software development terms and conditions

Operative Part

 

1. Definitions

1.1 In this Agreement, unless inconsistent with the context:

(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b) Confidential Information includes information which relates to Orchard ebusiness Software Development Services including account details, passwords, certificates and activation codes, development concepts, source code, object code, specifications, data models and schema, protocols, algorithms, manuals, drawings and data created or used by Orchard ebusiness, Orchard ebusiness’ personnel, Orchard ebusiness’ policies, Orchard ebusiness’ business strategies and the terms of this Agreement.

(c) Clause means a clause of this Agreement.

(d) Critical Fault means a fault whereby none of the Specifications are satisfied.

(e) Confidential Client Data Information means information which relates solely to Customer’s business or patients and does not include any underlying data structures or concepts.

(f) Duration means initially 7 days but upon payment of the amount specified in an invoice issued by Orchard ebusiness the Duration shall be extended for the period specified in that invoice.

(g) Fees means either the agreed fees of Orchard ebusiness or, if none, the published fees of Orchard ebusiness as amended from time to time.

(h) Force Majeure means an act, omission or circumstance over which Orchard ebusiness could not have reasonably exercised control including telecommunication failures.

(i) Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information.

(j) Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.

(k) Material Fault means a fault whereby one or more of the Specifications are not satisfied.

(l) Minor Fault means a fault for which a work around is made available.

(m) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.

(n) Specifications means the documentation issued for the relevant component of the Orchard ebusiness Software Development Services by Orchard ebusiness.

(o) Sub-clause means a sub-clause of this Agreement.

(p) Support Times means normal Queensland business days.

(q) Support Levels means (all references are to Support Times) in the case of a:

(i) Critical Fault – acknowledgement 1 hour, resolution 2 hours;

(ii) Material Fault - acknowledgement 1 hour, resolution 1 day; and

(iii) Minor Fault - acknowledgement 1 hour, resolution 10 days

(r) Support Rebate means 10% of the applicable support (not licence) fee for the relevant calendar month.

(s) Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.

 

2. Interpretation

2.1 In this Agreement, unless inconsistent with the context:

(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b) Words denoting the singular number shall include the plural number and vice versa.

(c) Words denoting any gender shall include all other genders.

(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.

(e) Money references are references to Australian currency.

(f) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.

(g) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(h) Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and each of them severally.

(i) Every right express or implied into this Agreement granted in favour of one more or Parties shall be for the benefit of each of them jointly and severally

(j) A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(k) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.

(l) This Agreement, any invoice issued by Orchard ebusiness and any proposal written by Orchard ebusiness form part of this Agreement and shall be read in that order of precedence.

(m) No remedy, expressly granted to Orchard ebusiness excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Orchard ebusiness.

 

3. Customer’s Right to Use Orchard ebusiness Software Suite

3.1 Subject to the terms of this Agreement Orchard ebusiness grants Customer a revocable non-exclusive right to use Orchard ebusiness Software Development Services for the Duration as follows.

3.2 The scope of the rights granted to the Customer are determined solely by the configuration invoiced by Orchard ebusiness.  

3.3 The available configurations can be found at http://www.monarchbpm.com/versions/tabid/87/Default.aspx

3.4 The available configurations may vary on 30 days notice.

3.5 Orchard ebusiness shall, from time to time, provide certificates and access codes to permit Customer to use Orchard ebusiness Software Suite.

 

4. Customer’s Responsibilities

4.1 Customer shall:

(a) pay the Fees specified in an invoice;

(b) keep its user accounts, passwords, certificates and activation codes details confidential and not disclose same to any other party.  Customer shall be responsible for all use of same whether authorised by Customer or not.  Should any such disclosure occur Customer shall report same to Orchard ebusiness in writing as soon as possible;

(c) provide equipment which Orchard ebusiness considers suitable to use Orchard ebusiness Software Suite;

(d) comply with Orchard ebusiness’ Reasonable Use Policy which may be updated and changed from time to time

(e) comply with Orchard ebusiness’ Publishing Policy which may be updated and changed from time to time 

(f) apply, without delay, all updates issued by Orchard ebusiness from time to time to which it is entitled;

(g) backup its data wherever same is stored;

(h) agree to and comply with the terms and conditions of any third party software or services supplied by Orchard ebusiness or made available with Orchard ebusiness Software Development Services and or not use such third party software and services;

