1.1 Customer accepts the Standard Terms of this Agreement by signing the Quote.
1.2 Customer will be deemed to have accepted the Standard Terms of this Agreement by placing an order with SIMPLE or by obtaining or using the Software, Support or the Services.
2.1 SIMPLE grants the Customer a royalty free, non-exclusive, non-transferable Licence to use the Software in accordance with the provisions contained in this Agreement.
2.2 Customer agrees to use the Software in accordance with the provisions contained in this Agreement and is prohibited from using the Licence for any other purpose.
2.3 Customer is responsible for the use and supervision of the Software and will ensure that the Software is protected at all times from misuse, damage, destruction or from any unauthorised use. Customer will notify SIMPLE immediately on becoming aware of any unauthorised use or reproduction of the whole, or any part of the Software.
2.4 Customer is responsible for managing Customer’s staff access, user names and passwords for the Software.
2.5 The Licence will end when this Agreement is Terminated.
3.1 SIMPLE will provide updates, new releases and maintenance in accordance with these Standard Terms.
3.2 Customer agrees to allow the SIMPLE Support team access to Customer’s System using remote access software.
3.3 The Software Support Fee includes Software maintenance 365 days per year. SIMPLE provide a telephone support service during the hours of 8:30am and 5:00pm (AEST) Monday to Friday. Software Support for emergencies outside normal working hours is available via a Pager Support service from 5:00pm – 8:30pm weekdays and 9:00am – 5:00pm on weekends and public holidays.
3.4 SIMPLE may in its discretion, provide updates (including drug updates) or new releases of the Software. Customer must accept and perform all Software updates as they become available.
3.5 Where an update or new release is provided pursuant to clause 3.4, SIMPLE will install any update or new release at no additional charge to the Customer and this Agreement will continue to apply in all respects to the update or new release.
4.1 SIMPLE recommends complete replacement of Customer’s Existing Equipment to ensure compatibility with the Software. If Customer decides to use Existing Equipment, it is done so subject to compatibility with SIMPLE’s Software and references to Existing Equipment in the Quote in no way implies that Customer’s Existing Equipment is compatible and can be used. Any additional time required to install Software on Customer’s Existing Equipment, may be charged to Customer.
4.2 If Customer is using their Existing Equipment it is the Customer’s responsibility to ensure all Existing Equipment is pre-installed with a suitable MS Windows network and all Original Driver Disks are in Customer’s possession, as these may be required at the time of installation.
4.3 Where SIMPLE supplies Software only, such supply is conditional on Customer’s Existing Equipment meeting the Minimum Technical Specifications.
4.4 To interface Pennylane POS with any dispense system other than Aquarius Dispense, the other dispensing system must be running on Existing Equipment & operating systems approved in writing by SIMPLE.
4.5 To interface Aquarius Dispense with any POS system other than Pennylane POS, the other POS system must be running on Existing Equipment & operating systems approved in writing by SIMPLE.
4.6 If SIMPLE supplies POS integrated eftpos, such supply does not include the pinpads and associated hardware that are usually provided as part of the Customer’s eftpos contract with its bank.
4.7 Customer agrees that SIMPLE is not responsible for the maintenance, repair and warranties of any SIMPLE Hardware. It is Customer’s responsibility to register any warranties with the hardware manufacturer and to contact the manufacturer in the event of hardware failure, repair or maintenance.
4.8 SIMPLE can provide hardware support in certain circumstances in accordance with Customer’s Hardware Support Agreement. For details on hardware support options contact SIMPLE Support.
5.1 Customer must complete a pre-installation form available from SIMPLE prior to any installation being scheduled by SIMPLE. Failure to comply may result in Customer’s installation being postponed or cancelled.
5.2 SIMPLE will pre-install and configure the Software on the Customer’s System if Customer purchases SIMPLE Hardware. SIMPLE will equip Customer or Customer’s ITSP to install Software on Customer’s Existing Equipment if Customer does not purchase SIMPLE Hardware.
5.3 Software that is pre-installed on SIMPLE Hardware will be delivered to Customer’s Business. Upon delivery, some phone assistance will be available by SIMPLE Support to assist Customer with the remainder of the installation. In these circumstances the Customer is advised to organise an ITSP for the purpose of completing the onsite installation at Customer’s Business.
5.4 If Customer’s installation is to be performed within the city of SIMPLE’s ordinary place of business, SIMPLE will not charge Customer any travel time or additional expenses for performance of the installation.
5.5 Where SIMPLE is required to carry out installation for the Customer outside of the city of SIMPLE’s ordinary place of business, the Customer may be charged an Installation Fee at SIMPLE’s standard professional rates as detailed in the Quote.
