Definitions

In these Terms and Conditions the following definitions apply:-

• "Client" means the Client and the Service Entity named on the Order Form (and if more than one all of them jointly and severally). If the client includes a business name which is carried on by a principal or partners, that / those individuals are bound jointly and severally.
• "Materials" includes travel and out of pocket expenses.
• "Order Form" means the Order Form attached to these Terms and Conditions.
• "Related bodies corporate" takes its meaning from "related body corporate" as defined in s9 of the Corporations Act (as amended from time to time).
• "Supply Agreement" means the Order Form, these Terms and Conditions, Investment Proposal and Project Schedule (in the event of conflict, in the descending order of priority in which listed).
• "User Licence Agreement" means the User Licence Agreement as delivered by OP to the Client (as varied from time to time by notice in writing by OP to the Client at the sole discretion and election of OP) PROVIDED only that the number of users may not be reduced by OP during a current licence term.

Software Licence

The Client is granted a one year licence to use OP software specified on the Order Form for the number of users and as specified on the User Licence Agreement. Subject to the Client not being in breach of any obligation to OP (under the Supply Agreement or any other agreement or arrangement) the Client will be offered renewal of CFP annually on such terms as OP shall determine. Should the annual CFP fee not be paid by the due date, the Client will have rights to use the OP software for a further period of 90 days in which period the Client may find another solution or provider of Practice Management Software. After the 90 day period, the Client will immediately lose the right to use the OP software. During this period, should the Client wish to renew the annual CFP, there will be a reenrolment fee payable (in advance) deemed to be 6 months worth of CFP (at the new rate).

The Client undertakes to prevent unlicensed use of or access to the OP software. Use of the OP software is for the Client's running of their practice only on hardware controlled by the Client. Aiding , assisting or allowing any other person not a party to the Supply Agreement to use the OP software is strictly prohibited. The Client shall not resell, loan or licence the OP software to any other person without the express prior consent in writing of OP. The Client has no rights to pass OP software in any way shape or form, including installation, implementation, data migration, data take-on, training, support or consulting without the express consent in writing of OP.

Third Party Software

OP reserves the right to use and integrate third-party components into its software. All software from other manufacturers is subject to the licensing terms and conditions of the third party supplier. The Client agrees to comply with all terms and conditions associated with the use and distribution of the third party supplier. OP is not obliged to change OP software due to Third Party changes. OP may periodically announce scheduled release dates for software but accepts no responsibility for any delays or failure to comply with a scheduled delivery date due to changes to third-party software. OP makes no representation, warranty or guarantee whatsoever in relation to the third-party products or services and OP assumes no liability whatsoever in relation to the third party products and services being upgraded. If OP chooses to change OP software in line with Third Party changes OP may take a reasonable time to develop and test these changes appropriately prior to the release to market.

OP reserves the right to change preferred 3rd party supplier interfaces without notice to ensure the best long term viability of our products and customers accept they may need to implement new software to accommodate these changes.

Term and Termination

OP may (without affecting any other rights or remedies it may have) terminate this Supply Agreement by notice in writing to the Client:

• immediately without advance notice by denying access to the Support Desk and software upgrades if the Client becomes subject to any form of insolvency administration; or
• the Client commits any breach of its obligations under this Supply Agreement (or any other agreement or arrangement with OP) and the Client fails to remedy such breach within 7 days of receiving written notice from OP requesting the Client to remedy the breach.

Subject to OP's rights of termination, the Client may terminate this Supply Agreement by giving OP at least thirty (30) days advance written notice of such termination PROVIDED THAT (without limitation to OP's rights) all monies then paid by the Client to OP whether in the nature of prepayment or otherwise shall be forfeited to and be the absolute property of OP.

Intellectual Property

All intellectual Property in OP software is owned by GlobalX Information Services Pty Ltd ACN 073 436 414 ("GlobalX"). GlobalX has licensed OP (one of its subsidiaries) to allow licences to be granted by OP to the Client. The Client acknowledges the copyright of GlobalX in all OP software and documentation including customised programs and undertakes to prevent any use of the copyright materials in breach of copyright. To be clear, GlobalX owns the intellectual property in any customisation of the software done at the Client's request. This customised software shall simply form part of the software non-exclusively licensed to the Client under the User Licence Agreement.

