State Medical Assistance Pty Ltd Supply Terms and Conditions

1.     Definitions and Interpretation
1.1   Definitions

In these terms and conditions unless the context or subject matter or circumstances indicate otherwise:

Approval means any permit, licence, consent, certificate or other approval obtained or required in relation to anything required or permitted to be done by the Supplier under these terms and conditions;

Australian Standards means any Australian Standard (as amended or replaced) issued by Standards Australia applying directly or indirectly to the Services or Products;

Business Day means a day on which trading banks are open for business in Sydney, New South Wales, excluding a Saturday, Sunday or public holiday;

Claim means any adjustment to the Pricing and any claim, action, suit, cause of action, cost, expense, demand, liability, whether by way of indemnity, under contract, in equity, under statute, in tort or otherwise and any other liability of any nature;

Supplier means the Supplier named in the Invoice;

Supplier Contact is the person named in the Invoice;

Commencement Date means the date specified on the Invoice;

Confidential Information means and includes all confidential, non-public or proprietary information (including but not limited to, Intellectual Property (IP) Rights, Services and documentation) disclosed or communicated by one Party (the “Discloser”) to the other Party (the “Recipient”) or its employees or contractors (whether verbally, in writing or any other form), learnt or accessed by the Recipient, its employees and contractors from the Discloser or generated by the Recipient, its employees or contractors in the course of using, providing or receiving Services under these terms and conditions;

Confidential Information only includes information that is by its nature confidential, and is:

(a)   identified as confidential; and/or

(b)   that the Recipient knows or should reasonably know is confidential; and

(c)   excludes information that is or becomes generally available in the public domain other than through a breach of any obligation of confidence owed to the Discloser;

Consequential Loss means loss of use, data, production, profit, revenue, business, contract or anticipated saving, damage to goodwill, reputation, loss of custom or contract, financing costs or increase in operating costs or any special, indirect or consequential loss or damage;

Contract Particulars means the following information which is contained in the Invoice:

(a)     the Services or Products;

(b)     Supplier Contact;

(c)     SMA Contact; and

(d)     Contractual Services Sum.

Contractual Services Sum means the amount (in Australian dollars) set out on the Invoice;

Force Majeure means any act, event or cause (other than a lack of funds), which is beyond the reasonable control of the affected party including:

(a)     an act of God, strike, lockout, war (declared or undeclared), blockade, act of public enemy, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint, riot, civil commotion, expropriation, prohibition, intervention or embargo, industrial conditions not limited to SMA, and any other occurrence of the kind listed above, which is not reasonably within the control of the affected party; and

(b)     action or inaction of any government or other competent authority (including any Court of competent jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, decree or other legally enforceable order;

Insolvent Event means any one of the following circumstances where either party:

(a)     is (or states that it is) insolvent under administration or insolvent (each defined under the Corporations Act 2001 (Cth);

(b)     is in liquidation, provisional liquidation, under administration or wound up or has had a controller appointed to its property;

(c)     is subject to any arrangement, assignment, moratorium or composition, protected from creditors under statute or dissolved;

(d)     has an application or order has been made, resolution passed, proposal put forward, or any other action is taken which is preparatory to or could result in any of (a), (b) or (c) above;

(e)     is taken to have failed to comply with a statutory demand; or has not taken steps to set aside the statutory demand;

(f)       is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth); or

(g)     is otherwise unable to pay its debts when they fall due;

Intellectual Property (IP) Rights means inventions, literary and artistic works, symbols, names and images used in commerce by SMA or the Supplier, including but not limited to business processes and procedures, methodologies, corporate culture and human resources management practices, copyrights, patents, trademarks and designs;

Invoice means a tax invoice issued by the Supplier setting out the Contract Particulars;

Legal Requirements means any Australian statute, ordinance, regulation, or by-law, and includes any licenses, permits and consents necessary for the Supplier in connection with the Services or Products;

Notice means a notice to be given under these terms and conditions in accordance with clause 13;

these terms and conditions;

Pricing and/or Price means the Contractual Services Sum;

Products means the products to be supplied by the Supplier as set out in the Invoice;

Purchase Order means a written request for provisions of Services or Products titled ‘purchase order’ issued by the accounts manager of SMA to the Supplier in accordance with these terms and conditions from time to time.

