Compound Direct

Customer Software Licence Agreement

Terms of Service

 

Parties

Compound Direct	Compound Direct Pty Ltd ACN 652 134 739
Customer	the entity identified as the customer in the Order Form

 

Operative Provisions

1              Formation of Agreement

1.1           The Customer and Compound Direct enter into and agree to be bound by this agreement upon:

a.          the Customer completing and submitting an Order Form to Compound Direct; and

b.          Compound Direct accepting and processing the Order Form and notifying the Customer of that acceptance.

2              Services

2.1           Compound Direct will provide the Services to the Customer throughout the Term on the terms set out in this agreement.

2.2           The Customer may request that Compound Direct provide Additional Services from time to time.

2.3           If Compound Direct agrees to provide Additional Services, Compound Direct will provide the Customer with notice of the scope of the Additional Services and of any Additional Fees which Compound Direct notifies are payable in advance.

2.4           The terms of this agreement will apply to any Additional Services, in addition to and subject to any other terms which Compound Direct advises the Customer will apply to the Additional Services. 

3              Software Access

3.1           The Customer must ensure that the Quotas are not exceeded during the Term.

3.2           The Customer is responsible for allocating Accounts and determining the type of Account (e.g. administrative or general user level access) prior to allocating that Account.

3.3           During the Term, Compound Direct may (but is not obliged to):

a.          monitor the use of the Software by the Customer or End Users to assess compliance with this agreement;

b.          refuse or cancel an Account at its discretion, where the Customer or End User does not agree to, or fails to comply with the End User Agreement, breaches a term of this agreement or otherwise uses the Software in a manner which Compound Direct reasonably believes is inappropriate;

c.           monitor compliance with the Quotas and provide feedback on how many Accounts the Customer has allocated at any time.

3.4           The Customer may, at any time during the Term, by notice to Compound Direct (including via the Software) increase or decrease the Quotas by changing to a different Nominated Package.

3.5           Any Nominated Package upgrade will take effect immediately and any downgrade will take effect from the commencement of the next Renewal Term.

3.6           Unless it has been deleted, any Account activated by the Customer or its End Users will count towards the User Quota regardless of whether it has become archived, dormant, suspended, restricted or is otherwise unused during the Term.

4              Payment Terms

4.1           In consideration for the provision of the Services, the Customer must pay to Compound Direct the Licence Fee.

4.2           If a trial period is specified in the Order Form, the Customer will not be required to pay any Licence Fee for the duration of that trial period component of the Term.

4.3           In addition to the Licence Fee, the Customer must pay to Compound Direct any Additional Fees and all Costs.

4.4           Compound Direct will issue tax invoices for the Fees as follows:

a.          Compound Direct will issue a tax invoice for the Licence Fee on the Commencement Date and each Renewal Date;

b.          Compound Direct will issue a tax invoice for any Additional Fees and Costs on the date which the relevant Additional Fees and Costs have been incurred, unless Compound Direct advises that the Additional Fees will be payable as an adjustment to the Licence Fee, in which case they will be invoiced as part of the Licence Fee accordingly.

4.5           If the Customer upgrades its Nominated Package, a pro-rata calculation of the difference between the Licence Fee for the Customer's previous Nominated Package and the cost of the upgraded Nominated Package for the remainder of that Term will be treated as an Additional Fee.

4.6           The Customer authorises Compound Direct to charge the Customer the Fees via the Payment Method on each date which a tax invoice is issued pursuant to clause 4.4 (Payment Date).

4.7           Compound Direct may vary the Payment Date without notice at times to account for:

a.          public holidays;

b.          variations between the number of days in a month (i.e. to process a payment due on the 31^st on the 30^th for 30 day months);

c.           leap years; or

d.          to re-attempt charging the Payment Method where a previous attempt has been unsuccessful.

4.8           Compound Direct will seek the Customer’s consent prior to incurring any Costs, other than those outlined in the Order Form.

4.9           Each tax invoice issued by Compound Direct must be paid by the Customer in cleared funds in accordance with the details on the relevant tax invoice.

4.10           In addition to the Fees, the Customer is liable for any bank transfer fees, currency exchange fees, taxes, duties, dishonour fees and any other amounts payable to a third party as a result of the Customer’s payment of the Fees.

4.11        The Customer must pay all Fees without deduction, set off or counterclaim.

4.12        The Customer will not receive any refund or discount to the Fees where the number of Accounts allocated by the Customer or amount of storage or Balances used during the Term is less than the relevant Quota.