Services

OP provides a range of professional services including but not limited to general consulting and advice, installation, training and on-going support through the Client Fulfilment Program (CFP). The success of a computer system installation is dependent on collaboration and co-operation between the Client and OP to achieve a successful outcome. The Client and OP undertake to always use their best endeavours to maintain the levels of communication necessary to ensure this. OP maintains a call logging system. OP support staff will use commercially sensible efforts to assist Clients with queries. All requests for support must be logged with the OP Support Desk.

All services are performed during normal business hours unless specific commercial arrangements are made to vary this. Overtime rates may apply at the discretion of OP.

All services will be fully paid for in advance prior to any works being carried out by OP.

Paid Customisation

OP is not required or obliged to undertake any paid customisation requests. Should OP seek to undertake a paid customisation request, it will be under the Paid Customisation process as defined by OP. OP reserves the right to include these paid customisations into its standard range of product and services.

Orders and Payment

Orders must be on the OP Order Form. Before a project and/or supply can commence, the Order Form must be signed by the Client and accepted by OP and the deposit paid. The licence to use software will only be granted to the Client on full payment to OP of the total investment amount set out on the Order Form. The Client acknowledges an obligation to pay interest on all overdue amounts from the due date until date of payment at the rate charged by Visa on OP's Corporate Credit Card facility from time to time at that rate 2% above the top rate charged by OP's bank on unsecured overdrafts of $20,000.00 from time to time. OP is entitled to withhold the provision of products and services, restrict or prohibit use of software and obtain access to Client premises to retake possession of software and materials not paid for while payment terms are not met. Charges for professional services, travel time, travel expenses, delivery costs, subsistence allowance, freight and all out of pocket expenses are payable by the Client in advance of the services being undertaken.

OP may at its election accept payment by credit card. OP reserves the right to limit such payments or to ask the Client to carry the cost of the merchant's fee associated with such a payment.

Payments must be made on or before the date given on the Order Form or 7 days from that date of OP invoice (whichever is the earlier). Time is of the essence in this regard.

The Client acknowledges that they are liable for any expenses, costs of disbursements incurred by OP in recovering any outstanding monies, including debt collection agency fees and solicitor's costs on a full indemnity basis.

Open Practice is committed to a sustainable supply chain management process (SSCM) and generally environmentally friendly values which incorporates electronic delivery of all invoicing, contracts, proposals, work books and training materials etc. Paper versions of any of these items will incur an SSCM fee and requesting any paper based services mentioned above you agree to a SSCM fee being applied.

Warranty and Exclusions

OP does not make any representation or warranty with respect to the usefulness or efficiency of any software or systems (including OP software). The Client has made its own enquiries and is satisfied with the usefulness and efficiency of the software and systems. The Client acknowledges that the degree of success with which software performs is dependent on many factors, many of which are outside of OP's control.

OP provides no warranty on hardware, operating systems or other software or components from other third party suppliers. Any warranty on all products from third party suppliers is the warranty of that party. The Client undertakes to do all things necessary to validate third party supplier warranties.

To the fullest extent permitted by law all implied warranties are excluded and the liability of OP to the Client shall be limited, at the election of OP to the resupply of the software or cost of resupply of the software being the Software Licence amount (for 1 year) on the face of the Order Form.

OP shall not be responsible for any loss, consequential or otherwise, and for whatsoever cause, resulting from the use of software.

OP's liability to the Client shall not in any event or from any cause (including negligence) exceed the value of payment received by it for the software being the Software Licence amount (for 1 year) on the face of the Order Form.

This warranty does not cover problems caused by your acts (or failures to act), the acts of others, or issues related to your internal live operating network and or production environment.