5.6 Customer is responsible for the provision of all network data cabling, internet accounts and connections.
6.1 SIMPLE may provide either Onsite or Offsite Software Training as indicated on the Customer’s Quote, however SIMPLE’s availability to perform Software Training on the date of installation is dependent on SIMPLE staffing requirements and is not guaranteed.
6.2 Customer must pay for any Onsite or Offsite Software Training prior to the date of the Software Training.
6.3 Delivery for any SIMPLE Hardware and equipment purchased through SIMPLE will be charged in addition to the Quote.
6.4 SIMPLE will perform a data extraction process in accordance with Customer’s Quote. It is the Customer’s responsibility to ensure Customer maintains adequate insurance cover in respect of any loss or damage to Customer’s data.
6.5 Any accommodation, travel or incidental expenses incurred during installation, and not specifically identified in the Quote will be charged in addition to the Quote.
7.1 The Initial Term of this Agreement shall commence on the date on which the Quote is signed by the Customer and is indicated by the date on the Quote.
7.2 The Initial Term shall continue for the period specified on the Quote and until Terminated by either Party.
7.3 Upon expiration of the Initial Term, this Agreement will Automatically Renew for a Further Term, ongoing until the Agreement is Terminated as provided in these Standard Terms.
8. PAYMENT TERMS
8.1 The Quote provided by SIMPLE includes all labour to install SIMPLE Hardware and/or Software. It does not include installing other software programs Customer may use or any other work outside the scope of the Quote. Additional work can usually be performed if requested in advance and will be charged as a separate job at SIMPLE’s standard professional rates.
8.2 Deposit: The Deposit amount is indicated on Customer’s Quote and is due and payable when Customer signs the Quote. This Deposit is non-refundable. Please note SIMPLE will not order any SIMPLE Hardware or book in an installation for Customer without full payment of the Deposit.
8.3 Balance: The Balance of the Quote is payable prior to the Customer’s Installation and includes payment of Software Licence Fees and SIMPLE Hardware Fees.
8.4 Software Support Fees: Can be paid by Customer either quarterly or monthly in advance. All quarterly in advance customers will be invoiced by SIMPLE quarterly in advance in the months of January, April, July and October each year. Software Support Fees commence upon installation of Software, are pro-rated until the start of the next quarter and are due and payable by Customer within fourteen (14) days of presentation of a valid tax invoice.
8.5 PBS Online Levy: Payment is due quarterly in advance. Customer will be invoiced by SIMPLE quarterly in advance in the months of January, April, July and October each year. The PBS Online Levy fee commences upon installation of Software and is due and payable by Customer within fourteen (14) days of presentation of a valid tax invoice.
8.6 Use of the Software is directly linked to the payment of the ongoing Software Support and PBS Online Levy fees. SIMPLE reserves the right to withhold Support, Software upgrades and drug updates and/or withdraw the Customer’s access to Software if the Customer’s ongoing Support Fees, PBS Online Levy fees or invoices remain outstanding for more than 30 calendar days after the due date. Customer agrees to release, indemnify and hold SIMPLE harmless for any loss arising from any such action.
8.7 SIMPLE Hardware Fees: All SIMPLE Hardware and products remain the property of SIMPLE until full payment is received and cleared.
8.8 SMS Connect Fees: Payment is due monthly in arrears and is based on actual volumes of SMS’s sent by Customer per month. SMS Connect Fees commence on installation of Software and are calculated per SMS based on the rate indicated on the Customer’s Quote. SMS Connect Fees are due and payable by Customer within fourteen (14) days of presentation of a valid tax invoice.
8.9 SMS Reply Fees: Payment is due quarterly in advance. SMS Reply Fees commence on installation of Software and are charged at the rate indicated on the Customer’s Quote. SMS Reply Fees are due and payable by Customer within fourteen (14) days of presentation of a valid tax invoice.
8.10 Hardware Support Fees: Can be paid by Customer either quarterly or monthly in advance. All quarterly in advance customers will be invoiced by SIMPLE quarterly in advance in the months of January, April, July and October each year. Hardware Support Fees commence upon installation of Hardware, are pro-rated until the start of the next quarter and are due and payable by Customer within fourteen (14) days of presentation of a valid tax invoice.
8.11 All Fee payments are to be made by credit card unless agreed otherwise. American Express and Diners Club credit cards incur a surcharge that will be on-charged to Customer.