(i) comply with all applicable laws and standards;

(j) conduct all appropriate virus and security checks;

(k) ensure that its customers, employees, sub-contractors and other agents who have authorised access to Orchard ebusiness Software Development Services are made aware of the terms of this Agreement;

(l) supervise and control the use of Orchard ebusiness Software Development Services in accordance with the terms of this Agreement;

(m) immediately advise Orchard ebusiness in writing upon Customer becoming aware of any person using Orchard ebusiness Software Development Services who is not authorised by Orchard ebusiness to do so; and

(n) train its staff in the use of Orchard ebusiness Software Development Services and the internet;

4.2 Customer shall not:

(a) copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute Orchard ebusiness Software Development Services other than as expressly authorised by this Agreement;

(b) engage in password sharing, remote desktop access or port aggregation without the express permission of Orchard ebusiness;

(c) exceed the licensed number of users or machines;

(d) install, upload or execute any computer programs which have not been checked and are not expressly specified by Orchard ebusiness as suitable;

(e) interfere with the network or disrupt any other user, service or equipment;

(f) permit any act which infringes the Intellectual Property Rights which subsist in Orchard ebusiness Software Development Services and which belong to Orchard ebusiness.

(g) provide or otherwise make available Orchard ebusiness Software Development Services in any form to any other person;

(h) use Orchard ebusiness Software Development Services for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail;

(i) use Orchard ebusiness Software Development Services for or in connection with a service bureau operation; or

(j) use Orchard ebusiness Software Development Services to publish any material for which it is not the Intellectual Property Right owner or licensed by the Intellectual Property Right owner or is defamatory.

 

5. Customisations

5.1 Customer may from time to time request customisations including device integrations to the Orchard ebusiness Software Suite.

5.2 Orchard ebusiness may in its sole discretion elect to supply or not supply such customisations.

5.3 Such customisations shall be:

(a) supplied pursuant to the terms and conditions of this Agreement as if such customisations were part of the Orchard ebusiness Software Suite;

(b) supplied in accordance with a timetable and release schedule determined at the sole discretion of Orchard ebusiness;

(c) only available after:

(i) the provision of any information requested from time to time by Orchard ebusiness; and

(ii) the payment of the price determined by Orchard ebusiness to be payable for such customisations.

 

6. Supplier’s rights

6.1 Orchard ebusiness may, whilst being under no obligation to do so and at its sole discretion, without notice or giving any reason or incurring any liability for doing so:

(a) delete, remove or refuse to publish any material which is, in its sole opinion, without limitation,:

(i) dangerous;

(ii) found in an unauthorised area;

(iii) excessive in volume;

(iv) unauthorised;

(v) uncollected for an excessive period;

(vi) unlawful;

(vii) in breach of Orchard ebusiness’ Reasonable Use or Publishing Policy; and

(b) take action if it suspects that malicious, illegal or unacceptable usage of Orchard ebusiness Software Development Services is occurring or has occurred, including destruction or disposal of Customer’s access passwords;

(c) terminate without notice and without further obligation the provision of any customisations (subject only to a refund of any amount which has been paid in advance and for which no work has been undertaken).

 

7. Disclaimer & Acknowledgments

7.1 Customer acknowledges that:

(a) supplied with Orchard ebusiness Software Development Services are certain notes and instructions and a failure to follow those instructions or notes carefully could result in erroneous data being produced or actions being taken or not taken by Orchard ebusiness Software Suite;

(b) Orchard ebusiness Software Development Services does not check for all anomalies and data incorrectly entered may be processed without question;

(c) Orchard ebusiness Software Development Services does not necessarily comply with any standard or legislation;

(d) Orchard ebusiness Software Development Services is licensed on the strict understanding that, subject to the warranties below, Orchard ebusiness is not responsible for the results of any actions taken, either by Customer or a third party relying on data supplied or not supplied by Orchard ebusiness Software Suite;

(e) Orchard ebusiness cannot and does not warrant that Orchard ebusiness Software Development Services shall be available 24 hours a day or that any defect shall be corrected within a specific time frame;

(f) Orchard ebusiness Software Development Services is not necessarily secure, virus free or without defect; and

(g) Orchard ebusiness is not responsible for:

(i) ensuring that Orchard ebusiness Software Development Services is suitable for Customer’s requirements or fit for any purpose;

(ii) any interruption to Orchard ebusiness Software Development Services due to equipment failure, the need for routine maintenance, peak demand etc;

(iii) the supply or maintenance of Customer’s equipment, software or telephone lines;

(iv) monitoring, controlling or ensuring the accuracy, appropriateness or content of any information on the internet and does not do so; and

(v) any software available on the internet or supplied by third parties.

