GENERAL TERMS & CONDITIONS

 

Application of Terms and Conditions

  1. These T&C apply to all transactions between Us and You.
  2. In the event of inconsistency between these T&C and any other agreement You may have with Us, these T&C shall prevail.
  3. These T&C shall continue to apply to all transactions between You and Us, until such time that all of the Services provided by Us to You are terminated in accordance with these T&C.
  4. These T&C are to be read in conjunction with the Ancillary Agreements.

 Interpretation

For the purposes of these T&C, and the documents referred to in Clause ‎1.4, the following words have the following meanings:

 

Ancillary Agreements

means:

  1. Our Service Level Agreement (as applicable to the Service You acquire from Us);
  2. Open Source License;
  3. Our Privacy Policy;
  4. Our Remote Access Agreement; and
  5. Any other agreements, policies, directions or conditions We issue from time to time.

Charges

means any amounts We require You to pay in respect of the Services of the Software use.

Confidential Information

means these T&C, the Ancillary Agreements, the fact that that Party has a commercial relationship with the other Party, any and all information that is by its designation or nature confidential, including but not limited to, financial, management and marketing information, all research, plans or other Documentation to results, outcomes, conclusions, experimental methods, notes, designs, records, computer programs, inventions, innovations, software, patterns, specifications, drawings, techniques, reports, know-how, Data, processes, developments, formulations, applications, methods of manufacture, and graphics, but does not include information which:

  1. Is or becomes generally available to the public (other than as a result of a breach by the receiving Party of Clause ‎15);
  2. Was, is, or becomes, available to the receiving Party on a non-confidential basis from a person who is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; or
  3. The Parties agree in writing it is not confidential or may be disclosed.

Data

means data input into the Software by You or Your End User.

Documentation

means:

  1. The worksheets completed by You upon implementing and setting up the Software and Your Data;
  2. Our Knowledge Base articles and Procedures for functions within OpenVPMS; and
  3. Any other internal documentation used or provided by Us in respect of your use of the Software.

End User

means You, Your employees, contractors, agents, and any other persons who have access to the Software and Services through Your business.

Event of Default

means:

  1. If You default in the due and punctual payment of any monies due and owing to Us pursuant to these T&C or the Ancillary Agreements;
  2. If default is made by You in the performance or observance of any of the terms of these T&C or the Ancillary Agreements (whether or not that default is capable of remedy); or
  3. An Insolvency Event.

Force Majeure

means acts, events, omissions or accidents beyond Our reasonable control, including, but not limited to, an act of God, an act of war or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, industrial action or labour disturbance (whether involving Our workforce or any other Party), suppliers or sub-contractors, currency restriction, embargo, action or inaction by a government agency, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code introduced other than through the acts or omissions of the Party seeking relief.

Insolvency Event

means in relation to a Party:

  1. If a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertaking of that Party;
  2. If the Party suspends payment of its debts generally;
  3. If the Party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
  4. Without limiting the operation of the events referred above, the Party proposes or enters into some other form of insolvency or administration whether formal or informal; or
  5. If the Party, being an individual, becomes insolvent or bankrupt or commits an act of bankruptcy.

Intellectual Property

means any copyright, patent, trademark or other form of intangible property right of a Party in relation to property of a Party.

Intellectual Property Rights

means any rights a Party may, at law, have in relation to Intellectual Property.

Parties

means both of Us and You.

Party

means a Party to these T&C and the Ancillary Agreements.

Related Body Corporation

has the same meaning as set out in the Corporations Act 2001 (Cth), as amended from time to time.

Renewal Date

means:

  1. In respect of monthly Software subscriptions: the end of each calendar month;
  2. In respect of quarterly Software subscriptions: the end of each financial quarter, being 31 March, 30 June, 30 September and 31 December; and 
  3. In respect of annual Software subscriptions: the one year anniversary of the date on which the subscription commenced.

Services

means any service supplied by Us to You, including the provision/access to Software.

Software

means the software “Open VPMS”, being a veterinary practice management software owned, developed or supported by Us, and any other software incidental to the operation of the Open VPMS software.

Subscription Fee

means the annual, quarterly or monthly fee (as applicable) We charge in respect of Your use of the Software, as varied from time to time.

T & C

means these Terms and Conditions, as amended from time to time.

Term

means the term during which We supply You with a Service.

We, Us, Our

refers to OpenVPMS Limited, ACN 113 542 162.

You, Your, Customer

refers to the Party acquiring the Services and/or Software, including Your staff, personnel, contractors and agents.