8.12 The Customer acknowledges that any wholesaler may charge the Customer to use PharmX gateway.
9.1 In this clause:
a) GST means GST within the meaning of the GST Act; and
b) Expressions used have the meaning given to them in the GST Act.
9.2 Unless otherwise expressly stated in writing by SIMPLE, all amounts or sums payable under these Standard Terms or the Customer’s Quote do not include GST.
9.3 If GST is to be imposed on any supply made under these Standard Terms or the Customer’s Quote, the Customer must in addition to the amount payable and at the same time, pay SIMPLE the GST payable.
10.1 The Parties shall hold Confidential Information received from the other in confidence and shall use such information only for the purposes of and in accordance with this Agreement.
10.2 Each Party agrees not to disclose Confidential Information received by the other Party to any third party without the prior written approval from the original disclosing Party.
10.3 The obligation to protect the confidentiality of Confidential Information shall be effective for an indefinite period.
10.4 Nothing in this Agreement shall prohibit or limit either Party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies):
a) Previously known to it without an obligation of confidence;
b) Acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; or
c) Which is or becomes publicly available through no breach of this Agreement.
11. OWNERSHIP AND INTELLECTUAL PROPERTY
11.1 Customer acknowledges that all Intellectual Property rights, interest and title over and in respect of the Software, Services and Support, and any trademarks, trading names and any other Intellectual Property in connection with the Software, Services and Support, belong to SIMPLE, and the Customer will not acquire any rights or ownership in the Intellectual Property. Any trademarks must not be used in any way without prior written permission from SIMPLE.
11.2 The Customer must not copy, reverse engineer, modify, alter, adapt, reproduce, distribute or publish the Software except to the extent otherwise authorised by this Agreement.
12.1 To the extent permitted by law, no express or implied warranty, term, condition or undertaking is given or assumed by SIMPLE, including any implied warranty of merchantability or fitness for a particular purpose.
12.2 Customer represents and warrants to SIMPLE that any employees, agents and/or contractors who use the Software are aware of and will comply with this Agreement.
12.3 Customer represents and warrants to SIMPLE that Customer will comply with all applicable laws and professional obligations.
12.4 SIMPLE does not warrant that the Software will function in any environment and makes no warranties with respect to its performance of the Support services, or the performance of the Software.
13.1 Termination for Cause: Each Party may terminate this Agreement in the event the other Party fails to perform its obligations hereunder, fails to assure timely performance, or otherwise fails to perform its material obligations; provided the Terminating Party provides the defaulting Party with at least thirty (30) days’ Notice.
13.2 Either Party may Terminate this Agreement, upon Notice and without liability, in the event the other Party:
a) Files a petition in bankruptcy;
b) Has filed against it an involuntary petition in bankruptcy not dismissed within thirty (30) days;
c) Consents to the appointment of a receiver, custodian, trustee or liquidator; or
d) Dissolves, liquidates or makes a general assignment for the benefit of creditors.
13.3 Termination for Convenience: Either Party may Terminate this Agreement at any time by providing ninety (90) days’ Notice to the other Party.
13.4 Consequences of Termination: the following may occur upon Termination:
a) If Customer Terminates this Agreement for any reason, Customer must fill in the Software Cancellation Form;
b) Customer will be liable to pay the applicable Exit Fee if Customer has terminated for convenience in accordance with clause 13.3 before the expiration of the Customer’s Initial Term;
c) Customer shall pay SIMPLE for all Support services rendered and expenses incurred by SIMPLE prior to the date of Termination, including SIMPLE’s out-of-pocket Decommission Fee or other direct costs resulting from Termination;
d) Customer will allow SIMPLE to access Customer’s System to revoke access to and delete the Software and will provide direction to the Customer on disengaging with SIMPLE; and
e) Customer agrees to cease using the Software and return all material that is the property of SIMPLE.
14. LIMITATION OF LIABILITY AND DISCLAIMER
14.1 In no event shall SIMPLE be liable for consequential, incidental, indirect, special or punitive loss, damage or expenses, including any data loss or corruption and any conflicts with existing software or Systems of Customer.
14.2 SIMPLE’s liability for Software supplied and installed by it is limited to making good any defects by repairing such defects or replacing the Software, within a period not exceeding twelve (12) calendar months after the Software has been originally installed, so long as:
a) any defects have arisen solely through the fault of SIMPLE;
b) the Software has not been modified or interfered with by the Customer; and
c) the Software has been installed and runs on Systems approved by SIMPLE.
14.3 SIMPLE’s liability for SIMPLE Hardware is limited to any manufacturer’s warranty or guarantee by the manufacturer of those goods and SIMPLE agrees to assign the benefit of such warranty or guarantee to the Customer if and as required.