 

8. Support

8.1 Orchard ebusiness may, from time to time, make available various support services and other assistance in relation to Orchard ebusiness Software Suite.

8.2 Should Customer wish to use such services then Customer shall pay the then published rate of Orchard ebusiness in relation to such services.  Such services are supplied pursuant to the terms and conditions set out in this Agreement.

 

9. Support Levels

9.1 Orchard ebusiness shall comply with the Support Levels.

9.2 If Orchard ebusiness fails to comply with 3 or more Support Levels in one calendar month then Customer shall be entitled to a credit of the sum of the Support Rebate.

9.3 The credit is not redeemable for cash.

 

10. Intellectual Property Rights

10.1 Orchard ebusiness retains all the Intellectual Property Rights in Orchard ebusiness Software Suite.  

10.2 Save for the rights expressly granted to Customer pursuant to this Agreement, Customer hereby assigns all its worldwide right, title and interest in any Intellectual Property Rights that it may have now or in the future in whole or in part to the Orchard ebusiness Software Suite.

10.3 Customer shall retain the Intellectual Property Rights in all patient materials supplied by Customer to Orchard ebusiness, however, nothing in this Sub-clause grants Customer the right to download any Confidential Client Data Information until all Fees are paid in full.

 

11. Confidential Information

11.1 To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by the Customer at the time of disclosure, Customer:

(a) shall:

(i) keep such information confidential;

(ii) take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties; and

(iii) inform Orchard ebusiness of any suspected or actual disclosure of Confidential Information; and

(b) shall not, without the express written consent of Orchard ebusiness:

(i) directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;

(ii) use any Confidential Information, other than for the express purpose set out in this Agreement; or

(iii) remove or cause to be removed from Orchard ebusiness’ systems any Confidential Information.

11.2 This Clause shall survive the termination of this Agreement.

 

12. Confidential Client Data Information

12.1 To the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement and is not known by Orchard ebusiness at the time of disclosure, Orchard ebusiness:

(a) shall keep such information confidential;

(b) shall not, without the express written consent of Customer:

(i) directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third party; or

(ii) use Confidential Client Data Information for its own purposes;

12.2 This Clause shall survive the termination of this Agreement.

 

13. Fees

13.1 Customer shall pay Orchard ebusiness the Fees without withholding, deduction or offset of any amounts for any purpose.

13.2 Orchard ebusiness may increase the Fees at any time upon 90 days’ notice.

13.3 An account rendered by e-mail or otherwise by Orchard ebusiness shall be prima facie evidence for a Court of the provision of the items referred to in same to Customer by Orchard ebusiness.

 

14. Tax 

14.1 Unless expressly stated to the contrary and to the extent permitted by law:

(a) the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;

(b) Customer shall immediately pay any applicable Taxes to Orchard ebusiness; and

(c) Customer shall indemnify and keep indemnified Orchard ebusiness from payment of the Taxes and any penalties arising from non-payment of same.

 

15. Interest

15.1 Customer shall pay Orchard ebusiness interest at the Interest Rate on all overdue amounts from the due date until payment is made.

 

16. Suspension of Obligations

16.1 If Customer breaches any provision of this Agreement Orchard ebusiness may, without further notice to Customer, 

(a) suspend all its obligations to Customer under this Agreement;

(b) disable the Orchard ebusiness Software Development Services in whole or part using time out codes, remote access or other technological measures; and or

(c) withdraw any discount which was otherwise applicable to the Fees.

 

17. Force Majeure

17.1 Orchard ebusiness shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.

 

18. Limited Warranty

18.1 Orchard ebusiness shall supply Orchard ebusiness Software Development Services with all due care and skill.

18.2 Orchard ebusiness shall re-supply any component or part of the Orchard ebusiness Software Development Services which is  not supplied in accordance with this Clause provided that Customer notifies Orchard ebusiness of same within a reasonable time.  This remedy shall be Customer’s sole and exclusive remedy for breach of this Agreement or any other cause of action against Orchard ebusiness.