 

Software and Service provision

  1. We will, subject to You observing (and continuing to observe) and complying with all of Your obligations under these T&C and the Ancillary Agreements, grant You a non-exclusive to use the Software during the Term.
  2. By using Our Software and Services, You agree to be bound by these T&C, and the Ancillary Agreements.  
  3. We will provide the Software and Services to You on the terms and conditions of these T&C and the Ancillary Agreements.
  4. You will use the Software and Services (and will ensure that Your End Users use the Software and Services) in accordance with these T&C, the Ancillary Agreements and all applicable laws.
  5. Our Software and Services are delivered, by default, remotely, unless specifically requested and arranged in advance by You.  Provision of suitable training venues and equipment for onsite support/training sessions is Your responsibility.
  6. Implementation support services are available only to Your key contacts designated at the time of delivery of the implementation services. These key contacts are required to collate and document any requests or issues by Your staff and notify Our implementer by email or direct contact. Our implementer will action these requests by priority. These Services do not include the provision of additional staff training sessions.
  7. Without limiting Our rights, We may suspend the supply of one or more Services or the Software with notice (which may be written or verbal) to You if:
    1. It is an emergency;
    2. Directed or required under the law; or
    3. You fail to pay any amount due and payable in accordance with these T&C and the Ancillary Agreements.
  8. Without limiting Clause ‎‎3.7,
    1. We may suspend one or more Services or use of the Software by providing 5 days written notice if an Event of Default occurs, and
    2. We may in the Event of Default being remedied, remove any suspension within 5 days.

Any suspension of a Service will not prejudice any equitable or legal right of action or remedy which may have accrued or manifest to either Party prior to or after termination of these T&C and the Ancillary Agreements

Variation of T&C and Ancillary Agreements

  1. We may vary these T&C and the Ancillary Agreements at any time, without notice, and will notify customers via email of these changes within 3 days of such variations being made.  Updated T&C and Ancillary Agreements will be posted on Our website within 3 days of any variations being made by Us.
  2. Any variation of the T&C and the Ancillary Agreements are binding on You from the day such variations are made.

Charges

  1. Charges
    1. The Charges applicable in relation to the Software and Services provided by Us to You are as specified in the SLA, or as notified by us to You from time to time.
    2. We may increase our Charges from time to time, at our discretion and such increases shall become binding on You 7 days after we provide written notice of such changes.
    3. At Your request, We may provide You with Services additional to those set out in the SLA. Such additional Services shall be subject to these T&C and the Ancillary Agreements.
  2. Revised Charges
    1. If, at any time during the Term, there is an increase in the cost of providing the Services to You, We may review and modify the Charges and advise You by notice in writing (the Revised Charges).
    2. The Revised Charges will become the Charges effective from the date that is 7 days after the date of such notice.
    3. If We vary the Charges under this Clause ‎5.2, We may require from You an additional form or amount of security or prepayment, as applicable, to reasonably cover the Revised Charges.
    4. You hereby agree to provide any additional form or amount of security or prepayment required by Us under Clause ‎5.2.3 within 7 days of the Revised Charges becoming effective.
    5. In the event that You fail to provide an additional form or amount of security or prepayment in accordance with Clause ‎5.2.3, this constitutes an Event of Default and We may terminate Your Services in accordance with Clause ‎10 of these T&C and the Ancillary Agreements.
    6. We will not be liable for any loss, damage or inconvenience caused to You as a result of Us exercising the power set out in Clause ‎5.2.5.

 Charges and Fees

  1.  Subscription Fee
    1. In respect of the licence we grant to you to use Our Software, We charge a Subscription Fee for Your use of the Software, as set out in the SLA, based on which Software option you select.  
    2. For each Full Time Equivalent (FTE) veterinarians who work in Your practice (which may operate from one or more locations), you must purchase 1 Software unit.
  2. Additional Charges
    1. We charge fees for Services (for example, support or project work) outside of the standard Services supplied to You under Our SLA.  
    2. Our Charges in respect of Services under Clause ‎6.2.1 is $175.00 per hour, plus expenses such as travel expenses, hardware, or other consumables.
    3. Onsite Services incur additional travel and accommodation charges where required. This will be advised prior to any onsite Services performed.
    4. We reserve the right to raise further Charges for Services outside of any scoped additional Services.
    5. We will, where requested, provide You an estimate of the cost of any additional Services You request.  Such estimates are not binding on Us and are valid for 30 days from date of issue.  Estimates must be approved by You in writing, with an electronic signature, prior to additional Services proceeding.
    6. For OpenVPMS On-Premise – Community Edition, support is only available through Openvpms.org Forums.  Community helping Community.