14.4 SIMPLE’s total aggregate liability to the Customer under this Agreement for all direct loss, damage, liability or expenses of any kind, is limited to repairing, replacing or resupplying the Software, Service, Support or product or the return to Customer of all Software Support Fees paid by Customer to SIMPLE during the preceding six (6) months or where the period is less than six (6) months, during that period.
14.5 Notwithstanding anything contained in this Agreement, in no event shall SIMPLE be liable for any claims, damages or loss which may arise from misuse of the Software by Customer or modification, combination, operation or use of the Software with Customer Systems.
15.1 If any one of the provisions contained in this Agreement should be found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provisions will be deleted from this Agreement or modified to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement will be unaffected.
16. DISPUTE RESOLUTION
16.1 In the event of a dispute, both Parties must use commercially reasonable endeavours and act in good faith first, to resolve any dispute, controversy or claim arising out of or in connection with this Agreement, including but not limited to any dispute regarding the enforceability of any provision of this Agreement.
16.2 The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between senior executives or higher levels of management of the Parties, who have authority to settle the dispute.
16.3 In the event the Parties fail to resolve the matter within thirty (30) days after the dispute has been escalated to higher levels of management, the dispute must then be referred to mediation with the Australian Disputes Centre (ADC).
16.4 The Parties agree to adhere to the procedures set out in this clause 16 before enforcing any other rights permitted by law in the resolution of any disputes under this Agreement.
17. ASSIGNMENT/CHANGE OF OWNERSHIP
17.1 Customer may not assign or transfer its rights or obligations under this Agreement without the prior written consent of SIMPLE.
17.2 If Customer’s pharmacy changes ownership, Customer must inform SIMPLE in writing, within 7 days of the transfer.
17.3 If Customer fails to notify SIMPLE in accordance with clause 17.2, Customer will remain liable for any due and ongoing fees and charges until such notice is received and accepted by SIMPLE.
17.4 SIMPLE may assign or novate this Agreement in whole or in part or sublicense its rights and obligations under this Agreement at any time with thirty (30) days’ Notice to Customer.
18.1 SIMPLE may amend this Agreement at any time with thirty (30) days’ Notice to the Customer, by publishing the amendments on the SIMPLE website and/or providing Notice to the Customer.
18.2 Customer will be deemed to have accepted any amendments to this Agreement by obtaining or using the Software, Support or the Services, after the expiry of the thirty (30) day Notice period.
19.1 Clauses 10, 11, 14 of the Standard Terms and this Survival clause, survive Termination of this Agreement.
20. GOVERNING LAW
20.1 This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of New South Wales, Australia.
21. ENTIRE AGREEMENT
21.1 This Agreement and any exhibits or attachments hereto embody the entire agreement between the parties and supersede all previous understandings, commitments or agreements whether oral or written.
22. DEFINITIONS & INTERPRETATION
ADC means the Australian Disputes Centre.
Agreement means these Standard Terms and the Customer’s Quote.
Automatically Renew means the renewal of the Agreement after the expiration of the Initial Term. This Agreement renews automatically after the expiration of the Initial Term.
Balance means the balance payable on Customer’s Quote, due prior to the date of installation.
Business means the Customer’s pharmacy business as carried out at the address on the Quote.
Confidential Information means any information identified, orally or in writing, by the disclosing Party as confidential or which is otherwise confidential by its nature.
Customer means the applicant as described on the Quote, a Party to this Agreement.
Decommission Fee means the variable Fee charged by SIMPLE to Customer to disengage the Software from Customer’s System. The Decommission Fee will be quoted at the time of disengagement in accordance with SIMPLE’s standard professional rates.
Deposit means the deposit value provided on Customer’s Quote and must be paid on the signing of the Quote.
Existing Equipment means Customer’s own hardware and does not include SIMPLE Hardware.
Exit Fee means the Fee payable by Customer if Customer terminates the Agreement before the end of Customer’s Initial Term. For details of the applicable Exit Fee refer to Customer’s Quote.
Fees means the aggregate cost of the applicable Software Support Fees, Software Licence Fees, PBS Online Levy, any applicable Onsite or Offsite Software Training Fees, Installation Fees, Hardware Support Fees, SIMPLE Hardware Fees, SMS Connect Fees and SMS Reply Fees, Decommission Fees or Exit Fees, as well as any professional service fees to be paid by Customer to SIMPLE in relation to this Agreement.
Further Term means the ongoing Term after the expiration of the Initial Term. The Further Term begins at Automatic Renewal and continues until the Agreement is Terminated.