5              GST

5.1           Terms in this clause have the same meaning as given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

5.2           Unless otherwise specified in this agreement, all Fees are quoted exclusive of GST.

5.3           Fees incurred in connection with the provision of the Services are generally subject to GST if there is a sufficient connection with Australia. If so, Compound Direct is required to remit GST and  Compound Direct will charge the applicable GST in addition to the GST exclusive amount of those Fees.

5.4           Compound Direct will provide the Customer with a Tax Invoice for any Supply which attracts GST.

6              Tax

6.1           Except under this clause 6, the consideration for any supply made under or in connection with this document does not include any forms of Tax.

6.2           If a supply made under or in connection with this document is a supply which attracts Tax, then before the time any part of the consideration for the supply is payable, the Customer must inform Compound Direct of the Tax payable and must at the time any part of the consideration for the supply is payable, the Customer must pay an amount equal to the total Tax for the supply, in addition to and in the same manner as the consideration otherwise payable under this document for that supply.

6.3           If the Customer fails to notify Compound Direct of the Tax, the Customer will be responsible for the Tax and indemnifies Compound Direct from and against any liability arising in connection with the relevant Tax.

6.4           If the Customer is required by law to withhold any amount payable to Compound Direct under this agreement on account of Tax, the Customer must, upon withholding that amount, remit to Compound Direct all documentation Compound Direct requires to claim any foreign tax credit or other credit with respect to the withheld amount.

7              Availability of Services

7.1           The Customer acknowledges that:

a.          the Services do not include any supply of medicines, or verification of the accuracy of User Data, and that, as between the parties, the Customer is solely liable for the compounding of medicines and dispensing of any prescriptions to its clients;

b.          any information provided by the Customer which is inaccurate, incomplete or which is not provided to Compound Direct within a reasonable time of request, could have a material effect on the Services;

c.           Compound Direct is not responsible for verifying the underlying accuracy, truthfulness or completeness of any information provided by the Customer;

d.          Compound Direct’s obligation to comply with all laws applicable to Compound Direct and the Services overrides Compound Direct’s obligations to the Customer;

e.          User Data generated in connection with the Services will be collected and handled by Compound Direct in accordance with the Privacy Policy.

7.2           The Customer authorises Compound Direct and its Personnel to act as the Customer’s agent during the Term where strictly necessary to provide the Services.

7.3           The Customer acknowledges that:

a.          Compound Direct may modify and update the Software from time to time for any reason, including but not limited to improving the functionality and appearance of the Software or to create additional features or extensions;

b.          Compound Direct will take reasonable steps to advise the Customer in advance of any update that may substantially alter the functionality, reporting capability or general experience of using the Software;

c.           The compatibility of the Software and the Dependencies required to access the Software with certain devices may vary over time;

d.          with respect to Third Party Content:

                                            i.         Compound Direct is not responsible for any Third Party Content;

                                           ii.         the Customer accesses, uses and relies on Third Party Content at its own risk;

                                         iii.         Compound Direct does not endorse, control, sponsor or approve any Third Party Content and does not warrant or represent that any Third Party Content is accurate, complete, reliable, safe to access or otherwise complies with this agreement;

                                         iv.         Third Party Content may vary from time to time and access to certain aspects of the Software that is provided by third parties may be restricted if the terms and conditions of that third party are not accepted by the Customer.

8              Customer Obligations

8.1           The Customer must:

a.              comply with this agreement at all times during the Term;

b.              promptly provide Compound Direct with any information requested, where such request is made in connection with the provision of the Services;

c.              ensure it does not provide any User Data that would cause Compound Direct to be in breach of any law, including without limitation, the Privacy Act;

d.              not, and ensure that the End Users do not, use the Services or any part thereof:

                                            i.         to infringe or authorise the infringement of any Intellectual Property Rights or other rights of a third party;

                                           ii.         to store or distribute any illegal, or illegally obtained content;

                                         iii.         to circumvent any technological protection measure or to store or distribute any content which has been obtained via circumvention of any technological protection measure;

                                         iv.         to gain access to any material without the permission of any relevant persons where such permission is required by law;

                                          v.         to conduct illegal transactions;

                                         vi.         to circulate content that can damage, disrupt or compromise Compound Direct’s hardware or that of any third party;

                                        vii.         in any manner which is in breach of any law whether civil or criminal, including, without limitation, laws related to fraud, cybercrime, sedition, harassment, sexual harassment, defamation, stalking, nuisance or assault;

                                       viii.         in a manner intended or likely to create an unusual workload on any of the equipment used in the course of providing the Services; or

                                         ix.         in a manner which could adversely affect the provision of the Services or Compound Direct’s ability to provide similar services to others in the course of its business;

e.              except where permitted by law, not:

                                            i.         attempt to produce or use any counterfeit copy of the Software or otherwise tamper with the licensing component of the Software;