 Calculation of Software Charges

  1. Basis of Subscription Fee
    1. The Subscription Fee is based on the number of FTE veterinarians who work in Your practice (which may operate from one or more locations).
    2. The calculation of the Subscription Fee is independent of the number of workstations and and/or users.
    3. An FTE is a veterinarian who is on duty for an average of 25 hours or more per week.
    4. Where a practice has any Part Time Vets (PTV) who work less than 25 hours per week, the calculation for conversion of the PTV to FTE shall be as follows:
      1. Add the number of PTV together, and divide this number by 3, with any fractions to be rounded to the nearest whole number.  
      2. I.e.: For a practice with 5 PTV: 
      3. 5 / 3 = 1.666, rounded to 2
      4. Therefore: 5 PTV is equal to 2 FTE
      5. For each FTE (or equivalent per Clause ‎7.1.4) You must purchase 1 Software unit.
  2. Changes to the number of FTE Vets
    1. You may request an increase or decrease the number of FTE Vets who can access and use the Software.  Please email Us at subscriptions@openvpms.com to confirm the changes required and whether these changes are immediate changes or changes to take effect at the end of Your subscription period – i.e. monthly, quarterly or annually.
    2. We will increase or decrease the number of FTE Vets on Your account as soon as practicable and in accordance with these T&C.
    3. No refunds will be paid in respect of any unused portion of any Subscription Fee that has been paid in advance in circumstances where You request to reduce the number of FTE Vets on Your account.
    4. Where an increase of the number of FTE Vets takes place, We will apply this change on Your next billing date for Your Subscription Fee.
  3. Audit for determining FTE Vets
    1. You agree to allow Us to run reports (Audit) on Your Database in order to confirm the number of FTE and PTV in Your practice.
    2. This Audit will be used for determining the number of FTE Vets for subscription purposes, and a copy of the Audit report will be emailed to You on Your subscription anniversary date.  
    3. The results of the Audit will determine the number of Software units required for Your practice and the Subscription Fee.
    4. We reserve the right to conduct more than one Audit per year, at Our discretion and adjust Your Subscription Fee accordingly.
    5. You are required to disclose to Us within 7 days any changes to the number of FTE and PTV in Your practice.

Payment

  1. Subscription Fee
    1. Our Subscription Fee is payable in advance on the Renewal Date of Your subscription.
    2. Subscription Fee invoices will be sent to the email address of Your subscription contact person.
    3. Monthly and quarterly Subscription Fees must be paid by automatic payment by credit card or Paypal.
    4. Automatic payments for the Subscription Fee can be set up by You using a credit card or PayPal.  In this case, We will automatically charge the Subscription Fee when it becomes due for payment.
    5. We will retry 3 times to process any declined automatic charge arrangements.  Should the payment remain declined after these attempts, We may charge reasonable administration fees in respect of obtaining payment from You.
    6. Receipts for payment of Subscription Fees will be emailed to Your subscription contact person once successful payment has been made.
  2. Additional Charges
    1. We will invoice any additional Services on the 14th and 31st of each month, if applicable, and Charges for additional Services are payable within 7 days of issue of an appropriate tax invoice, save for Charges payable pursuant to Clauses ‎8.2.3 and ‎8.2.2.
    2. Implementation and Onsite Training Fees are charged in advance and will be invoiced on acceptance of estimate and payable on receipt of invoice.
    3. Project payment terms are:  50% deposit on acceptance of Our estimate, 25% on completion of construction phase and 25% on project completion.
    4. We may, where payment for additional Services is not made in accordance with Clauses ‎8.2.1 – ‎8.2.3, We may cease providing Services, and suspend your licence and use of the Software until full payment is received from You.
  3. Payment Support
    1. Any queries in relation to Our invoiced Charges must be made within 7 days of receipt of the applicable tax invoice.  Queries are to be made in writing to: accounts@openvpms.com.
    2. We are taken to have received a payment from You on the date of deposit as shown in Our bank account statement.
    3. You will be liable to pay Us all expenses (including legal costs and expenses and the fees of Our debt recovery agents) incurred by Us in relation to recovering payments due under these T&C and the Ancillary Agreements.
    4. You must only initiate a billing dispute in good faith and must pay the tax invoice containing the Charges that are being disputed in full in accordance with these T&C and the Ancillary Agreements.
    5. Nothing in this Clause ‎8 limits Our rights to commence proceedings at any time to recover amounts owed by You to Us or its right to suspend or terminate Services and use of the Software in accordance with its rights under these T&C and the Ancillary Agreements.