 

19. Limitation of Liability

19.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded.  Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement.  However, the liability of Orchard ebusiness for any breach of such term shall be limited, at the option of Orchard ebusiness, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.

19.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Orchard ebusiness shall not be under any liability (contractual, tortious or otherwise) to Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of Orchard ebusiness.

19.3 Customer warrants that it has not relied on any representation made by Orchard ebusiness or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Orchard ebusiness.

 

20. Indemnity

20.1 To the extent permitted by law, Customer shall release, indemnify and keep indemnified Orchard ebusiness, its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by Orchard ebusiness, Orchard ebusiness’ officers, employees and agents, Customer, Customer’s patients, officers, employees and agents or a third party arising out of:

(a) a breach of this agreement by Customer;

(b) any wilful, unlawful or negligent act or omission of Customer, its officers, employees or agents;

(c) any injury suffered by Customer’s officers, employees or agents; and

(d) the discharge of Customer’s obligations pursuant to this Agreement.

20.2 This indemnity applies regardless of whether or not legal proceedings are instituted.

20.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is authorised by Customer or not.

20.4 It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement.

20.5 This Clause survives termination of this Agreement.

 

21. Waiver

21.1 No right of Orchard ebusiness under this Agreement shall be deemed to be waived except by notice in writing signed by Orchard ebusiness.  Any such waiver shall be limited to its express terms.

21.2 Any failure by Orchard ebusiness to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by Orchard ebusiness shall not be construed as a waiver of Orchard ebusiness’ rights.

 

22. Survival

22.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

 

23. Assignment, Novation and Sub-Contracts

23.1 Customer shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Orchard ebusiness.

23.2 Orchard ebusiness may:

(a) sub-contract for the performance or part performance of this Agreement; and

(b) assign this Agreement to a third party without notice and in such circumstances, Orchard ebusiness’ rights and obligations under this Agreement shall be immediately terminated upon assignment.

 

24. Notices

24.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses supplied by the Parties from time to time.

24.2 Notices shall be deemed given in the case of:

(a) hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b) email, immediately upon acceptance of same from a machine outside the control of the sender;

(c) posting, 3 days after dispatch; and

(d) facsimile, upon completion of transmission.

 

25. Early Termination

25.1 If Customer accepts an offer from Orchard ebusiness which is for a fixed period and before that fixed period has expired terminates this Agreement then Customer shall pay Orchard ebusiness by way of liquidated damages the full amount remaining to be payable for that fixed period.

25.2 The Parties agree that amount is a genuine pre-estimate of the loss or damage which Orchard ebusiness would suffer in such circumstances.

 

26. Termination

26.1 Orchard ebusiness may terminate this Agreement immediately if:

(a) any payment due from Customer to Orchard ebusiness remains unpaid for a period of 14 days;

(b) Customer breaches any provision of this Agreement and such breach is not remedied within 14 days of notice by Orchard ebusiness;

(c) Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

(e) Customer being a natural person, dies; or

(f) Customer ceases or threatens to cease conducting its business in the normal manner.

26.2 In addition to terminating this Agreement, Orchard ebusiness:

(a) may repossess any software in the possession, custody or control of Customer which was supplied by Orchard ebusiness and has not been paid for in full;

(b) may disable the Orchard ebusiness Software Development Services using time out codes, remote access or other technological measures;

(c) may retain any moneys paid;

(d) may charge a reasonable sum for any un-invoiced items;

(e) shall be regarded as discharged from any further obligations under this Agreement; 

(f) shall be under no liability to Customer for damages or compensation or any other payment whatsoever;

(g) may immediately erase all Confidential Client Data Information stored by Orchard ebusiness; and

(h) may pursue any additional or alternative remedies provided by law.

 

27. Entire Agreement

27.1 Unless stated expressly to the contrary in this Agreement:

(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement.  Any prior arrangements, agreements, representations or undertakings are superseded;

(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties.  No Party may represent that there exists such a relationship between the Parties;

(c) no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and

(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party save that Orchard ebusiness may on 30 days notice change any term of this Agreement and in such a case Customer may terminate this Agreement during that notice period without further obligation.

 

28. Governing Law

28.1 This Agreement shall be governed by and construed according to the law of Queensland..

28.2 The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Queensland and the Commonwealth of Australia.  Any proceedings in a Commonwealth Court shall be commenced in Queensland.