                                           ii.         attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive or access the source code, techniques, processes, algorithms, know-how or any other information (as applicable) from the Software;

                                         iii.         modify, create derivatives of or improvements to, decompile or otherwise attempt to access or extract the source code of the Software without Compound Direct’s express written permission;

                                         iv.         copy, archive, download, reproduce, distribute, sell, syndicate, broadcast, display, perform or otherwise use the Software other than as permitted by this agreement;

f.               not, and ensure that the End Users do not, create or circulate User Data that Compound Direct reasonably determines is:

                                            i.         illegal, threatening, defamatory, discriminatory, hateful, obscene, profane, graphically violent or pornographic or which incites violent or dangerous activities;

                                           ii.         created or used for a misleading or fraudulent purpose;

g.              accept responsibility for the User Data;

h.              not sell or attempt to sell or otherwise commercialise the Software;

i.                keep secret each username and password used to access the Services;

j.                assume full responsibility for any use of an Account by a third party;

k.              ensure that all End Users and any other third parties comply with this agreement to the extent it applies to them as a user of the Services;

l.                ensure that all End Users comply with the End User Agreement;

m.            take all reasonable steps to ensure that all information provided to Compound Direct, including User Data, is true, accurate, complete, up to date and is not misleading;

n.              assume responsibility for ensuring compliance with the Quota and providing Compound Direct with evidence of same on request;

o.              ensure it has adequate backups of all data to which Compound Direct will have access during the Term;

p.              ensure that it promptly updates Compound Direct if any information which it has previously provided to Compound Direct, including its contact details and Payment Method, changes;

q.              not deliberately withhold information relevant to the Services or this agreement, from Compound Direct;

r.               immediately inform Compound Direct if it becomes aware of any information or change in its circumstances that may:

                                            i.         significantly affect or alter the provision of the Services; or

                                           ii.         reasonably be expected to adversely affect Compound Direct’s reputation if Compound Direct continued to provide the Services to the Customer or its End Users;

s.              use the Services in accordance with all applicable laws and Compound Direct’s reasonable instructions;

t.              

u.               accept sole responsibility for ensuring any medicine labels it generates via the Software contain all information required by applicable pharmaceutical dispensing laws and practice guidelines;

v.               not remove any proprietary notices or labels from the Software;

w.              not use the Software with unsupported equipment, software, configurations or other conflicting services;

x.              not do, cause or authorise the doing of anything which may adversely affect or jeopardise the validity of Compound Direct’s Intellectual Property Rights in the  Software;

y.             not do or say anything harmful to the reputation of Compound Direct, its Personnel and its business or which may lead a person to cease, curtail or alter the terms of its dealings with Compound Direct;

z.              promptly inform Compound Direct of any defects in the Software that are found by the Customer or reported by an End User, including but not limited to, exploitable or potentially exploitable security vulnerabilities.

9              Intellectual Property Rights

9.1           Subject to the terms of this agreement, Compound Direct agrees to provide to the Customer as part of the Services, a limited, non-transferable, non-exclusive license to use the Software during the Term for the Permitted Purpose.   

9.2           The Customer must not sub-licence its right to use the Software other than to allocate Accounts to End Users, provided that the User Quota is not exceeded at any time.

9.3           Aside from the licence granted in clause 9.1, this agreement does not grant the Customer any other rights in the Software.

9.4           If, at any time during or after the Term, the Customer is in breach of this agreement, Compound Direct may revoke, restrict or suspend the licence granted in clause 9.1, and any associated sub-licences, by notice to the Customer.  

9.5           As between the parties, all right, title and interest in the Compound Direct Content is owned and retained by, and vests on creation in, Compound Direct.

9.6           The Customer retains all right, title and interest which it holds in the User Data and grants Compound Direct a perpetual, transferable, irrevocable, non-exclusive, royalty free licence to use, modify, reproduce, publish, adapt, display, distribute and transmit the User Data in connection with the provision of the Services, for the ongoing provision and improvement of the Software, for Compound Direct’s research and data collection purposes and for monitoring compliance with this agreement. The Customer agrees not to enforce any moral rights in and to the User Data when used by Compound Direct under this clause.

9.7           The Customer grants Compound Direct a non-exclusive, royalty free licence during the Term to display the Customer's business name and branding on the Compound Direct Website and associated marketing material solely for the purpose of identifying the Customer as a client of Compound Direct.

9.8           The Customer warrants that it has all the rights, title and authority required to grant Compound Direct the licences in clauses 9.6 and 9.7.