 Intellectual Property

  1. We hold Intellectual Property Rights in respect of any Documentation and Confidential Information provided to You and You may not distribute Our Documentation or Confidential Information or Intellectual Property to a third party (other than Your employees and contractors) except where You have been given explicit written permission by Us to do so.

Cancellation and Termination

  1. These T&C and the Ancillary Agreements will, unless otherwise terminated as provided in this Clause ‎10 (other otherwise provided in these T&C), commence on the date You subscribe to use the Software and will continue for 12 months.  Thereafter, these T&C and the Ancillary Agreements will be automatically renewed successively for the same period as the current length of Your subscription, unless:
    1. You notify Us in writing by email to subscriptions@openvpms.com, at least 30 days before the end of the Term or any renewed Term, in which case these T&C, the Ancillary Agreements and your licence of the Software will terminate at the end of the Term or the renewed Term (as applicable); or
    2. Otherwise terminated in accordance with the provisions of the Agreement.
  2. Either Party may terminate the T&C and Ancillary Agreements if the other Party:
    1. Commits an Event of Default; or
    2. Subject to Clause ‎10.6, is in material breach of the T&C or any of the Ancillary Agreements and fails to remedy such breach within 10 days of receiving written notice from the other Party specifying the breach and requiring it to be remedied.
  3. We may terminate these T&C and Ancillary Agreements if:
    1. We are unable to supply, or continue to supply, You with the Software or the Services due to the cancellation, suspension or termination of any agreement with Our suppliers, for whatever reason; or
    2. We are unable to supply, or continue to supply, You with the Software or the Services for whatever reason (for example, due to geographical coverage, capacity or technical capability limitations).
  4. On termination of the T&C and Ancillary Agreements for any reason:
    1. All licenses of Software granted under the T&C and Ancillary Agreements will immediately terminate and You must cease using the Software and the Documentation;
    2. Each Party will return to the other and make no further use of any Intellectual Property or Confidential Information (and all copies of them) belonging to the other Party;
    3. We may destroy or otherwise dispose of any of Your Data in Our possession, unless We receive, no later than 10 days after the effective date of termination, a written request from You for access to the most recent version of Your Data in Our possession. If We receive such notice, We will use reasonable commercial endeavours to allow You to export Your Data in a format specified by Us within 14 days of receipt of such written request; and
    4. The accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
  5. If You terminate the Agreement under Clause ‎10.1.1 or We terminate the Agreement under Clauses ‎10.1.2 or ‎10.2, You will:
    1. Not be entitled to a refund of any Charges pre-paid to Us; and
    2. Be liable to pay the Charges on a pro-rated basis for each day up to and including the date of termination of the Agreement to the extent that You have not paid for the use of the Software on those days.
  6. The service levels for each of the Services and the Software are set out in Our SLA. Failure to achieve the service level targets does not automatically entitle You to a rebate and shall not constitute a breach by Us of these T&C and the Ancillary Agreements for the purposes of this Clause ‎10. 
  7. On termination of these T&C and the Ancillary Agreements, all unpaid sums owing by You will immediately become due and payable to Us, and should any money not paid within 7 days of the date of termination, You will be liable to reimburse Us for all reasonable legal costs and disbursements incurred by Us in the recovery of such amounts.
  8. Without prejudice to any other rights under these T&C and the Ancillary Agreements or at law, if We terminate these T&C and the Ancillary Agreements because You are in breach of Your obligations under these T&C and the Ancillary Agreements, it is a condition precedent that:
    1. Our rights in respect of Your breaches and unfulfilled obligations under these T&C and the Ancillary Agreements at that time continue;
    2. You must pay Us all outstanding Charges at that time together with an amount equal to the Charges which would have been payable if these T&C and the Ancillary Agreements had continued for the full Term.
    3. On termination of these T&C and the Ancillary Agreements, neither Party shall hold themselves out, or permit or suffer themselves to be held out, as having any continuing relationship with the other Party or their Related Bodies Corporate.

Customer Data

If You are providing Us with personal information, then Our Privacy Policy applies.

