Agreement means the Solution Supply Agreement between the Supplier and the Customer comprised of:
at any time means at any time and from time to time.
Business Day means a day which is not a Saturday, Sunday or public holiday in the relevant State or Territory:
Claim means any proceeding, cause of action, suit, claim or demand (including those arising out of a claim by a third party).
Confidential Information means any written or oral information that is not Excluded Information and that:
Consequential Loss means any loss recoverable at law beyond loss arising in the usual course of things, including loss and associated Costs which is consequential on other loss, loss of opportunity or goodwill, loss of profits, loss of anticipated savings or business and loss of value of any equipment, but which is not Costs incurred in assessing, mitigating or remedying any breach of this Agreement or necessarily incurred to comply with an obligation or exercise a right under this Agreement.
Costs means any cost, expense, charge, payment, outgoing or other expenditure of any nature whether accrued or paid and includes legal costs.
Customer means the Customer specified in the Solution Order Form.
Disclosing Party means a party who gives Confidential Information to the other party.
Excluded Information means information that the Receiving Party can establish:
Force Majeure Event means any occurrence or omission as a result of which the Supplier is prevented or delayed in performing its obligations under this Agreement and which is beyond the reasonable control of the Supplier.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Government Agency means any government, governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Insolvency Event means the event that occurs when:
Intellectual Property means all intellectual and industrial property rights conferred by statute, common law or in equity, subsisting throughout the world whether now or in the future, whether registered or unregistered, including in relation to trade marks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information (including the right to enforce an obligation to keep information confidential), trade secrets, technical data and know-how, rights in databases and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organization of 14 July 1967 as amended from time to time, and any applications for registration of any of the above, and the right to apply for any such applications.
KPIs means the Key Performance Indicators specified in the Solution Order Form.
Moral Rights means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights granted under any foreign law.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
Personnel means a person’s officers, employees, agents and contractors (including sub-contractors).
Pre-Existing Intellectual Property means Intellectual Property owned by a party or a third party that was in existence before the date of this Agreement or that is created or developed in the course of the performance of this Agreement.
Prices means the prices payable for the Solution supplied under this Agreement specified in the Solution Order Form.
Privacy Law means all laws, guidelines and directives concerning the collection, use and disclosure of personal information (including health information) to which a party may be subject including the Privacy Act 1988 (Cth).
Purchase Order means any purchase order issued by the Customer to the Supplier under this Agreement in relation to the supply of Specified Solution Components.
Receiving Party means a party to whom Confidential Information is given.
Solution means the Solution described and specified in the Solution Order Form that is to be supplied by the Supplier to the Customer under this Agreement and, where the context allows, a reference to “Solution” means the Solution and each of its relevant individual components specified in the Solution Order Form.
Solution Description means the Solution Description specified in the Solution Order Form.
Solution Order Form means the Solution Order Form to which these General Terms and Conditions are attached or which refer to these General Terms and Conditions.
Specified Solution Components means all components of the Solution specified in the Solution Order Form which the Customer requires the Supplier to supply at any time.
Standards means standards published by Standards Australia or, if appropriate, the International Organization for Standardization, from time to time.
Supplier means the Supplier specified in the Solution Order Form.
Term means the term of this Agreement, which commences on the commencement date (as specified in the Solution Order Form) and concludes when this Agreement is terminated (whether pursuant to clause 2.1 or otherwise).
Year means, for the purposes of clause 15.1(a), the period commencing on the commencement date as specified in the Solution Order Form and ending on the anniversary of that date, and each subsequent one year period commencing immediately following the end of the preceding Year.
1.3 Specifying anything in this Agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.
1.4 If an act to be done by a party on or by a given day is done after 5.30pm (Sydney time) on that day, it is taken to be done on the next day.
