THE FOLLOWING ARE GLOBAL HEALTH LIMITED’S (Global Health) TERMS AND CONDITIONS OF THE PROVISION OF PROFESSIONAL SERVICES
1.PROVISION OF SERVICES BY OR ON BEHALF OF GLOBAL HEALTH
- Global Health’s rights and obligations under this Agreement may be exercised by any of:
(i) Global Health;
(ii) its related entities; and
(iii) any of their respective officers, employees, subcontractors, agents or representatives that Global Health may nominate from time to time.
- Fixed price quotes are only provided for work exceeding $10,000 or where contracts require it. All other quotes are on a Time & Materials basis, where services will be charged in accordance with the Rate Card set out in clause 1. Any aspect of the services mentioned in Clause 1 that may be subject to a Time and Materials basis, including where the full extent of the work required has not been established, will be noted in Clause 1. Global Health will provide advance notice if the total amount chargeable appears likely to exceed the estimated cost.
- Any of Global Health’s software (“Application Software”) that is modified or generated as a result of the Professional Services offered in this Agreement is subject to the separate agreement for the software between Global Health and the Customer, or if there is no such agreement, the terms and conditions for the software that may be found on the relevant software product website(s) at: www.global-health.com, as amended from time to time.
- In addition to the Fee set out in clause 1, the Customer will pay:
(i) any additional amounts specified in this Agreement for late payments or the provision of any services and expenses set out in clause 6 (Out of Pocket Expenses); and
(ii) goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST”) if GST is imposed on any supply made under this Agreement. The Customer must pay to Global Health an amount equal to the GST payable on the taxable supply in addition to, and at the same time as, payment for the taxable supply is required to be made under this Agreement. Global Health will provide the Customer with a valid tax invoice at or before the time of payment; and
(iii) all amounts due and payable to Global Health under this Agreement, no later than fourteen (14) days after the date of issue of the Global Health invoice.
- If any amount is not paid within fourteen (14) days of the date of issue of the Global Health invoice, Global Health may charge the Customer interest on the outstanding amount, at a rate equal to the Commonwealth Bank of Australia (ABN 48 123 123 124) standard overdraft rate as at the due date for payment, plus 2 per cent per annum until the payment is made provided that, in the event of a dispute as to outstanding amount, the outstanding amount shall only be the subject of an interest charge if the dispute is resolved in Global Health’s favour.
- In addition to any other rights or remedies available to Global Health, the Customer agrees that Global Health is entitled to withhold or suspend the provision of any and all services under this Agreement to the Customer if the Customer fails to make any payment which is not reasonably disputed by the Customer under this Agreement.
- If the Customer does not proceed after acceptance of any Software, the Customer will pay a cancellation fee of 7.5% of the Fee set out in clause 1 and all amounts then due by the Customer under clause 6 (Out of Pocket Expenses).
3. OUT OF POCKET EXPENSES
The following services and expenses are not included in clause 1 and will be charged and invoiced to the Customer at Global Health’s then prevailing standard rates and terms as notified to the Customer:
- professional services for performing work related to items such as on-site service, support, installation, training or correction of corrupt data not caused by an Application Software defect or malfunction (including errors due to problems with the Customer’s operating system, operator keying errors or misuse); and
- out of pocket expenses for items such as ISD (international subscriber dialling) or IDD (international direct dialling) charges, travel, accommodation, processing, handling, shipping and media charges, which will be charged to the Customer at cost, provided that the out of pocket expenses have not been caused or incurred due to an Application Software defect or malfunction.
The Customer will pay all taxes, duties, fees or other government levies or charges which may be imposed on or in respect of the Professional Services or out of pocket expenses.
4. AMOUNTS PAYABLE IN THE EVENT OF DELAY BY THE CUSTOMER
- Notwithstanding anything to the contrary in this Agreement, the Total Contract Fee set out in clause 1 is valid for a period of six (6) months from the Commencement Date. Any delay in the commencement of execution of the Professional Services longer than six (6) months from the Commencement Date, for reasons other than the default of Global Health, will result in the entire Total Contract Fee (as set out in clause 1) becoming immediately due and payable by the Customer to Global Health, being a fair and reasonable pre-estimation of the costs and expenses actually or reasonably expected to be incurred or legally committed by Global Health, including its commissioning and planning for configuration of the Application Software and deployment of administrative and other management resources. The supply of Application Software and any Third Party Software and components after that six (6) month period shall be subject to re-quotation at prevailing prices and the difference (if any) between the Total Contract Fee set out in clause 1 and the re-quotation of the Total Contract Fee will be payable pro-rata by the Customer to Global Health no later than 14 days after the date of issue of the Global Health invoice.