      1. You acknowledge and agree that You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
      2. Each Party will take appropriate technical and organisational measures against unauthorized or unlawful processing of Your Data or its accidental loss, destruction or damage.
      3. We will, for OpenVPMS Cloud subscriptions only, as part of these measures, use reasonable endeavours to back-up Your Data. You acknowledge that if there is any loss or damage to Your Data, Your sole and exclusive remedy will be for Us to use reasonable commercial endeavours to restore such lost or damaged Data from the latest back-up of Your Data maintained by Us, however, such restoration by Us is not guaranteed.
      4. For an On-Premise or self managed OpenVPMS Database, You are responsible for keeping Your own up-to-date back-up copies of Your Data. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any this party.
      5. OpenVPMS Cloud includes backups of all cloud-based OpenVPMS Data. In addition to OpenVPMS Cloud Data, You may have other important clinical and non-clinical files that need to be backed up and/or retained. With the exception of the aforementioned OpenVPMS Cloud Data, You are responsible for performing backups or otherwise preserving critical files and Data within Your practice IT infrastructure and other Data storage solutions.
      6. You acknowledge and agree that We may use Your Data and/or Your customers’ Data for the purpose of performing Our obligations under the Agreement, ensuring that You are complying with the T&C and Ancillary Agreements, or improving or enhancing the Software.

Your Obligations

  1. You will:
    1. Ensure that You comply with the terms and conditions of these T&C and the Ancillary Agreements;
    2. Allow Us at any time to audit Your use of the Software in order to establish whether such use is in accordance with the Agreement;
    3. Comply with all relevant regulatory requirements that may apply to You in respect of the Software and Services;
    4. Implement and maintain network security at Your or an End User’s site;
    5. Provide Us with all information, assistance and co-operation reasonably requested by Us;
    6. Ensure that all equipment that You or Your End Users connect to the Our Network is appropriate, adequately maintained and meets minimum technical standards determined by the Manufacturer;
    7. Provide Us with the details, including an email address, for the contact person in Your practice who will receive Notices under these T&C and the Ancillary Agreements, and who will receive invoices for Our Charges;
    8. Keep the details of the person specified under Clause ‎12.1.6 up to date at all times and advise Us promptly of any changes to those contact details,
    9. and We may terminate these T&C and the Ancillary Agreements in the event that You fail to observe these obligations.
    10. You (and Your employees, contractors, agents and End Users) will not engage in inappropriate conduct by inappropriately interacting with any of Our personnel (including but not limited to abusing via email or in other correspondence, verbally or physically abusing, swearing or yelling at, or conducting themselves in any lewd or inappropriate action or behaviour) and We may terminate these T&C and the Ancillary Agreements in the event that You breach this Clause.

System Upgrades

  1. You acknowledge that We regularly upgrade and update the Software and that the Software is continually evolving. Some of these changes will occur automatically, while others may require You to schedule or implement the changes. You will, where required, upgrade Your third party software and/or devices in order to make efficient use of the Software. We will provide You with reasonable notice of any such changes.
  2. We are not liable in respect of any faults, conflicts, disruptions, or other issues occuring in or to Your third party software or Your IT systems as a result of any upgrades we make to your software.

Intellectual Property Rights

  1. You acknowledge and agree that We and/or Our licensors own all Intellectual Property Rights in the:
    1. OpenVPMS Software;
    2. OpenVPMS Website;
    3. Documentation; and
    4. OpenVPMS branding, trade names and trademarks (OpenVPMS Branding),
    5. together with all modifications, enhancements and other developments to the OpenVPMS Software, OpenVPMS Website, Documentation and OpenVPMS Branding.
  2. Except as expressly stated in these T&C or the Ancillary Agreements, these T&C or the Ancillary Agreements do not grant You any rights to, or in, the Intellectual Property Rights, or any other rights or licenses, in respect of the OpenVPMS Software, OpenVPMS Website, Documentation or OpenVPMS Branding.
  3. You acknowledge that none of Our Intellectual Property Rights are transferred to You. You further acknowledge that unless specifically authorised by these T&C and the Ancillary Agreements, You cannot, and will not, use or reproduce such Intellectual Property Rights for any purpose outside these T&C and the Ancillary Agreements.
  4. All Intellectual Property Rights in any improvements or changes to any Service devised or made by anyone during the time We are providing the Service to You, belong to Us.
  5. We acknowledge and agree that You own the Intellectual Property Rights in Your Data. You grant Us a non-exclusive right to use Your Data to perform Our obligations under these T&C and the Ancillary Agreements, and otherwise in the manner as expressly set out in these T&C or the Ancillary Agreements.

