Services that is caused or contributed to by an act or event (including the non-performance of the Client's obligations) that is beyond the Service Provider's control or was not reasonably foreseeable by the Service Provider at the date of this agreement.
• Web-based Technology means any web-based technology to which the Client is given access to obtain some or all of the Services, of which the Service Provider gives the Client notice from time to time.
• Work Material means any advice or materials including any documents, opinions, notes or other deliverables prepared by the Service Provider either alone or with the Client, or provided to the Client, as a result of this agreement, and includes any Reports.

14.2. Interpretation
In this agreement:

1. headings are for convenience only and do not affect interpretation, and unless the context indicates a contrary intention;
2. the expression "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated);
3. a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
4. words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
5. references to parties, clauses or schedules are references to parties, clauses and schedules to or of this agreement, and a reference to this agreement includes the details set out in the Application and on the Web-based Technology;
6. where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
7. if the payment of any money or doing of any act falls on a day which is not a Business Day, that payment must be made or that act must be done on the next Business Day;
8. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
9. words which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning when used in this agreement.