10           Confidential Information

10.1        Subject to clause 10.2, each party must:

a.          keep any Confidential Information of the other party (Discloser Confidential Information) confidential at all times;

b.          not use the Discloser Confidential Information other than for the purpose of exercising its rights and performing its obligations under this agreement;

c.           only use any Personal Information within the Discloser Confidential Information in accordance with the Privacy Act.

10.2         A party may disclose Discloser Confidential Information:

a.          where consent to do so is received from the other party;

b.          with respect to Compound Direct, as necessary to carry out the Services or any Additional Services;

c.           to its personnel, officers, professional advisers or agents and its related bodies corporate who have a need to know the Discloser Confidential Information and have agreed in writing to maintain confidentiality of the Discloser Confidential Information.

11           Warranties

11.1        The Customer warrants and represents to Compound Direct, and acknowledges that Compound Direct has entered into this agreement in reliance on, the following:

a.          there is no circumstance which would make this document, or any transaction contemplated by it void, voidable or unenforceable;

b.          the Customer has read, understood and had the opportunity to obtain independent legal advice in relation to this agreement;

c.           the Customer has the power, capacity and authorisations necessary to enter into this agreement; and

d.          the Customer has had sufficient opportunity to make enquiries, prior to entering into this agreement, to satisfy themselves that the Services are suitable for the Customer’s purposes and objectives.

12           Suspension

12.1        Compound Direct may suspend or restrict the Services where:

a.          the Customer fails to meet any of its obligations under this agreement, including where any payment to Compound Direct is overdue (in addition to any other rights Compound Direct may have);

b.          a Delay Event occurs, in which case:

                                            i.         Compound Direct will not be liable to the Customer, or in breach of its obligations under this agreement where a breach arises due to, or in connection with the Delay Event;

                                           ii.         any party may terminate the agreement by notice to the other party if the Delay Event subsists continuously for 14 days or more (except where the Customer caused the Delay Event, in which case only Compound Direct may terminate); or

c.           the parties otherwise agree in writing to the suspension or restriction.

12.2        Any suspension or restriction of the Services pursuant to this clause 12 which arises due to an act or omission of the Customer does not suspend the Customer’s payment obligations under this agreement.

13           Term & Renewal

13.1        This agreement commences on the Commencement Date and continues for the Term unless earlier terminated pursuant to this agreement.  

13.2        Unless either party provides the other party with notice that it does not wish to renew the term of this agreement at least 5 days before the end of the Initial Term or any subsequent term (Current Term), this agreement will automatically renew at the end of the Current Term for the same period of time as the Initial Term (Renewed Term).

14           Termination

14.1        If a trial period is specified in the Order Form, either party may terminate this agreement at any time by notice to the other party during the trial period.

14.2        Without limitation to its rights against the Customer, Compound Direct may terminate this agreement immediately if the Customer commits any of the following acts of default:

a.          fails to pay any amount payable to Compound Direct under this agreement when due;

b.          suffers an Insolvency Event;

c.           engages in any act or omission which:

                                            i.         is illegal or which Compound Direct reasonably considers is unethical; or

                                           ii.         is likely to damage the reputation of, or result in a Claim against Compound Direct or its Personnel;

d.          breaches a term of this agreement that cannot be remedied; or

e.          breaches a term of this agreement (other than a breach under clause 14.2(a) to 14.2(d)) and fails to remedy that breach within 14 days of receiving notice to do so from Compound Direct.

14.3        The Customer may terminate this agreement immediately if Compound Direct commits any of the following acts of default:

a.          breaches a term of this agreement that cannot be remedied; or

b.          breaches a term of this agreement (other than a breach under clause 14.2(a)) and fails to remedy that breach within 14 days of receiving notice to do so from the Customer.

15           Effect of termination

15.1        On and from the effective date of termination of this agreement:

a.          Compound Direct will cease providing the Services to the Customer;

b.          Compound Direct may withhold and retain possession of any User Data, other information or property it holds of the Customer or End Users until any outstanding Fees are paid to Compound Direct;

c.           Compound Direct may issue tax invoices for any Services provided up to the effective date of termination;

d.          all outstanding tax invoices issued by Compound Direct become due and payable immediately;

e.          the Customer will not be entitled to any refund of any Fees paid unless required by law or Compound Direct agrees otherwise;

f.            the Customer consents to Compound Direct providing the Customer’s Personal Information to a credit rating agency where this agreement is terminated for default under clause 14.1(a);

g.          subject to clause 15.1(b) and any retention requirement imposed by law, each party must, within 14 days of the effective date of termination of this agreement, deliver up to the other party all of the Confidential Information held, of that other party; and

h.          the Customer must cease to use, and deliver up to Compound Direct (or destroy, upon request by Compound Direct), all Compound Direct Content in the possession of the Customer, within 7 days of the effective date of termination of this agreement; and

i.            where applicable, Compound Direct will not be required to provide the Customer with any assistance to migrate its User Data from Compound Direct’s servers unless Compound Direct agrees to do so as an Additional Service.  