Services means the services provided by the Supplier as described in the Invoice;

SMA Contact is the person set out on the Invoice;

Variation means:

(a)     the inclusion of additional services as Services or Products to be supplied by the Supplier;

(b)     a change in the character or quality of the Services or Products to be supplied; or

(c)     an increase or decrease in the quantity of Services or Products to be supplied; or

(d)     a change in the cost of the Services or Products to be supplied.

1.2   Interpretation

In these terms and conditions, and unless the context requires otherwise:

(a)     headings are for convenience only and do not affect the interpretation of these terms and conditions;

(b)     “includes” means includes without limitation;

(c)     a reference to a gender includes any gender;

(d)     a reference to “$” is to be construed as a reference to Australian currency;

(e)     a reference to a party to these terms and conditions includes that party’s successors and permitted assigns;

(f)       a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it;

(g)     no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.

1.3   Business Day

Except for the provision of the Services, where the day on or by which something must be done is not a Business Day, that thing must be done on or by the next Business Day.

2.      TERM

These terms and conditions take effect (comes into force) on and from the Commencement Date.

3.      GENERAL OBLIGATIONS

3.1   Supply of Services or Products

(a)     The Supplier must supply the Services or Products in accordance with these terms and conditions and any reasonable directions given by SMA.
(b)     SMA will not be bound by any terms or conditions expressed or referred to by the Supplier except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by SMA. For the avoidance of doubt, even where the Supplier attaches or refers to other terms and conditions in any quotation, proposal or other material relating to the supply by the Supplier of the Services, received after these terms and conditions have been entered into (‘additional terms’), such additional terms are expressly excluded from these terms and conditions and any agreement between SMA and the Supplier and will be of no force or effect against SMA unless it expressly agrees otherwise (by notice in writing, signed by a director of SMA).

3.2   Supplier’s quotation

The Supplier must, upon request by SMA, provide a quotation for the Services and/or Products specified by SMA.

Upon receipt of the Supplier’s quotation SMA may, but is not obliged to, accept the quotation by:

(a)     where the total cost of the Services and/or Products to be supplied by the Supplier to SMA detailed in the quotation is less than or equal to $1,000.00, confirming acceptable of the quotation and requesting supply of the Services and/or Products verbally, by email or other electronic communication; or
(b)     where the total cost of the Services and/or Products to be supplied by the Supplier to SMA detailed in the quotation exceeds $1,000.00, SMA will issue a Purchase Order to the Supplier.

3.3   SMA not bound

SMA is not bound to pay any amount for Services and/or Products supplied by the Supplier to SMA unless the quotation for those Services and/or Products has been accepted by SMA in the manner detailed in clause 3.2

3.4   Payment of Price

Subject to the Supplier complying with these terms and conditions, SMA will pay to the Supplier the Contractual Services Sum in accordance with these terms and conditions.

3.5   Legal Requirements, industry practice, and Approvals

In the supply of Services or Products under these terms and conditions, the Supplier must:

(a)     comply with all applicable Legal Requirements;

(b)     conform with all current applicable codes and standards (including all relevant Australian Standards);

(c)     comply with current industry practice in the supply of Services or Products; and

(d)     obtain and keep in full force and effect for the Term all Approvals necessary for the lawful supply of the Services or Products.

4.    VARIATIONS

4.1      If the Supplier reasonable determines or SMA deems there to be a Variation, then the Supplier must submit a quotation for the Variation. SMA may accept the Variation quotation in the manner detailed in clause 3.2.

4.2      SMA will not be bound by any Variation quotation nor be liable for the cost of any Variation unless the Variation has been accepted and a further Purchase Order issued by SMA in accordance with clause 3.2.

5.      WARRANTIES

5.1   Warranty as to Services

(a)     The Supplier warrants that it either owns the IP Rights and/or has all the appropriate licenses, registrations, permits, qualifications and approvals necessary to provide the Services or Products.

