1. DEFINITIONS
In this Agreement:
"Agreement" means the agreement between SHP and the Client set out in this document and, where a written proposal has been issued to the Client by SHP, includes that document also.
"Allied Health Practitioner" means the independent allied health care practitioners engaged by SHP to provide services to the Client from time to time.
"Candidate" means a person nominated for assessment by the Client.
"Client" means the entity to which the Services are provided under this Agreement.
"Commencement Date" means the date on which Services are first provided to the Client under this Agreement.
"Confidential Information" means any information relating to a party that is designated as, or would reasonably be considered to be, confidential in nature.
"Doctors" means the independent medical practitioners engaged by SHP to provide services to the Client from time to time.
"Force Majeure Event" means any cause beyond the control of a party including (without limitation) strikes, industrial action, floods, fires, accident, earthquake, riot, explosion, war, hostility, acts of government, military, civil or regulatory authority, change in any law or regulation, disruption or interruption to the supply of communications, internet, power or other utility.
"Patient Records" means the records of patients or Candidates who receive medical treatment as part of the Services.
"Practitioners" means Doctors and Allied Health Practitioners (as applicable).
"Practitioner Services" means those services provided to the Client by Doctors and Allied Health Practitioners and facilitated by SHP under this Agreement.
"Services" means the SHP Services and Practitioner Services provided to the Client under this Agreement.
"Services Fee" means the services fees charged by SHP for provision of the Services, as reviewed from time-to-time in accordance with clause 4.6. "SHP" means Sonic HealthPlus Pty Limited (ABN 39 100 261 265).
"SHP Services" means the services provided directly to the Client by SHP under this Agreement.
"Term" means the period starting on the Commencement Date, and ending on the Termination Date.
"Termination Date" means the date on which the Agreement is terminated pursuant its provisions.
2. TERM
This Agreement will continue for the Term unless terminated earlier pursuant to its provisions. If Service delivery commences before this Agreement is signed, or continues after the expiry of any agreed fixed term, it will be deemed to be on the terms of this Agreement unless otherwise agreed.
3. SERVICES
3.1. Provision
SHP will provide the SHP Services to the Client, and will facilitate the provision of the Practitioner Services to the Client, for the Term and on the terms of this Agreement.
3.2. Appointments and bookings
The Client is responsible for pre-booking Candidate appointments. If a Candidate arrives without a pre booked appointment, SHP may treat that person as a private patient and may require an advance cash payment for the appointment on the day.
3.3. Scope of Services
The Services set out in this Agreement are all of the Services to be provided by SHP. Any further services requested by the Client may be provided on terms (including costs) as may be agreed between the parties.
4. FEES
4.1. SHP Services
- The Client must pay any Services Fees in respect of SHP Services to SHP. Unless otherwise agreed in writing, SHP will charge the Client its standard rates for the provision of each SHP Service provided, as may be applicable at that time. Unless otherwise stated, these Services Fees are exclusive of GST.
- SHP may charge (and the Client must pay) additional Services Fees when additional consumables are used by SHP as a result of an act or omission of a Candidate (including but not limited to where an additional instant drug screen cup is used when a Candidate is not able to void, or when samples provided are too dilute).
4.2. Doctor Services
SHP has been appointed by the Practitioners to invoice and collect all Services Fees payable by the Client for the Practitioner Services. Unless otherwise agreed in writing, SHP will charge the Client the standard rates for the provision of each Practitioner Service provided, as may be applicable at that time. Unless otherwise stated, these Services Fees are exclusive of GST.
The parties acknowledge and agree that:
- in the event that there is a substantial increase in the wholesale price of a medication or vaccine which would result in the Service Provider incurring a loss from providing that medication or vaccine to the client, the Service Provider may on-charge the client (and the client agrees to pay) for the increased cost of the medication or vaccine; and
- in the event that there is a national shortage or lack of availability of a medication or vaccine which results in the Service Provider being unable to provide the agreed medication or vaccine to the client, the Service Provider may, without notice to the client, use a subcontractor to provide the medication or vaccine.
The Service Provider must present provide reasonable evidence to the client to justify its actions under this clause as upon requested.