15.2        Termination of this agreement does not affect the accrued rights and remedies of the parties prior to termination.

16           Disclaimer

16.1        To the maximum extent permitted by law, Compound Direct:

a.          does not provide any guarantee or warranty or make any representation with respect to the Services or Software except as expressly set out in this agreement. Specifically Compound Direct does not guarantee that any calculations produced by the Software will be reliable, accurate or suitable for use in conjunction with compounding any medicines or dispensing any particular prescriptions;

b.          disclaims, and the Customer agrees to release Compound Direct, its officers and Personnel from, all liability for any Claim or Loss howsoever arising directly or indirectly in connection with the Services or the Software, except to the extent that a grossly negligent act or omission of Compound Direct directly caused the Claim or Loss to arise.

16.2        Where Compound Direct’s liability under this agreement cannot be fully disclaimed, Compound Direct’s liability for any loss or damage the Customer suffers as a result of the Services or Software (howsoever caused, including by Compound Direct’s negligence), is capped at the total Fees paid by the Customer in the 12 months prior to the Claim arising.

16.3        The cap in clause 16.2 applies to any single or cumulative claims by the Customer, and the Customer agrees that Compound Direct may plead this limitation of liability in defence to any claims the Customer may bring against Compound Direct for any such loss or damage.

16.4        This agreement does not purport to limit any non-waivable rights that the Customer may be entitled to by law.

16.5        Where permitted by law, Compound Direct limits its maximum liability, at Compound Direct’s option, to the supply of the goods or services (as relevant) again or the payment of the cost of having the goods or services supplied again. This limitation only applies to guarantees under the Competition and Consumer Act 2010 (Cth) of Australia.

17           Indemnities

17.1        The Customer indemnifies and holds harmless Compound Direct, its officers and Personnel from and against any Claim or Loss which Compound Direct suffers or incurs arising directly or indirectly out of, or in connection with any:

a.          breach of this agreement by the Customer or an End User;

b.          unlawful act or omission of the Customer or an End User;

c.           injury, disability or death of any person caused or contributed to by any medicines, drugs or other products compounded by the Customer or an End User;

d.          dispensing of prescriptions by the Customer or its End Users;

e.          breach of law by Compound Direct to the extent the breach was caused or contributed to by an act of omission of the Customer;

f.            act or omission of the Customer or the End Users when using the Services; and

g.          reliance on or use by Compound Direct of the User Data.

17.2        The indemnity given by the Customer in clause 17.1 is limited to the extent that any grossly negligent act or omission of Compound Direct caused or contributed to the Claim or Loss arising.

18           Variations

18.1        The terms of this agreement may be varied:

a.          by written agreement between the parties; or

b.          by Compound Direct, provided that the Customer:

                                            i.         receives at least 30 days notice of any proposed change to a material term of this agreement; and

                                           ii.         is given the option to terminate this agreement prior to the change taking effect if Compound Direct advises that it will take effect before the next Renewal Date. 

19           Dispute Resolution

19.1        If a dispute arises in relation to the rights and obligations of the parties under this agreement (other than where a right of termination has arisen pursuant to clause 14.1), (the Dispute), the party raising the Dispute, must, in the first instance, provide the other party with details of the Dispute (Dispute Notice). 

19.2        The parties must use their best endeavours and act in good faith to attempt to resolve the Dispute within 14 days from receipt of the Dispute Notice (Dispute Period).

19.3        The parties must follow the steps set out in this clause 19 prior to initiating legal proceedings or taking action in any other forum in relation to the Dispute.

19.4        Nothing in this clause 19 prevents either party seeking urgent interlocutory relief from a court in relation to any breach or potential breach of an obligation of confidentiality or in relation to any other matter of urgency.  

20           Notices

20.1        Notices given under this agreement:

a.          must be in writing and in clearly readable English;

b.          must be signed by the party giving or making it (or signed on behalf of that party by its authorised representative); and 

c.           may be delivered to a party by hand or by email to that party’s address or email address as shown in this agreement or to such other address or person as a party may specify by notice given in accordance with this clause, or with respect to the Customer, an email address specified in the Order Form.

20.2        A notice is taken to be duly given and received:

a.          if delivered by hand, when delivered; or

b.          if delivered by email, when sent, provided the sender has not received notice of any failure of the notice to be delivered.

20.3        Despite clause 20.2, notices received after 5 pm in the place of receipt or on a non-Business Day are taken to be received at 9 am on the next Business Day.