- The Customer agrees that notwithstanding the instalments set out in clause 5 (Payments), if any of the actions corresponding to those instalments is delayed by more than one (1) month for reasons which are not due to the default of Global Health or its subcontractors, the Fee for the professional services supplied to the Customer up to the date when the relevant instalment(s) was due for payment will become immediately due and payable by the Customer to Global Health.
5. WARRANTIES AND LIMITATION OF LIABILITY
In addition to any other warranties provided by Global Health in this Agreement, it warrants
- that for Customers that are consumers within the meaning of the Australian Consumer Law:
The Application Software, and any other goods or services supplied under this Agreement may be the subject of non-excludable guarantees which are regulated by Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”). If the Customer is a consumer within the meaning of the Australian Consumer Law, Global Health provides the following mandatory statement to the Customer:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
These guarantees are in addition to the other warranties provided by Global Health in this Agreement.
- For all other Customers
Except as expressly stated in this Agreement, all terms, conditions, warranties, inducements or representations, whether express or implied, in relation to this Agreement are excluded to the maximum extent permitted by law. Where any Act of Parliament implies any term, condition or warranty into this Agreement which cannot be excluded, such term, condition or warranty shall be deemed to be included in this Agreement.
- Except as expressly stated in this Agreement, the Customer warrants that it has not relied upon any other representations made by Global Health or any of its representatives, or any descriptions, illustrations or specifications contained in any document produced by Global Health or any of its representatives.
Limitation of Liability
- The liability of Global Health for any breach of a term, condition or warranty in this Agreement (including a non-excludable guarantee under the Australian Consumer Law where the goods or services are not ordinarily acquired for personal, domestic or household use or consumption and the guarantee does not arise under any of sections 51, 52 or 53 of the Australian Consumer Law) is limited to re-supply of the professional services.
- Global Health will not be under any liability to the Customer in respect of any loss or damage, including consequential loss or damage, incurred directly or indirectly.
6. WARRANTY LIMITATION
To the maximum extent permitted by law, any warranty given by Global Health in this Agreement is subject to the Customer using Global Health’s Application Software that has been created or modified as a result of the Professional Services provided under this Agreement, strictly in accordance with the terms of the agreement for provision of the Application Software between Global Health and the Customer.
- If a party is in breach of this Agreement or any other agreement between the parties, the other party may give the defaulting party a written notice requiring it to remedy the breach. If the breach is not remedied within sixty (60) days of receipt of that notice, the non-defaulting party may terminate this Agreement and all other agreements between the parties.
- If Global Health breaches any of its obligations under this Agreement and no service credit is otherwise payable by Global Health for the breach, the Customer may terminate this Agreement by written notice to Global Health if:
(i) four (4) separate breaches occur during any single month of this Agreement; or
(ii) ten (10) separate breaches occur during any consecutive two months of this Agreement.
- This Agreement may be terminated at any time without cause, by either party giving the other party not less than three (3) months’ notice in writing to the other party of the proposed termination.
- On termination, the Customer shall pay to Global Health:
(i) the costs of work undertaken to date; and
(ii) any other costs including out-of-pocket expenses that have been incurred; and
(iii) any licence or other fees and costs in respect of all Third Party Software which is retained by the Customer and which has been paid by Global Health on behalf of the Customer.
- For the avoidance of doubt, the Customer shall not be entitled to any refund or reimbursement of any part of the Fee that has already been paid, whether or not it relates to the period before or after the date of termination, and reasonable pre-estimation of the costs and expenses actually or reasonably expected to be incurred or legally committed by Global Health in its anticipation of performance of this Agreement, including its commissioning and planning for configuration of the Application Software and deployment of administrative and other management resources.