(b)     The Supplier represents that the Services will be carried out:

(i)      with due care and skill and a standard of diligence that would reasonably be expected from a prudent, expert and experienced provider of those or similar Services or Products;

(ii)     in accordance with SMA’s directions and to the reasonable satisfaction of SMA;

(iii)   so that they are fit for the purposes for which they are intended (or any purpose which may be reasonably inferred from these terms and conditions);

in compliance with

(iv)    these terms and conditions; and

(v)     all Legal Requirements.

5.2   Supplier Warranties

The Supplier warrants and acknowledges that the Supplier has the power and authority to enter into a binding agreement with SMA.

6.      PRICE AND PAYMENT

6.1   Invoices

The Supplier will invoice SMA for the Services or Products.

6.2   Time for Payment

SMA will pay the Contractual Services Sum to the Supplier within thirty (30) days of the date of receipt of the invoice.

(a)

6.3   Method of payment

(a)     The Supplier must notify the appropriate banking details to SMA as soon as practicable.

(b)     Payment under these terms and conditions will be made by SMA to the Supplier by electronic funds transfer in accordance with the details provided by the Supplier.

7.      GST

7.1   Exclusive of GST

Unless otherwise expressly stated, the Contractual Services Sum, Prices or other sums payable or consideration to be provided under or in accordance with these terms and conditions are exclusive of GST.

7.2   Payment of GST

If a party makes a taxable supply under or in connection with these terms and conditions, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.

7.3   Tax Invoice

The supplier must, as a precondition to the payment of GST, give the other party a tax invoice by the end of the month in which the supply is made.

7.4   Adjustments

If an adjustment event arises in connection with a supply made under these terms and conditions, the supplier must give the other party an adjustment note in accordance with the GST law.

7.5   Reimbursements

If these terms and conditions require one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount on input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.

7.6   Defined terms

In this clause:

(a)     words and expressions which have a defined meaning in the GST law have the same meaning as in the GST law;

(b)     “GST law” has the meaning given to that term in the A New Tax System (Goods and Services Tax Act 1999 or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.

8.      INSURANCE

8.1   Insurance

The Supplier must throughout the Term, obtain and maintain the following Insurances:

(a)     Public liability insurance written on an occurrence basis with a limit of indemnity of not less than $20,000,000 for each and every occurrence;

(b)     Professional indemnity insurance with a sum insured of not less than $20,000,000 per occurrence; and

(c)     Workers compensation insurance as required by law in the State or territory the services are being provided, or any other insurance required by SMA.

9.      LIABILITY AND INDEMNITIES

9.1   Indemnity: SMA

SMA will be liable for, and will indemnify and keep the Supplier (its officers, subcontractors and suppliers, agents and employees) indemnified from and against any losses whatsoever, settlements, claims, actions, suits, proceedings, judgments, awards, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) (collectively “Damages”) arising directly or indirectly from:

(a)     any breach by SMA of any term of these terms and conditions; or

(b)     any negligent act or omission by SMA or its employees or subcontractors in connection with the performance of SMA’s obligations under these terms and conditions

reduced to the extent that such Damage is caused by the negligent act or omission of the Supplier (its officers, subcontractors and suppliers, agents and employees).

9.2   Indemnity: The Supplier

The Supplier will be liable for, and will indemnify and keep SMA (its officers, subcontractors and suppliers, agents and employees) indemnified from and against any losses whatsoever, settlements, claims, actions, suits, proceedings, judgments, awards, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) (collectively “Damages”) arising directly or indirectly from:

(a)     any claims that any component of the Services provided hereunder by the Supplier infringe any copyright, trademark, service mark, trade name, patent right, trade secret, or any other intellectual property or proprietary right;

(b)     any breach by the Supplier of any term of these terms and conditions;

(c)     any negligent act or omission by the Supplier or its employees or subcontractors in connection with the performance of the Supplier’s obligations under these terms and conditions;

(d)     any breach of any warranty or representation of the Supplier hereunder; or

(e)     any penalty imposed for breach of any Legal Requirement in connection with the performance of the Supplier’s obligations under these terms and conditions;

reduced to the extent that such Damage is caused by the negligent act or omission of SMA (its officers, subcontractors and suppliers, agents and employees).