GST means goods and services tax as defined by the Australian Tax Office.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended).
Hardware means the SIMPLE Hardware and Existing Equipment.
Hardware Specifications Documents means the hardware and technical specifications documents available from SIMPLE Support.
Hardware Support Agreement means the separate agreement between Customer an SIMPLE covering Customer’s hardware support and associated Hardware Support Fees.
Hardware Support Fees mean the applicable Fees to be paid by Customer to SIMPLE for hardware support, as detailed in Customer’s Hardware Support Agreement.
Initial Term means the Initial Term the Parties agreed to, as detailed on Customer’s Quote.
Installation Fee means the Fee payable by Customer for onsite installation of any applicable SIMPLE Hardware and/or Software and includes travel time and expenses.
Intellectual Property means all present and future rights in and to any copyright, trademark, trading name, design, patent, know how (trade secrets) and all other rights resulting from intellectual activity in any field and any application or right to apply for registration of any of these rights and any right to protect or enforce any of these rights.
ITSP means the third-party service provider who maintains the Hardware and IT needs on behalf of Customer.
Licence means the Software Licence granted by SIMPLE to the Customer as described in the Standard Terms.
Minimum Technical Specifications means the minimum hardware, technical and operating specifications provided by SIMPLE in the Hardware Specifications Documents.
Notice means written Notice and includes Notice delivered in person, by courier, by post electronic mail or facsimile.
Offsite Software Training means Software Training to be performed by SIMPLE at SIMPLE’s ordinary place of business for the Offsite Software Training Fee and includes Remote Software Training.
Offsite Software Training Fee means the Fee for any Offsite Software Training, to be paid to SIMPLE by Customer.
Onsite Software Training means Software Training to be performed by SIMPLE at Customer’s Business for the Onsite Software Training Fee.
Onsite Software Training Fee means the Fee for any Onsite Software Training, to be paid to SIMPLE by Customer.
Original Driver Disks means a compact disk that provides software for Customer’s Existing Equipment.
Pager Support means the emergency Support service available after hours on weekdays and weekends and public holidays.
Party and Parties means a person or business entity who has executed this Agreement and includes Customer and SIMPLE.
PBS Online Levy means the Fee to be paid to SIMPLE by Customer for maintaining the online PBS gateway.
Quote means the quotation provided to Customer by SIMPLE for the SIMPLE Hardware, Software, Support and Services.
Remote Software Training means Software Training performed remotely by SIMPLE and includes (but is not limited to) training performed over the phone or internet.
Services means the professional services provided by SIMPLE to Customer as detailed in Customer’s Quote.
SIMPLE means Simple Retail Pty Ltd, ACN 050 048 836, a Party to this Agreement.
SIMPLE Hardware means the hardware listed on Customer’s Quote and purchased by Customer through SIMPLE.
SIMPLE Hardware Fees mean the associated Fees for the purchase of new hardware through SIMPLE.
SMS means the short messaging service.
SMS Connect and SMS Reply means the short messaging services (SMS) provided by SIMPLE to Customer as an additional Software for sending and receiving SMS’s to and from Customer’s own pharmacy customers.
SMS Connect Fees means the monthly Fee charged by SIMPLE to Customer for each SMS sent by Customer.
SMS Reply Fees means the quarterly Fee charged by SIMPLE to Customer for use of the SMS Reply Software.
Software means the SIMPLE Intellectual Property software offering, including but not limited to PennyLane POS, Aquarius Dispense, Sequence, DrugBox, SMS Connect and SMS Reply and the Smartphone stocktaking application.
Software Cancellation Form means the form available from SIMPLE to be completed by Customer if Customer terminates this Agreement for any reason.
Software Licence Fee means the upfront licence Fees for the Software to be paid by Customer as per Customer’s Quote.
Software Support Fee means the applicable monthly Fees to be paid by Customer for the ongoing Support. Payment of the monthly Software Support Fee includes Software updates and Software maintenance.
Software Training means Onsite Software Training and Offsite Software Training.
Standard Terms means these terms and conditions.
Support means support services provided by SIMPLE to Customer and includes Pager Support. SIMPLE support is available to answer any queries and provide Software support in relation to the use and performance of the Software.
System means the computers, network and additional software programs used or operated in connection with the Customer’s Business.
Termination has the meaning set out in clauses 13.1, 13.2 and 13.3 of the Standard Terms.
References to the singular shall include the plural and vice versa.
References to a Party include that Party’s successors, legal personal representatives, nominees, administrators, substitutes (including, but not limited to, people taking by novation) and permitted assigns.