8. PRIVACY LAWS AND CONSENTS
- Global Health will take all reasonable steps to keep the personal information (as defined in the Privacy Act 1988 (Cth)) supplied by the Customer secure. Only authorised Global Health employees or authorised subcontractors have access to any database of the Customer (including any personal information stored within it) to perform the functions and services contemplated by this Agreement and to comply with any applicable laws which may mandate disclosure, but for no other purposes.
- Unless requested otherwise by the Customer, all data that Global Health processes as part of its provision of Professional Services is stored in data centres in Australia; the data centres are provided by Global Health’s service provider who is required to comply with the Privacy Act 1988 (Cth), as are Global Health’s employees and authorised subcontractors.
- The Customer acknowledges that the storage and/or transmission of personal information and/or patient data may require the informed consent of the persons concerned and that the responsibility for obtaining such consents is solely the Customer’s. The Customer agrees to comply with all applicable laws (including the Privacy Act 1988 (Cth)), rules and regulations and to obtain all consents, approvals, permits and licences required by law or any applicable regulatory body to enable the Customer’s use of the Application Software and the making available of personal information and data to Global Health, its employees and approved subcontractors in order to perform Global Health’s obligations under this Agreement. The Customer agrees to indemnify and hold Global Health harmless against all actions, claims, liability or loss whatsoever arising from the failure of the Customer to obtain the required consents, approvals, permits or licences or to comply with any other requirements of law or imposed by any applicable regulatory body.
9. COMMERCIAL ELECTRONIC MESSAGES AND DIRECT MARKETING
By executing this Agreement, the Customer consents to Global Health sending the Customer (and its employees, to their work email addresses and/or mobile telephones or landline telephones, having advised those employees of Global Health’s rights under this clause 10) commercial electronic messages and other direct marketing communications concerning the available goods or services of Global Health. The Customer or any of its individual employees may opt-out of receiving such commercial electronic messages or direct marketing by notifying Global Health in writing, including by email to firstname.lastname@example.org
10. ACCOUNT MANAGEMENT
The Customer’s account is managed via Global Health’s account management system. The Customer is responsible for ensuring that its email addresses and account information provided to Global Health remain up to date. Global Health is not responsible for the Customer’s failure to receive any communications due to the contact information for the Customer being out of date.
- The Customer will treat information relating to Global Health’s Application Software, Global Health or the clientele of Global Health as confidential and will not cause to be copied or disclosed any details of such information to a third party, without Global Health’s prior written consent. The Customer will only use such information to enable it to use the Application Software for the Permitted Use.
- Global Health will treat information it acquires from the Customer relating to the operation of its business or its clientele as confidential and will not cause to be copied or disclosed any details of such information to a third party, unless this is required to perform Global Health’s obligations under this Agreement or to comply with any legal requirements or orders.
Except where expressly stated otherwise:
- Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or any part of it.
- The use of words such as for example or including are not words of limitation.
- Global Health’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Global Health’s right to comply with governmental, court and law enforcement requests or requirements relating to the Customer’s use of the Application Software, information or data stored in connection with it, or information provided to, or collated by, Global Health with respect to such use.
- If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including the warranty disclaimers and liability limitations set out above, then the invalid or unenforceable provision will be deemed severed and the remainder of the Agreement will be read down so as to continue in full force and effect.
- No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by Global Health in respect of any breach of the Customer’s obligations under this Agreement is to operate as a waiver of the subsequent enforcement of that obligation or be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of any subsequent or other breach.
- Unless otherwise specified herein, this Agreement constitutes the entire agreement between the Customer and Global Health with respect to the provision of Professional Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Customer and Global Health with respect to the provision of the Professional Services stated in this Agreement.
- No joint venture, partnership, employment, or agency relationship exists between Global Health and the Customer as a result of this Agreement.
- The Customer will not, whether by itself or by assisting third parties to do so, either during the term of this Agreement or for a period of twelve (12) months after the termination of this Agreement, endeavour to induce away from Global Health or any related entity of Global Health any of its employees, agents or subcontractors or to cause them to breach their respective employment or other contracts with Global Health or any of its related entities.
- This Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.
13. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Victoria, Australia. The parties submit unconditionally to the non-exclusive jurisdiction of the courts of that State.