Service Licence Agreement

Service Licence Agreement

By installing, downloading, accessing or otherwise using Direct CONTROL or any Update of Direct CONTROL you agree to be bound by this Agreement. If you DO NOT agree to the terms of this Agreement DO NOT install or use Direct CONTROL or any Upgrade or supplement to Direct CONTROL.

Once Direct CONTROL has been installed, any person subsequently opening or using Direct CONTROL will be deemed to be a Client and be subject to the terms and conditions of this Licence Agreement.

CONNECT DIRECT Pty Ltd with ABN 98 121 700 605 (referred to in this Agreement as CONNECT DIRECT) provides the software program of which this Agreement forms part and all printed and electronic documentation, including any media, and instructional and operational manuals covering their use together with Updates (referred to in this Agreement as Direct CONTROL), on the terms set out in this Agreement. The Client assumes responsibility for the selection of Direct CONTROL to achieve its intended results and for the installation and use of, and results from, Direct CONTROL.

If you are 'hosting' Direct CONTROL on a Virtual Private Server overseen by CONNECT DIRECT Pty Ltd, please ensure you agree with the Hosting Terms and Conditions before proceeding.

1.   Licence

CONNECT DIRECT grants to Client, and Client accepts, a non-transferable and non-exclusive licence to use Direct CONTROL, subject to the following conditions:

  1. Use is restricted to the number of Entities specified in the Documentation and for the purposes of the Client's Business only;
  2. Client cannot grant sub-licences of Direct CONTROL;
  3. Client has no right to adapt, modify, disassemble or reverse engineer Direct CONTROL nor may Client make any copies of Direct CONTROL, other than for backup purposes or in accordance with the terms of the Escrow Agreement; and
  4. CONNECT DIRECT has received payment in full of the Licence and Support Fee and any Training Costs or other costs (eg: travel and accommodation if relevant or any other services/products provided).
2.   Support Services

Provided Client complies with its obligations under this Agreement, and subject to clauses 2.4 and 6, CONNECT DIRECT agrees to provide the Support Services for the Support Period upon payment of the Support Services Fee.

2.1 Availability of Support
  1. Support Services will be provided by CONNECT DIRECT during the hours published by CONNECT DIRECT from time to time as the Support Services Hours for Direct CONTROL. Details at www.directcontrol.com.au
  2. CONNECT DIRECT may provide emergency Support Services outside the hours published at its sole discretion. Such emergency Support Services may require Client to pay an additional charge to CONNECT DIRECT.
2.2 Provision of Support

Where CONNECT DIRECT is required to provide Support Services to Client, these services will, at the sole option of CONNECT DIRECT, take the form of either telephone advice or error correction by means of remote connection in accordance with CONNECT DIRECT's current procedures governing the performance of such services.

2.3 Client's Obligations in relation to the Support Services
  1. Where Client requests Support Services involving alleged errors or defects in Direct CONTROL, Client must provide to CONNECT DIRECT a documented example of the alleged error or defect;
  2. Client will, if requested by CONNECT DIRECT, provide to CONNECT DIRECT a listing of output and access to any other data CONNECT DIRECT reasonably requires in order to reproduce operating conditions similar to those existing when any alleged error or defect in Direct CONTROL was discovered by Client.
2.4 Exclusions

For the avoidance of doubt, the Support Services do not include:

  1. installation of Direct CONTROL;
  2. correction of errors or defects caused by Clients' operation of Direct CONTROL in a manner other than as authorised by CONNECT DIRECT;
  3. correction of errors or defects caused by modification, revision, variation, translation or alteration of Direct CONTROL not authorised by CONNECT DIRECT;
  4. correction of errors or defects caused by the use of Direct CONTROL by a person not authorised by CONNECT DIRECT;
  5. correction of errors caused in whole or part by the use of software other than Direct CONTROL;
  6. correction of errors which, in the opinion of CONNECT DIRECT, were caused by the failure of Client to provide suitably qualified and adequately trained staff to operate Direct CONTROL;
  7. training of Client's staff;
  8. rectification of operator errors;
  9. rectification of errors arising from faults in the computer hardware on which Direct CONTROL is running or any device connected to that computer hardware;
  10. maintenance of Client's computer network unless a Premium Support Agreement has been entered into;
  11. correction of errors arising directly or indirectly out of Client's failure to comply with this Agreement or any other agreement between Client and CONNECT DIRECT.
  12. Change in Client’s circumstances requiring the re-installation of CONNECT DIRECT supplied software, examples of such events are:
    1. Purchase of a new computer
    2. Rebuilding of an existing computer
    3. Infection of an existing computer by a Computer Virus
    4. Removal of CONNECT DIRECT software through the actions of the Client or other non-authorised party.
    5. Change in the Client’s circumstances requiring a change in customised reports and templates.
2.5 Fee Updates