11.2.1  The Supplier will indemnify and keep indemnified SMA against all Claims, losses, actions, damages, costs and expenses whether arising from personal injury or death or damage to property caused to any person including but not by way of limitation employees and other servants or agents of the Supplier to the extent caused directly or indirectly by any negligent act or omission of the Supplier or their sub-contractors or servants in breach of these terms and conditions reduced to the extent that such Claims, losses, actions, damages, costs and expenses are caused by the negligent act or omission of SMA (its officers, subcontractors and suppliers, agents and employees).

The provisions of this clause shall survive termination of these terms and conditions.

9.3   Limitation of Liability

Notwithstanding anything to the contrary herein contained but subject to the provisions of any Legal Requirements, SMA’s liability and the Supplier’s liability in respect of any Claim arising in any way out of the Agreement or its performance or from any failure to perform the Agreement, whether that liability arises under contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Supplier’s public liability insurance policy limits outlined in clause 7.1 and the SMA’s public liability insurance policy limits.

9.4   Consequential Loss

Neither Party will be liable to the other Party for any Consequential Loss arising out of or in connection with these terms and conditions.

9.5   Continuing obligation

Each indemnity in these terms and conditions is a continuing obligation separate and independent from the parties’ other obligations and survives termination of these terms and conditions.

9.6   Enforcing a right of indemnity

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by these terms and conditions.

10.      CONFIDENTIALITY

10.1   No disclosure

Subject to clause 9.2, each Party must not, and must ensure that its employees do not, without the prior written approval of the other party, at any time, including after the termination or expiry of these terms and conditions:

(a)     disclose or give to any person any Confidential Information of the Party;

(b)     use or reproduce, or permit or allow any other person to use or reproduce the Confidential Information of the other Party; or

(c)     information about the terms of payment or performance in respect of any obligation under these terms and conditions at any particular time.

10.2   Permitted Disclosure

Clause 9.1 does not apply to the extent that the Confidential Information is:

(a)     disclosed to a Party’s officers, employees, legal and accounting advisers and auditors;

(b)     disclosed with the prior written consent of the other Party;

(c)     lawfully in the public domain at the time that the Confidential Information was disclosed or given; or

(d)     required to be disclosed or given to comply with any applicable law, the rules of any securities or stock exchange or an order of a court or tribunal and the other Party is given prior notice of the disclosure.

Where a Party discloses any Confidential Information pursuant to this clause 9.2, it:

(a)     must ensure that the party to whom the Confidential Information is provided or disclosed to (“Third Party”) complies with the terms of this clause 9; and

(b)     will be responsible and liable for any breach of the terms of this clause 9 by such Third Party as if the Party committed the breach.

Each Party will promptly notify the other Party if the Party learns, or has reason to believe, that there has been unauthorised access to, disclosure (whether intentional or accidental) or use of, or any security breach relating to or affecting Confidential Information in the possession of the Party, its subcontractors or agents, or that any person who has had access to Confidential Information in the possession of the Party or its subcontractors or agents has violated or intends to violate the terms of these terms and conditions with respect to these confidentiality obligations.

10.3   Return of documents

Within ten (10) Business Days of termination of these terms and conditions, each party must return to the other all documents or records, including all Confidential Information supplied to that party in respect of the supply of the Services or Products or any other aspect of these terms and conditions.

11.   FORCE MAJEURE

11.1  Notice and effect

If an affected party is wholly or partly unable to carry out any obligation under these terms and conditions because of Force Majeure, then provided that the affected party:

(a)     gives the non-affected party prompt Notice of that Force Majeure including reasonably full particulars of the event relied on and so far as known the probable extent to which it will be unable to perform or be delayed in performing that obligation; and

(b)     uses all reasonable diligence to remove or remedy that Force Majeure as quickly as possible,

that obligation is suspended to the extent that it is affected by the continuation of the Force Majeure.

11.2   Non-affected party may terminate

Either party may terminate these terms and conditions immediately by giving Notice to the other party if the suspension of the affected party’s obligation continues under clause 10.1 for more than one (1) month.