Confidentiality

  1. Subject to Clause ‎15.3, each Party must keep the other Party’s Confidential Information (including the terms of these T&C and the Ancillary Agreements) confidential and will not allow any written or electronically recorded Confidential Information to be copied other than for the purposes of these T&C and the Ancillary Agreements.
  2. Neither Party will use any Confidential Information it acquires from the other Party for any purpose other than exercising its rights and performing its obligations under these T&C and the Ancillary Agreements.
  3. A Party (the Discloser) may make a disclosure of the other Party’s Confidential Information (including the terms of these T&C and the Ancillary Agreements), if the Discloser reasonably believes it necessary, to:
    1. Its suppliers of professional services (including, without limitation, legal and financial advisers, financiers and insurance carriers) if those persons undertake to keep such disclosed information confidential;
    2. For credit purposes where the persons to whom such information is disclosed undertake to keep the disclosed information confidential;
    3. Any of its employees to whom it is necessary to disclose such information if that employee undertakes to keep the disclosed information confidential; or
    4. Comply with any applicable law or requirement of any governmental agency.
  4. The provisions of this Clause ‎15 survive termination of these T&C and the Ancillary Agreements.
  5. Each Party will keep the other Party’s Confidential Information confidential and will not:
    1. Use any of the other Party’s Confidential Information except for the purpose of exercising or performing its rights and obligations under these T&C or the Ancillary Agreements; or
    2. Disclose any of the other Party’s Confidential Information in whole or in part to any this party, except as expressly permitted by these T&C or the Ancillary Agreements (Permitted Purpose).
  6. A Party may disclose the other Party’s Confidential Information to those of its officers, employees, contractors or professional advisors (Representatives) who need to know that confidential information for the Permitted Purpose, provided that:
    1. It informs those Representatives of the confidential nature of the confidential information before disclosure; and
    2. At all times, it is responsible for the Representatives’ compliance with the confidentiality obligations set out in this Clause ‎15.
  7. A Party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of the disclosure as possible.
  8. Each Party will on demand and, in any event, on termination of the Agreement, deliver to the other Party all Confidential Information and any other document supplied by or obtained from the other Party.
  9. This Clause ‎15 will survive termination of the Agreement.