Indemnity

The Client agrees to fully indemnify and hold harmless OP and its officers, employees, agents and related bodies corporate against all expenses, losses, damages and costs incurred by or awarded against any of them arising from any claim, suit, demand, action or proceeding (including legal costs on a full indemnity basis) by any person where such loss or liability relates to or arises from the use of the software by the Client, or was caused by any wilful, unlawful or negligent act or omission of the Client, its employees, agents, Customers or sub-contractors. This indemnity will continue notwithstanding termination of this Supply Agreement.

Installation, Implementation and Scheduling

The OP Project Team taking into account the needs of the client and availability of OP resources, schedules professional work. OP will try to meet client preferences but will not be liable for any loss or damage arising from any delays arising for any reason. Project Schedule dates are target dates only. The Client will appoint a suitably qualified individual as project co-ordinator and ensure suitably qualified individuals are available to assist with the implementation of the project. Should the Client engage the assistance of external IT services, this will be at the client's expense. As part of the implementation, OP resources will be given access to all necessary personnel (both internal and external), at the Client's expense, in order to ensure the smooth implementation of the project. OP will channel all communications through the project co-ordinator. The Client undertakes to prepare the site and provide a suitable working environment and equipment to specifications and requirements for OP to be installed and implemented on, so that the installation can proceed in a timely and smooth manner.

The Project Schedule will determine the target implementation date. The implementation date on the Order Form is only a requested date. If a Project Schedule is not signed off on within 90 days of the date of the Acceptance of this Order or implementation postponed at the request of the Client for 30 days or more (unless a later date was set out on the face of the Order Form), then the Supply Agreement may be terminated by OP by notice in writing to the Client.

The implementation processes must be unconditionally signed off by the Customer at each stage, no additional works will be carried out until the sign off request is completed. The Client acknowledges that failure to sign off may result in changes to the scheduling.

Education and Training

Education and Training may be provided at OP Training Centres or on the Client site. Enrolment for a training course at an OP Training Centre requires three (3) working days notice of cancellation. Substitute trainees may be sent. For on-site training, the Client undertakes to prepare the site and provide suitable training facilities and equipment. To optimise the use of training time, the Client also undertakes to ensure timely and undisturbed staff attendance. If Education and Training needs to be re-delivered or extended in time this will be paid for by the Client as an additional cost on a time and materials basis at OP's then current rates (on OP's invoice).

Client Fulfilment Program

The Client Fulfilment Program (CFP) is a special OP subscription service that provides a comprehensive range of economical benefits for specified OP products and services. Benefits for current paid up subscribers during current the CFP term include: Continued License rights under the User License Agreement The entitlement to receive OP software upgrades and service packs; Preferential pricing for OP products, consulting services and training; Access to online resources available on the restricted OP CFP Website at www.openpractice.com.au (as available); Optional participation in the OP User Group movement (as available); The maintenance of a Support Desk call history; Call access to the OP Support Desk for trained operators of licensed OP software installed on suitably configured hardware and software systems. The Support Desk operates from 7.00 AM AEST to 7.00 PM AEST, Monday through Friday (excluding Australian National Public Holidays).

Calls must be logged with the Support Desk via the following methods: through the OP CFP Website; by email, fax or telephone. Subscriptions to CFP are payable in advance of the period to which the subscription relates. CFP entitlements, including Support Desk access, may immediately be suspended at OP's election if there is any outstanding obligation from the Client to OP (whether under the Supply Agreement or on any other basis). Upon the payment of CFP, a registration code noting the date of expiry will be generated and delivered to the Client.

Monthly CFP payments are made in advance on a monthly basis on the 14th day of each month for the next monthly period. The client agrees to make all CFP payments by monthly direct debit for ongoing access to the annual CFP program. Direct Debits may be either via bank or credit card accounts.

Minimum Hardware and Software Requirements

OP reserves the right to change their minimum hardware and software requirements without notification.

OP Searches

OP is not obliged to provide this service as part of the Client's annual CFP. Should OP provide this service, it can be withdrawn at any time. It is a strict requirement that all searching is paid by direct debit by the 14th day of each month for the month prior.