12.   TERMINATION

12.1   Termination for breach

Either party (“Non Defaulting Party”) may terminate these terms and conditions by giving Notice to the other party (“Defaulting Party”) if the Defaulting Party commits a breach of these terms and conditions which is:

(i)      capable of rectification but which is not rectified within fourteen (14) days of receipt of a Notice from the Non Defaulting Party or such longer period as the Non Defaulting Party may allow in their absolute discretion; or

(ii)     not capable of rectification; and

termination under this clause 0 will be effective immediately and will not affect any other rights available to the Non Defaulting Party .

12.2   Termination for Insolvent Event

Either party may terminate these terms and conditions immediately by giving Notice to the other party (the “Defaulting Party”) if the Defaulting Party commits an Insolvent Event.

13.   DISPUTE RESOLUTION

13.1   Notice of dispute

If a difference or dispute between the Parties arises in connection with the subject matter of these terms and conditions then either Party shall give the other party a Notice of dispute adequately identifying and providing details of the dispute.

13.2   Continue to perform

Notwithstanding the existence of a dispute the parties shall, if reasonably practicable to do so, continue to perform these terms and conditions.

13.3   Conference

Within five (5) days after receiving a Notice of dispute the parties shall confer at least once to attempt to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.

13.4   Mediation

In the event that the Parties are unable to resolve the dispute or reach agreement on a method to do so within twenty eight (28) days (or such longer period as agreed by the Parties) after the Notice of dispute is served, the dispute shall be and is hereby submitted to mediation in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia (NSW Chapter) Rules. The appointing and administering body shall be The Institute of Arbitrators & Mediators Australia.

13.5   Parties not to commence legal action

Except to enforce this clause or to seek an urgent interim determination, a party must not commence or maintain an action by way of legal proceedings relating to the dispute until it has been properly dealt with (including using all attempts to resolve the dispute) pursuant to clause 12.

13.6   Costs of Dispute Resolution

All costs incurred involved in dispute resolution are to be shared equally between the Parties.

14.   NOTICES

14.1   How notices may be given

A Notice under these terms and conditions:

(a)     must be in writing;

(b)     must be addressed to the Supplier Contact or SMA Contact (as applicable);

(c)     may be signed for the party giving it by the party’s authorised officer, attorney or solicitor; and

(d)     may be:

(i)      delivered personally to the Supplier Contact or the SMA Contact (as applicable), or left at or sent by prepaid post to that person’s address; or

(ii)     faxed to the Supplier Contact or the SMA Contact (as applicable; or

(iii)   emailed to the Supplier Contact or the SMA Contact (as applicable).

14.2   When Notice taken as given

A Notice is taken as given by the sender and received by the intended recipient:

(a)     if posted, three (3) Business Days after posting;

(b)     if faxed, on completion of transmission, but if delivery or receipt is on a day which is not a Business Day or is after 5.00 pm at the Place of Delivery or receipt, it is taken as given at 9.00 am on the next Business Day.

(c)     if emailed, on receipt of an automatic receipt transmission reply by the sender, or upon acknowledgement by the email recipient.

14.3   Change of address or fax number

A party may change the address, fax number or email address of its contact by Notice to the other party.

15.   GENERAL

15.1   Governing law and jurisdiction

(a)     These terms and conditions are governed by the law of the New South Wales, Australia.

(b)     Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from them.

(c)     A party must not object to the jurisdiction of a court merely because the forum is inconvenient.

15.2   Unenforceable provision

If a provision or part of a provision in these terms and conditions is wholly or partly invalid or unenforceable, the provision or part must, to that extent, be treated as deleted from these terms and conditions. This does not affect the validity or enforceability of the remaining provisions.

15.3   Entire Agreement

These terms and conditions supersede all previous agreements in respect of its subject matter and these terms and conditions embody the entire agreement between the Parties.

15.4   Variation

Any variation or amendment of these terms and conditions must be in writing and signed by both Parties or by persons authorised to sign for them.

15.5   Waiver

A party may only waive a right under these terms and conditions by giving Notice.

15.6   Assignment

Neither party may assign the whole or part of its obligations under these terms and conditions to a third party without the prior written consent of the other party, which shall not be unreasonably withheld.