Warranties and Liability

  1. We do not warrant the suitability of the Software for Your intended purpose.  You should perform Your own research and suitability assessment in respect of use of the Software.
  2. We warrant that:
    1. The Software will function substantially as described in the Documentation;
    2. To the best of Our knowledge and belief, the Software does not infringe the copyright of any this party; and
    3. All Services will be performed by employees or contractors who have been correctly inducted and signed off as capable by Us.
  3. If:
    1. The Software does not function substantially in accordance with the Documentation; or
    2. A claim is made that relates to an alleged or actual infringement by the OpenVPMS Software of the copyright of any this party;
  4. then We will, at Our option, either:
    1. Modify the Software to conform to the Documentation or such that it does not infringe those rights; or
    2. Provide a workaround solution or procure a continuing lawful right for You to use the Software (or component thereof).
  5. If neither of the options in Clauses ‎16.3.3 and ‎16.3.4 are commercially feasible, either Party may terminate these T&C and the Ancillary Agreements by giving written notice to the other Party, in which case We will refund to You any pre-paid Subscription Fees for the current Term, on a prorated basis.
  6. We will not be liable for a breach of the warranty in Clause ‎16.1 to the extent of any non-conformance which is caused by use of the Software contrary to the Documentation and any other of Our instructions, or modification or alteration of the Software by any Party other than Us or Our duly authorised contractors or agents.
  7. We do not warrant:
    1. That Your use of the Software will be uninterrupted or error-free or that the Software is free of viruses;
    2. That the Software, Documentation and/or the information obtained by You through the Software will always be available, either in its current form or at all;
    3. That We will support, maintain or continue to offer the Software;
    4. That the Software, Documentation and/or the information obtained by You through the Software will meet Your requirements;
    5. The accuracy, correctness, reliability and completeness of any information, analysis, calculation, or report provided through the use of the Software (together referred to as Results). You acknowledge the Results are for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account at the time the Results were created. To the maximum extent permitted by law, We will not be liable for any form of loss or damage, arising out of or in connection with Your reliance on and use of the Results. You agree that You will not rely solely on the Results and will carry out Your own analysis (other than by using the Software) to verify the accuracy, correctness, reliability and completeness of the Results.
  8. You acknowledge that:
    1. We may rely on the provision of services by this parties (including Data centre, electricity, telecommunications and outsourcing providers) in order to provide the Software (Third Party Providers) and that the Software may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
    2. We will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by third party providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
  9. Except as expressly set out in these T&C and the Ancillary Agreements, the Software and the Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Software and Documentation are expressly excluded.
  10. You indemnify Us and Our Related Bodies Corporate, and will keep Us and Our Related Bodies Corporate fully indemnified, from and against any losses, damages, costs and expenses (including legal costs assessed on a solicitor client basis) which We and Our Related Bodies Corporate may suffer or incur arising out of or in connection with an action or claim brought by You or a this party against Us or Our Related Bodies Corporate which relates to or arises out of Your (or any of Your End Users’) use of the Software or the Services including, without limitation, as a result of:
    1. The transmission of any illegal, fraudulent or offensive material by You (or any of Your End Users);
    2. Any breach of these T&C and the Ancillary Agreements by You; or
    3. Any wilful, unlawful or negligent act or omission by You (or by any of Your End Users).
  11. We shall not be liable for consequential loss or damage which may arise in respect of the Software or Services or for loss of loss of Data, loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort, including where Our negligence is involved or We are vicariously liable, unless such liability cannot be excluded under the Australian Consumer Law. You hereby agree to release and indemnify Us to that extent.
  12. We do not warrant that the Software and the Services will be free of interruptions, delays, faults or errors. We will not be responsible for any loss or damage to You or Your business that may result from any interruptions, delays, faults or errors in the supply of the Software or the Services.
  13. All terms, conditions and warranties that may be implied into these T&C and the Ancillary Agreements, statutory and otherwise, relating to the provision of the Services and Software by Us are excluded to the fullest extent permitted by law.
  14. Our liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:
    1. Limited (if permitted by law), at Our option, to the repair or re-supply of Services or the payment of the cost of having the Services re-supplied; and
    2. Reduced to the extent that such liability is caused by Your negligent acts or omissions or a breach by You of the terms of these T&C and the Ancillary Agreements.
  15. Without limiting Clause ‎16.13, the aggregate liability of Us and Our Related Bodies Corporate for all direct, indirect and consequential losses, damages, costs, expenses, actions and claims arising out of, or otherwise in connection with, these T&C and the Ancillary Agreements, whether based on an action or claim in contract, equity, negligence, intended conduct, tort or otherwise, is limited to the total Charges paid by You for the affected Software or Service in the 6 months preceding the relevant cause of action accruing or, if there are more than one, the last cause of action accruing (Liability Limit) and You irrevocably waive any rights, claims or demands in respect of amounts exceeding the Liability Limit.
  16. We and Our Related Bodies Corporate have no liability to You, any of Your End Users or to any other person, for:
    1. The acts or omissions of any this party, including the suppliers which have been engaged by Us for the purpose of supplying or maintaining a Service or Software supplied to You under these T&C and the Ancillary Agreements;
    2. Faults or defects in Services which are caused by Your own conduct or misuse or the conduct or misuse of Your End Users;
    3. Any loss of revenue or profits, loss of Data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or Software or these T&C and the Ancillary Agreements;
    4. Faults or defects in the Services or Software that arise due to equipment owned or leased by You or an End User or otherwise in Your control or Your End Users’ control; or
    5. Faults or defects in the Services or Software that arise due to failure by You or any party (other than a contractor or agent engaged by Us) to appropriately maintain any equipment necessary to the supply of the Services or Software.
  17. We will not be liable to You, Your Authorised Users, and Your Related Bodies Corporate for loss of profits, loss of revenue, loss of Data, or any indirect, consequential or special loss or damage suffered or incurred by You, Your Authorised Users, and/or Your Related Bodies Corporate arising out of or in connection with these T&C and the Ancillary Agreements or Your use of the Software and Services.

 GST

  1. Any consideration to be paid or provided for a supply made under or in connection with these T&C and the Ancillary Agreements, unless specifically described in the T&C and the Ancillary Agreements as “GST Exclusive”, does not include an amount on account of GST (GST Exclusive Consideration).
  2. If any supply made or to be made by a Party (Supplier) under or in connection with these T&C and the Ancillary Agreements is a taxable supply the Supplier may, in addition to the GST Exclusive Consideration, recover from the recipient of that supply (Recipient) an amount on account of GST to be calculated by multiplying the GST exclusive consideration for the supply by the GST rate prevailing at the time that the supply is made.
  3. Any additional amount on account of GST recoverable from the Recipient under Clause ‎17.2, is payable on provision by the Supplier of a tax invoice.
  4. In this Clause ‎17, words or expressions that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them by that Act.