4.3. Invoicing & GST
SHP will issue the Client with a valid tax invoice for the Services provided (plus applicable GST) during the relevant period. If the Client requires a purchase order or reference number (or similar) in respect of those Services, it must advise SHP of that number in advance at the time the Services are booked.
4.4. Payment Terms
The Client must pay SHP’s invoices within 30 days of the invoice date using the payment method advised by SHP from time-to-time. If the Client disputes any part of the invoice, it must pay the undisputed part within 30 days of the invoice date, and any disputed parts agreed or determined as due no more than 5 days after settlement of the dispute.
4.5. Set off
SHP may set off any amounts owed to SHP by the Client against any amounts payable by the Client to SHP under this Agreement, or any other agreement.
4.6. Review of Services Fee
SHP may review the Services Fee:
4.6.1. on 1 July each year; and
4.6.2. at any time by giving the Client no less than 30 days’ notice.
5. CANCELLATIONS & RESCHEDULES
5.1. Cancellation fees
If Services to be provided by SHP on a certain date ('Service Date') are cancelled by the Client:
5.1.1. in relation to in-clinic Services, less than one business day before the Service Date, or the Services cannot be provided on the Service Date because the Candidate does not attend, SHP may charge a fee equal to 75% of the cost of the cancelled Services; and
5.1.2. in relation to on-site Services, less than one week before the Service Date, SHP may charge a fee equal to 50% of the cost of the cancelled Services
5.2. Cancellation of bulk bookings
If the Client cancels a bulk booking (i.e. for 5 Candidates or more), less than 2 business days before the Service Date, SHP may charge a fee equal to 75% of the cost of the cancelled Services.
CREDIT FACILITY
5.3. SHP Before
SHP provides the Client with credit, it may request information necessary for SHP to establish the creditworthiness of the Client. Any decision to provide credit, and the terms on which it is provided, is at the sole discretion of SHP.
5.4. Disclosure of Information
SHP may disclose any information provided by the Client in the course of a credit application to a credit reporting agency. SHP may obtain personal or other information relating to the Client from a credit reporting agency, credit provider or other party for the purposes of assessing creditworthiness.
5.5. Credit Limit
If SHP provides the Client with credit, SHP may set a credit limit, which the Client must not exceed, or attempt to exceed. SHP may reduce the credit limit on written notice to the Client, but will not, without the consent of the Client, reduce the limit to less than the outstanding balance of the Client’s account at the time.
5.6. Suspension of Credit Facility
If SHP determines that the Client:
5.6.1. has obtained credit through fraud or dishonesty;
5.6.2. has an account in arrears for more than 21 days;
5.6.3. uses the credit facility in circumstances which may cause damage or loss to SHP; or
5.6.4. has a creditworthiness position that changes materially, then SHP may:
- invoke its “stop credit” process by immediately closing or suspending the credit facility (in which case, the Client will be unable to book or receive any Services until such time as a payment plan is approved by SHP, or the account has been paid in full); and
- recover any amounts due in accordance with clause 5.7 without further notice.
5.7. Debt recovery
If the Client does not pay Services Fees or any amounts due to SHP in accordance with this Agreement, SHP may pursue the payment of those debts, and the Client must pay SHP’s costs in doing so, including (without limitation) administrative, legal and court fees.
6. CLINICAL MATTERS
6.1. Patient Records
Title to all Patient Records created as part of the Services will vest on creation, and remain with, SHP.
6.2. Statement of Sovereignty
The Client acknowledges that each Practitioner may exercise its own professional judgment and discretion at any time, in respect of:
6.2.1. the Practitioner Services provided;
6.2.2. the referral of patients by the Doctor to specialists or to other medical practitioners; or
6.2.3. the use of ancillary medical services including, without limitation, pathology and diagnostic imaging services.
6.3. Independent Practitioner Services
SHP will coordinate the delivery of the Practitioner Services to the Client. SHP engages numerous medical centres and Practitioners to provide those services. SHP does not ordinarily employ Practitioners. Unless the Client is otherwise advised by SHP, each Practitioner is directly responsible for the Practitioner Services it provides to the Client, and SHP assumes no liability for those services.