1.5 If an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day.
1.6 Headings are for convenience only. They do not affect the interpretation of this Agreement.
1.7 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
2.1 This Agreement commences on the commencement date, and operates for the term, each as specified in the Solution Order Form and continues after that period expires until terminated by one party giving the other at least 20 Business Days’ notice (unless otherwise terminated earlier in accordance with this Agreement).
3.1 The Supplier must supply the Solution to the Customer in the manner specified in this Agreement.
3.2 The Supplier must ensure that, at all times:
4.1 If the Solution Order Form indicates that the Customer will use Purchase Orders in order to be supplied Specified Solution Components, the Customer must ensure that any Purchase Orders issued comply with the requirements for Purchase Orders specified in the Solution Order Form. The Customer may at any time issue Purchase Orders to the Supplier specifying the Specified Solution Components that it requires. Each Purchase Order issued by the Customer incorporates the terms of this Agreement.
4.2 Unless the Solution Order Form indicates otherwise, nothing in this Agreement requires the Customer to obtain a minimum quantity or volume of Specified Solution Components from the Supplier.
5.1 Risk in goods supplied under this Agreement passes to the Customer on delivery.
5.2 Title to goods that are purchased by the Customer under this Agreement does not pass to the Customer until the later of the date that:
6.1 The Customer agrees to pay the Supplier the Prices.
6.2 The Supplier may review the Prices when and in the manner specified in the Solution Order Form. If no price review mechanism is inserted in the Solution Order Form, the Prices are fixed for the Term.
7.1 The Supplier will invoice the Customer monthly for all Prices payable under this Agreement to the Supplier for that month.
7.2 Subject to clause 7.3, the Customer will pay all invoices issued by the Supplier within 20 Business Days after receipt of an invoice.
7.3 Where there is a dispute concerning the amount of an invoice:
in which case clause 7.2 applies.
7.4 The Supplier may charge interest or late payment fees, commensurate with its finance and administrative costs, in respect of any invoice that is not paid by the due date for payment.
7.5 Any amount payable under this Agreement is to be paid in Australian Dollars unless this Agreement expressly provides otherwise.
8.1 All words in this clause 8 which are defined in the GST Act have a corresponding meaning.
8.2 Unless this Agreement says otherwise, all Prices exclude GST.
8.3 Where a party is taken to have made a supply to the other party, the recipient must, in addition to the consideration payable for the supply and when paying that consideration, also pay to the maker of the supply an amount equal to the GST payable in respect of that supply unless this Agreement states that the amount of consideration for that supply includes GST.
8.4 The maker of a supply must give the recipient a tax invoice in the form required by the GST Act at or before the time it receives payment of the consideration for that supply or, where no consideration is payable, at the same time it receives payment of the GST in relation to that supply.
8.5 Where a party is required to reimburse or indemnify another party under this Agreement, the amount it must reimburse or indemnify is the amount paid or payable by the party to be reimbursed or indemnified, less the amount of any input tax credit available to that party.
9.1 The persons specified in the Solution Order Form will be the principal representatives of each party for day-to-day liaison in connection with this Agreement.
9.2 The parties must ensure that:
9.3 The parties’ representatives will meet whenever reasonably required by a party to review and discuss the operation of this Agreement and the relationship between the parties generally.
10.1 The Supplier must comply with the reporting obligations specified in the Solution Order Form.
10.2 The Supplier must comply with the KPIs in performing its obligations under this Agreement.
11.1 Throughout the Term, the Supplier must hold the following policies of insurance:
11.2 The Supplier must, if and when requested by the Customer, give the Customer evidence that it is holding the insurance policies required by clause 11.1.
12.1 Nothing in this Agreement affects the ownership of Pre-Existing Intellectual Property.
12.2 The Supplier grants the Customer a royalty-free, irrevocable, world-wide, non-exclusive licence (including the right to sub-licence) for the Term in respect of all Pre-Existing Intellectual Property owned by the Supplier to use the Pre-Existing Intellectual Property to the extent necessary for the Customer to obtain the full benefit of the Solution, the Specified Solution Components and anything else supplied under this Agreement.