Australian Consumer Law

  1. Notwithstanding anything contained in these T&C and the Ancillary Agreements, or any other document or agreement between Us and You, We acknowledge that the agreement and relationship between Us and You is subject to the Competition and Consumer Act 2010 (Cth).
  2. The provisions of these T&C and the Ancillary Agreements, where in conflict with the Competition and Consumer Act 2010 (Cth) shall be read down to the extent required by operation of the provisions of Competition and Consumer Act 2010 (Cth).
  3. The provisions of the Competition and Consumer Act 2010 (Cth), including any statutory obligations applicable to Us shall only be enforceable by You in relation to consumer goods.
  4. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law and We do not purport to exclude or attempt to exclude such guarantees.
  5. Our services shall be rendered with all adequate due care and skill, as required by the Competition and Consumer Act 2010 (Cth) and shall be fit for the purposes disclosed by You to Us and delivered within a reasonable time.
  6. Our statutory obligations do not extend to the following situations:
    1. Where goods become of an unacceptable quality due to Your actions or failure to take actions; or
    2. Where You have failed to disclose the purpose for which the goods are to be used, or have misrepresented the purpose for which the goods are to be used. 

Force Majeure

  1. The non-performance or delay in performance by Us of any obligation under these T&C and the Ancillary Agreements is excused during the time and to the extent that such performance is prevented by Force Majeure event, provided that We use Our best endeavours to perform as soon as possible Our obligations under these T&C and the Ancillary Agreements.
  2. If a Force Majeure event continues for more than 28 days, either Party may terminate these T&C and the Ancillary Agreements immediately by notice in writing to the other Party.

Notice

  1. All notices to be given under this Agreement must be in writing and must be delivered to the Party to whom the notice is given by hand or prepaid registered post or to such other address as may be advised by notice in writing to the other Party from time to time.
    1. All notices are deemed to have been duly made or given:
    2. If by delivery in person, when delivered to the addressee;
    3. If by registered post, 5 business days from and including the date of postage; and
    4. If by e-mail, a communication sent by email shall be deemed to be received when the sender receives a return e-mail confirming receipt of the e-mail by the addressee,
    5. but if delivery or receipt is on a day which is not a business day or is after 5.00pm it is to be regarded as having been received at 9.00am on the following business day.

General

  1. In the event of a conflict or inconsistency between the terms of these T&C and the Ancillary Agreements, the follow order of priority shall apply:
    1. These T&C;
    2. Our Service Level Agreement (as applicable to the Service You acquire from Us);
    3. Our Open Source License;
    4. Our Remote Access Agreement;
    5. Our Privacy Policy; and
    6. Any other agreements, policies, directions or conditions We issue from time to time.
  2. You will not assign, transfer, novate or otherwise deal with these T&C or the Ancillary Agreements or any of Your rights or obligations under these T&C or the Ancillary Agreements, whether in whole or in part, without Our prior written consent.
  3. We may assign, transfer, novate or otherwise deal with these T&C or the Ancillary Agreements or any of Our rights or obligations under these T&C or the Ancillary Agreements, whether in whole or in part, without Your prior written consent.
  4. You acknowledge and agree that any Related Bodies Corporate of Us may perform any of Our obligations, or grant any of the rights licensed by Us to You, under these T&C or the Ancillary Agreements on Our behalf.
  5. These T&C or the Ancillary Agreements together constitutes the entire agreement of the Parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
  6. These T&C or the Ancillary Agreements will not be deemed to create a partnership, joint venture or agency relationship of any kind between the Parties.
  7. A provision or a right under the Agreement may not be waived except in writing signed by the Party granting the waiver.
  8. If any provision of these T&C or the Ancillary Agreements is held to be invalid or unenforceable the remaining provisions of these T&C or the Ancillary Agreements will not be affected and will remain in full force and effect.
  9. A Party may exercise a right, power or remedy under these T&C or the Ancillary Agreements at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party under these T&C or the Ancillary Agreements does not prevent a further exercise of that or of any other right, power or remedy.
  10. This T&C and the Ancillary Agreements shall be subject to the law of the State of Victoria.
  11. All obligations of the Parties which expressly preserve or by their nature survive the expiration or termination of these T&C and the Ancillary Agreements shall continue in full force and effect notwithstanding such expiration or termination.

Phone Support

For any urgent support queries please contact us on 03 8737 9309. For any non urgent matters please email support@openvpms.com or to lodge a support ticket Click Here