7. WORKPLACE HEALTH & SAFETY
If the Services (or any part of them) are performed at the Client’s premises, or on sites controlled or managed by the Client, the Client must ensure that all it complies with all applicable Workplace Health and Safety laws and standards necessary to ensure a safe work environment for SHP’s employees, Practitioners and other representatives.
8. FORCE MAJEURE
Neither party will be liable for any delay or failure to perform its obligations under this document as a result of a Force Majeure Event. The party affected by a Force Majeure Event must notify the other party as soon as practicable of any anticipated delay or impact on the delivery of the Services. The performance of the affected party’s obligations under this Agreement will be suspended for the period of the delay, and any deadlines will be extended accordingly.
9. TERMINATION
9.1. Termination by SHP
SHP may either suspend or immediately terminate the Agreement by giving written notice to the Client on the happening of any of the following events:
9.1.1. the Client fails to pay the Service Fees in accordance with this Agreement;
9.1.2. the Client otherwise breaches this Agreement, and fails to remedy that breach within 14 days of receiving written notice from SHP to do so; or
9.1.3. the Client is insolvent, or in the reasonable opinion of SHP, is otherwise unable to pay its debts as they fall due.
9.2. Termination by the Client
The Client may terminate this Agreement immediately on written notice to SHP if SHP has breached this Agreement and fails to remedy that breach within 21 days of receiving written notice from the Client to do so.
9.3. Termination without cause
This Agreement may be terminated at any time and without cause by either party giving 30 days’ written notice to the other party.
9.4. No compensation
If a party terminates the Agreement in accordance with clause 9.3, neither party will be entitled to any compensation or damages from the other party in relation to that termination.
9.5. Survival of provisions
Termination of this Agreement will not affect those provisions of the Agreement expressed to operate or have effect after that time, and is without prejudice to any rights accrued by either party in respect of any breaches existing before termination.
10. NO POACHING
10.1. Non-poach
The Client must not, without SHP’s prior written consent, which may be refused in its absolute discretion, directly or indirectly solicit, employ or engage:
10.1.1. any SHP employee; or
10.1.2. any Practitioner engaged by SHP to provide the Services, for a period of 6 months from the date of termination of the Agreement.
10.2. Waiver or breach of non-poach If:
10.2.1. SHP agrees to the Client engaging or employing an SHP employee or Practitioner; or
10.2.2. the Client solicits, employs or engages a SHP employee or Practitioner without first obtaining SHP’s consent, the Client must pay a fee to SHP, which will be the greater of $20,000 (+ GST) or an amount equal to 22% of the employee or Practitioner’s gross annual salary or billings. This amount will be a debt due and payable to SHP on and from the time the employee or Practitioner accepts the Client’s offer.
11. GENERAL
11.1. Confidentiality
Each party must:
11.1.1. keep any Confidential Information in respect of the other party secret and confidential, except to the extent that the party is required by law or a recognised stock exchange to disclose;
11.1.2. take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information in respect of the other party; and
11.1.3. subject to clause 11.1.1, not disclose Confidential Information in respect of the other party to any third party without first obtaining the written consent of the other party.
11.2. No partnership
Nothing in this Agreement will be interpreted to constitute a relationship between the parties or their representatives as partners, joint operators or as employer/employee.
11.3. Consequential loss
Neither party will be liable to the other for loss of profits or any other indirect or consequential loss arising in connection with this Agreement.
11.4. Governing Law & Jurisdiction
The Agreement is governed by the laws of Western Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
11.5. Changes to terms and conditions
SHP may to amend these terms and conditions by publishing an amended version of them on its website. The Client’s continued acceptance of Services will constitute acceptance of such changes.
11.6. Variations
Subject to clause 11.5, this Agreement can only be varied by written agreement between the parties.
11.7. Assignment
The Client may not assign, novate, sub-licence or charge any of its rights or obligations under this Agreement without the prior written consent of SHP.
11.8. Costs and Expenses
Each party must pay its own costs and expenses relating to the preparation and execution of this Agreement.
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