Data Migration Services and Data Take On

OP services may include assistance with the electronic and manual take on or transfer of data from manual records and other software systems. To preserve the Client's investment in this information, it is the Client's responsibility to verify the accuracy of all data prior to and after any such take on or transfer.

Backups

The Client undertakes to institute an adequate backup regime of software and data and to ensure they can be restored for operational use after any system interruption or failure. If OP participates in restoration this shall be at OP's election at an additional cost determined by OP. Fixed Cost Professional Consulting (and cost allocation) The costs on the Order Form are fixed costs for the agreed allowances and must be paid even if the allowances are not used. Work beyond the allowances or redelivery of work because of unavailable Client personnel or systems or change of personnel must be paid for by the Client (on invoice from OP) as an additional cost on a time and materials basis at OP's then current rates. Costs on the Order Form shall not be adjusted based on differences in actual time allocated.

Third party interference

It is essential that all installation, implementation, data migration, data take-on, training and support be managed by OP. Any involvement of extra resource by the Client is subject to the prior approval and direction of OP. Failure of the Client to comply will without limitation mean: Loss of the fixed price nature of this Supply Agreement with all extra costs of OP being payable by the Client on OP invoice on a time and materials basis at OP's then current rates. Even if OP consents to extra client requested resource, any additional work that is required by OP as a result must be paid for by the Client on a time and materials basis at OP's then current rates (on OP's invoice). Particularly, but without limitation, this shall apply to any alterations of system settings.

Price Policy

The Client must pay OP the total investment as specified on the Order Form. The Client acknowledges the right of OP to adjust its future pricing without notice. The subsequent purchase of software licences will result in CFP being aligned with the Client's current CFP arrangement (i.e. based on the same percentage of the software cost and for the same duration). OP reserves the right to change CFP rates on a client by client basis. OP accepts no responsibility for any representations regarding hardware and leasing pricing. All quotations for OP products are valid for 30 days from date of delivery and third party software pricing and terms are subject to change without notice.

Compliance with laws

The Client must satisfy itself that it complies with all laws (including regulations) relating to the conduct of its business and the application of the software and systems in that business including without limitation Trust Accounting, document retention and privacy requirements.

Variation

All OP products and services are provided on these Terms and Conditions. These Terms and Conditions may be altered from time to time at the sole election of OP by notice in writing to the Client. OP may also change the specification of the software at its sole discretion without notice to the Client.

General

The Client shall not transfer, assign, lease or otherwise dispose of its rights or obligations under this Supply Agreement without the prior express consent in writing of OP. OP may assign its rights and obligations under this Supply Agreement by notice in writing to the Client and from the date specified in the notice future obligations of OP shall cease.

A party includes its successors, administrators, executors and permitted assigns.

A person includes a legal entity of any kind.

The laws of Queensland, Australia shall govern this Supply Agreement and the parties agree to submit to the non-exclusive jurisdiction of the courts of that State.

The Supply Agreement constitutes the complete understanding of the parties and no waiver or modification of any clauses or subclauses will be valid unless in writing. These Terms and Conditions may only be altered by express written consent of OP. To be clear, none of the other documents included in the Supply Agreement alters these Terms and Conditions unless that is expressly stated and agreed to in writing by OP.

If any clauses or subclauses of this Supply Agreement are held to be invalid or unenforceable in any way, such invalid or unenforceable part may be severed and the remaining clauses and subclauses of this Supply Agreement shall remain in full force.

No failure to exercise and no delay in exercising any right, power or remedy under this Supply Agreement will operate as a waiver.

OP reserves the right to change and update these Terms & Conditions without notice.

Notices may be given via email to the Client's project co-ordinator email address and to OP to the Support Desk (support@openpractice.com.au).

IP Ownership

All Intellectual Property in Open Practice Solutions software is owned by GlobalX Information Services Pty Ltd ACN 073 436 414. Intellectual property is licensed to its subsidiary companies to allow them to grant licences to end users.