12.3 The Supplier warrants that the Customer’s use of the Solution will not infringe the Moral Rights of the Supplier’s Personnel. The Supplier must ensure that no such person commences or maintains any Claim against the Customer or its Personnel for the infringement of any of their Moral Rights.
13.1 Subject to clause 13.2, the Receiving Party must not:
13.2 Clause 13.1 does not apply to the Receiving Party if:
13.3 The Receiving Party must use reasonable endeavours to:
13.4 Upon termination of this Agreement, the Receiving Party must immediately:
13.5 Each party must comply and assist the other party to comply with their respective obligations under Privacy Law.
13.6 The obligations concerning Confidential Information imposed by this clause 13 are continuing obligations that are not affected by the termination of this Agreement.
14.1 An event of default occurs in relation to a party (Defaulting Party) if:
14.2 If an event of default occurs in relation to a Defaulting Party, the Non-Defaulting Party may terminate this Agreement by giving the Defaulting Party notice expiring at any time.
14.3 The termination of this Agreement does not affect any rights of a party that may have accrued before the date of termination.
15.1 Despite any other provision of this Agreement and subject to any rights that the law confers on the Customer that cannot be limited or excluded by law:
(a) a party’s total liability for all Claims (other than in relation to outstanding and unpaid Prices) arising out of or in connection with this Agreement in any Year will not exceed the total of all Prices paid to the Supplier under this Agreement in that Year; and
(b) neither party will be liable for Consequential Loss.
15.2 Clause 15.1 applies whether the Claims are based on breach of contract, tort (including negligence), under a warranty or indemnity, under statute, in equity or otherwise.
16.1 If the Supplier is affected or is likely to be affected by a Force Majeure Event:
16.2 The Supplier must use reasonable endeavours to remove, overcome or minimise the effects of a Force Majeure Event as quickly as possible, but this does not require the Supplier to act contrary to its own interests in doing so.
17.1 To the extent that this Agreement contemplates that the Supplier will provide all or part of the Solution at the Customer’s premises, the Customer must:
17.2 The Supplier must, whilst performing services at the Customer’s premises:
18.1 A notice, request, demand, consent or approval (Notice) is given by a party if it is in writing, signed by or on behalf of the party giving it and:
or any alternative address or email address for Notices that a party notifies the other of from time to time.
18.2 A Notice is taken to have been received by the receiving party:
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee's time) it is deemed to be received at 9.00am on the following Business Day.
18.3 A Notice can be relied upon by the addressee, and the addressee is not liable to any other person for any consequences of that reliance, if the addressee reasonably believes it to be genuine, correct and authorised by the sender.
19.1 This Agreement constitutes the entire agreement of the parties about its subject matter. It supersedes all previous agreements, understandings and negotiations on that subject matter.
19.2 If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.
19.3 A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the parties. Any waiver granted will only apply in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach on any other occasion.
19.4 The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
19.5 Rights given to the parties under this Agreement and the parties’ liabilities under it are not affected by anything which might otherwise affect them by law.
19.6 If part or all of any clause of this Agreement is illegal or otherwise unenforceable it will be read down or severed to the extent of that illegality or unenforceability and the remaining provisions of this Agreement continue in force unaffected.
19.7 Each party agrees, at its own cost, to do anything necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
19.8 No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
19.9 Nothing in this Agreement creates the relationship of partnership, principal and agent or joint venture between the parties to this Agreement.
19.10 An obligation of the Supplier may be performed by the Supplier or wholly or partly by any subsidiary of Healius Ltd (ACN 064 530 516) on behalf of the Supplier.
19.11 This Agreement is governed by the law in force in the State of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place.
19.12 19.12 This agreement may consist of a number of copies, each signed by one or more parties to the agreement. If there are a number of signed copies they are treated as making up the one document and the date on which the last counterpart is executed is the date of the agreement.
Version – March 2024