21           General

21.1        Relationship between the parties

Nothing in this agreement will constitute the parties as employer and employee, agent and principal, partners or otherwise. Unless expressly stated otherwise in this agreement, nothing renders a party liable for the acts or omissions of any other party and nothing gives either party the ability to act or incur liability on behalf of the other party.

21.2        Entire agreement

To the extent permitted by law, this agreement (and the Order Form and any other document to the extent it is expressly incorporated herein) records the entire agreement between the parties in relation to its subject matter. It supersedes all prior contracts, arrangements, understandings or negotiations by, or between, the parties in relation to the subject matter of this agreement (including, but not limited to any email correspondence or other informal correspondence between the parties).

21.3        Consent

Except to the extent the context requires otherwise, where an act, right or obligation under this agreement is subject to the consent of a party, it may grant or withhold that consent in its sole discretion and is not required to provide a reason for that grant or withholding.

21.4        Further assurance

Each party must (at its own expense) do all things that any other party reasonably requires of it to give the other party the full benefit of any obligations owed to the other party and expressed in this agreement.

21.5        Survival

Clauses 9.6, 16, 17, 20, 21 and 22 survive termination of this agreement.

21.6        No waiver

The failure, delay or omission by a party to exercise, or to partially exercise, a right, power or remedy under this agreement does not operate as a waiver of that right, power or remedy. A party which exercises, or partially exercises, a right, power or remedy maintains its right to further exercise the same right, power or remedy or to exercise another right, power or remedy.  A party waives a right, power or remedy only by explicitly doing so in a written notice to the other party and the waiver is strictly limited to the matters specified in the notice.

21.7        Non-exclusivity

The parties acknowledge that this agreement does not establish any exclusive relationship between the parties. Each party is free to deal with third parties in respect of any services similar to the services contemplated by this agreement.

21.8        Special Conditions

The Special Conditions form part of the terms of this agreement and prevail to the extent of any inconsistency with any other term.

21.9        Cumulative rights

The rights, powers, authorities, discretions and remedies of a party under this agreement do not exclude any other right, power, authority, discretion or remedy.

21.10      Severability

If any provision of this agreement is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:

a.          where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;

b.          where the offending provision cannot be read down then that provision must be severed from the agreement in which event, the remaining provisions of this agreement operate as if the severed provision had not been included; and

c.           the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,

but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this agreement.

21.11      Governing law and jurisdiction

This agreement is governed by the law of Queensland, Australia. Each party submits to the jurisdiction of the courts in Queensland in connection with matters concerning this agreement.

21.12      Assignment by the Customer

Unless expressly stated otherwise in this agreement, the Customer must not assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights under this agreement without the prior written consent of Compound Direct.

21.13      Assignment by Compound Direct

Compound Direct may assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights (or any part thereof) under this agreement at any time and the Customer hereby consents to Compound Direct transferring, disclosing or otherwise dealing with the Customer and its End User’s Personal Information and User Data for the purpose of effecting the assignment, novation or other transfer of rights under this clause.   

21.14      Sub-Contracting

Compound Direct may, from time to time, sub-contract any part of its obligations under this agreement to third parties at its own expense.

22           Definitions and interpretation

22.1    Definitions

In this agreement, the following definitions will apply:

Account	means a sub-licence to use the Software, as granted to an End User by the Customer pursuant to this agreement for no longer than the Term and which is restricted by the terms of the End User Agreement.
Additional Fees	means the fees for any Additional Services.
Additional Services	means any services to be provided to the Customer which are outside of the scope of the Services.
Balances	means balance scales for measuring pharmaceutical compounds.
Balances Quota	means the maximum number of Balances that can be registered within the Software by the Customer or its End Users at any one time, determined based on the Nominated Package selected by the Customer.
Business Day	means a day other than that which is a Saturday, Sunday or public holiday in Brisbane, Queensland.
Claim	means any claim, counterclaim, demand, cause of action or proceedings (whether based in contract, tort or statute) and any defence to a claim, counterclaim, demand, cause of action or proceedings.
Commencement Date	means the first date that the Services will be provided under this agreement, as notified by Compound Direct to the Customer via the Order Form.
Compound Direct Content	means: a.      the Software; b.       any data which provides descriptive, technical, statistical and other metadata type, non-Personal Information regarding the use of the Accounts (but excluding User Data); and c.       any other software, information or materials in any form, developed, created or provided by Compound Direct or its Personnel in the course of providing the Services; including all Intellectual Property Rights therein.
Compound Direct Website	means the website accessible via https://compound.direct as amended from time to time.
Confidential Information	means all information in relation to a party (Discloser) which: a.       is by its nature confidential; b.       the Discloser indicates is confidential; or c.       the receiving party (Recipient) ought to know is confidential; other than information that the Recipient can establish: a.       was in the public domain when it was given to the Recipient; b.       becomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this agreement; c.       was in the lawful knowledge and possession of the Recipient before it was disclosed to the Recipient, or was otherwise developed independently by the Recipient without reference to or use of any of the Discloser’s Confidential Information; or d.       was lawfully received by the Recipient from another entity having the unrestricted legal right to disclose that information without requiring the maintenance of confidentiality.
Corporations Act	refers to the Corporations Act 2001 (Cth) of Australia.
Costs	means any costs incurred by Compound Direct in the course of providing the Services or Additional Services.
Current Term	has that meaning given to it in clause 13.2.
Delay Event	means an event which is beyond the reasonable control of Compound Direct and which causes a delay or failure in the performance of Compound Direct’s obligations under this agreement, including but not limited to: a.       any act, delay or omission of the Customer or their agents or other third party which adversely affects Compound Direct’s capacity to provide the Services; b.       restriction to, unavailability of, or unsuitability of personnel, facilities, materials or third-party software or services required for the Services where Compound Direct has taken all reasonable steps to find suitable replacements; or c.       inclement weather, power failure, earthquake, cyclone, fire, explosion, flood, landslide, lightning storm, war, invasion, pandemic, sabotage, malicious damage, terrorism or civil unrest, order of any government or government authority or change to legislation, strikes or other industrial disputes.
Dependencies	means the necessary minimum requirements of the Customer or an End User’s software, hardware, configuration and environment (including third-party services) which must be met by the Customer in order for the Services to be provided.
End User	means an individual who has been allocated an Account by the Customer.
End User Agreement	means the agreement accessible via the Compound Direct Website as varied by Compound Direct from time to time.
Fees	means, as applicable, all amounts payable by the Customer under this agreement, including but not limited to the: a.             Licence Fee; b.             Additional Fees; and c.              Costs.
Initial Term	means the term specified as such in the Order Form, commencing from the Commencement Date.
Insolvency Event	means any of the following events occurring in relation to a party: a.             if an application is filed for the winding up of the party (winding up application) and the winding up application is not dismissed or withdrawn within five Business Days of that application being filed; b.             if an order is made for the winding up of the party and the winding up is not stayed indefinitely or terminated within five Business Days of the winding up order being made; c.              if the party’s shareholders pass a resolution for its winding up; d.             if a receiver, receiver and manager, controller (as defined in section 9 Corporations Act), or similar person is appointed to, or the holder of a Security Interest takes (or appoints an agent to take) possession of, any property of the party; e.             if a provisional liquidator is appointed to the party; f.               if:                                  i.                  the party is placed into administration (as defined in section 9 Corporations Act) or enters into a deed of company arrangement (as defined in section 9 Corporations Act); or                                 ii.                  the party or any other person takes any step towards placing the party into administration or towards entering into a deed of company arrangement; g.             if the party:                                  i.                  advises the other party that it is financially unable to proceed with or meet any of its obligations under this document;                                 ii.                  without the written consent of the other party, suspends payment of its debts;                                iii.                  ceases or threatens to cease to carry on all or a material part of its business;                                iv.                  is or states that it is unable to pay its debts as and when they fall due and payable; or                                 v.                  is taken to fail to comply with a statutory demand under section 459F Corporations Act; h.             if the party, without the consent of the other party:                                  i.                  begins negotiations with one or more of its creditors seeking a general readjustment or rescheduling of its indebtedness to one or more of its creditors;                                 ii.                  takes any steps toward entering into, or enters into, any compromise or arrangement with one or more of its creditors under part 5.1 Corporations Act; or                                iii.                  makes any assignment or enters into any arrangement or composition generally for the benefit of one or more of its creditors; i.               if the party:                               iv.                  commits an act of bankruptcy under section 40 Bankruptcy Act; or                                v.                  is made bankrupt; j.               if the party becomes or takes any step that could result in the party becoming an insolvent under administration (as defined in section 9 Corporations Act); k.              if the party enters into or takes any step that could result in the party entering into a personal insolvency agreement under part X Bankruptcy Act; l.               if the party enters into or takes any step that could result in the party entering into a debt agreement under part IX Bankruptcy Act; m.            if execution is levied against the party by a creditor; n.             if any matter relating to the party becomes subject to a direction under, or has effect as if it were a direction under, section 14 Australian Securities and Investment Commission Act 2001 (Cth), or to an investigation under, or taken to be under, Australian Securities and Investment Commission Act 2001 (Cth); or o.             if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition, unless:                                  i.                  the event takes place as part of a solvent reconstruction, amalgamation, merger or consolidation on terms approved by the other party before it takes place; and                                 ii.                  the implementation of the reconstruction, amalgamation, merger or consolidation complies with the terms of the approval.
Intellectual Property Rights	means: a.             all present and future industrial, intellectual or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, algorithms, designs, trade secrets, inventions, discoveries, know-how, confidential information, plant varieties and circuit layouts, including any modifications, adaptations and improvements thereto; and b.             all statutory and common law rights including the right to sue for damages and other remedies against third parties for infringement or misuse of the related intellectual property, whether or not the infringement or misuse took place before the date of this agreement and retain all amounts recovered in any action (whether as to damages, or following an account of profits or on any other basis) obtained as a result of any such action.
Licence Fee	means the licence fees for the Nominated Package, as specified in the Order Form, subject to variation pursuant to this agreement.
Loss	includes losses, damages, costs (including legal costs), expenses and liabilities, however arising (regardless of whether those losses were foreseeable or not), including, but not limited to, special, indirect, punitive, unascertainable, contingent, prospective and consequential losses or damages, loss of profits, loss of savings, loss of income or revenue, loss in connection with revenue not meeting targets or certain levels, loss in connection with uptime or availability of internet connectivity or the ability of third parties to access a website, loss of opportunity or loss due to loss or corruption of data.
Nominated Package	means the type of services package selected by the Customer, as specified in the Order Form.
Order Form	means the online Order Form accessible via the Compound Direct Website, as completed and submitted to Compound Direct by the Customer.
Payment Method	means the payment method nominated in the Order Form.
Permitted Purpose	means the Customer's internal pharmacy compounding calculation purposes.
Personal Information	means any information or opinion relating to or about an identified or identifiable natural person or about an individual who is reasonably identifiable.
Personnel	means any person or entity who Compound Direct employs or engages as an agent, contractor or otherwise, to provide the Services.
Privacy Act	means the Privacy Act 1988 (Cth) as amended from time to time and including all regulations and schedules relating thereto.
Privacy Policy	means Compound Direct’s privacy policy as amended from time to time, accessible via the Compound Direct Website.
Quotas	means the User Quota, Storage Quota and Balances Quota.
Renewal Date	means the first day of each Renewed Term.
Renewed Term	has that meaning given to it in clause 13.2.
Services	means the services described in Schedule 1, subject to variation pursuant to this agreement.
Software	means the pharmaceutical compounding support software as described in the Order Form, subject to variation pursuant to this agreement.
Special Conditions	means the special conditions set out in the Order Form.
Storage Quota	means the maximum amount of User Data that can be stored on Compound Direct's cloud storage facility at any one time, determined based on the Nominated Package selected by the Customer.
Tax	any forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether arising under Australian law or any other jurisdiction; and any penalty, fine, surcharge, interest, charges or costs relating thereto.
Term	means the term of this agreement, being the Initial Term and any Renewed Term, unless terminated earlier pursuant to this agreement.
Third Party Content	means any content provided by an entity or person other than Compound Direct which is accessible via the Software (such as third party software add-ons or links, supplier compounding ingredient stock lists or Certificates of Analysis).
User Data	means any content and data in any form (including but not limited to measurements, calculations, client information, compound descriptions, pictures, videos, written word and audio files) which the Customer or an End User (as the case may be) submits, posts, uploads, publishes, transmits, stores or otherwise inputs to the Software, or in connection with the Services, and includes all Intellectual Property Rights therein.
User Quota	means the maximum number of Accounts available to the Customer and its End Users at any one time, determined based on the Nominated Package selected by the Customer.

22.2        Interpretation

In this agreement, unless the context otherwise requires:

a.          words denoting any gender include all genders;

b.          headings are for convenience only and do not affect interpretation;

c.           the singular includes the plural and vice versa;

d.          any schedule or annexure attached to this agreement forms part of it;

e.          a reference to a party includes its legal personal representatives, successors and permitted assigns;

f.            except where specified otherwise herein or in the Order Form, a reference to an amount means that amount in Australian dollars;

g.          a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;

h.          a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

i.            unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and

j.            a reference to this agreement means this agreement and includes any variation or replacement of this agreement.

Schedule 1 – Description of Services

Services

Software Access	This service includes: a.     access to the Software for Accounts up to the User Quota; b.     allocation of Balances within the Software up to the Balances Quota; c.     Accounts can be held by the Customer or its End Users; d.     Customers can manage the Accounts of its End Users through the Software.
Cloud Storage	This service includes a cloud based facility which stores copies of all User Data of the Customer and its End Users up to the Storage Quota.
Support Services	This service includes access to professional staff and services to assist with resolving Customer queries or issues in relation to the Software.