Included in Annual Support are regular fee updates for Medicare, DVA, Work Cover and Health Funds. It is however the sole responsibility of the Client to ensure that all fees being invoiced are correct.

The Client acknowledges that Direct Control is reliant upon third parties to provide it with information regarding fees and any changes thereto and Direct Control makes no representation or warranty as to the timing or accuracy of the information provided to it by such third parties.

The above notwithstanding, Direct Control will use its best endeavours to ensure that fee schedules are accurate and up to date in accordance with the information provided to Direct Control.  Further, Direct Control will use its best endeavours to implement any fee changes and update the Software (as necessary) as soon as practical upon Direct Control becoming aware of any change in fees.

2.6 Initial Client Training

At the time of installation the client agrees to pay an agreed minimum training fee. Travel and Accommodation cost may also apply.

The client agrees that Direct CONTROL may invoice for support services provided (on request) which constitute any exclusions documented in part 2.4.

3.   Application Updates

Provided Client complies with its obligations under this Agreement, and subject to clause 6, CONNECT DIRECT agrees to provide to the Client during the Support Period any Updates of Direct CONTROL published by CONNECT DIRECT from time to time, subject to the following conditions:

  1. Apart from updates where required to comply with revisions to the fee schedules, CONNECT DIRECT does not warrant that any updates of Direct CONTROL will in fact be released during the Support Period.
  2. CONNECT DIRECT's obligations to provide updates relate only to Direct CONTROL, and not to any hardware or third party software used in conjunction with Direct CONTROL, nor to the extent Direct CONTROL has been modified by Client.
4.   Intellectual Property Rights and Non-Disclosure
4.1 Title to Direct CONTROL

All intellectual property rights and other proprietary rights in or related to Direct CONTROL are and remain CONNECT DIRECT's exclusive property, whether or not specifically recognised or perfected under local applicable law and Client must not do anything that infringes CONNECT DIRECT's proprietary rights. Subject to the licence set out above, no licence, right or interest in any of CONNECT DIRECT's trademarks, service marks or trade names is granted to Client under this Agreement. Client agrees that CONNECT DIRECT retains title to any modifications to Direct CONTROL made by CONNECT DIRECT at the request of Client and that CONNECT DIRECT may provide such modifications to its other customers.

4.2 Copyright and Trademarks

Client agrees not to remove, deface or destroy any copyright notice, patent notice, trademark, service mark, other proprietary markings or confidential legends placed on or within Direct CONTROL.

4.3 Non-Disclosure

Client acknowledges that Direct CONTROL is confidential in nature and constitutes a trade secret belonging to CONNECT DIRECT. Client agrees to hold it in trust and not to sell, rent, licence, distribute, transfer, or, directly or indirectly, disclose or permit the sale, rental, licensing, distribution, transfer or disclosure of Direct CONTROL or its contents to any other party at any time. Client agrees that any disclosure of Direct CONTROL to a third party in contravention of this clause constitutes a material breach of this Agreement, and that in such a case, the licence granted by this Agreement terminates and Client shall be strictly liable for all loss or damage to CONNECT DIRECT that result from such disclosure.

5.   Client's Obligations
5.1 Payment of Licence and other fees

In consideration for the licence granted to Client under this Agreement, Client shall pay CONNECT DIRECT the Licence and Support Fees as specified in the Documentation. Unless otherwise specified in the Documentation the Licence and Support Fees do not include any freight or insurance, sales tax, customs duty, consumption tax, goods and services tax, value added tax or similar tax, or any additional fees and charges incurred for collection of debt, all of which the Client must pay in addition to the Licence and Support Fee if assessed on Direct CONTROL or its use.

CONNECT DIRECT may review and revise its Licence Fees and Support Fees at any time.

5.2 Other Obligations

  1. Client must provide all reasonable assistance to CONNECT DIRECT in performing its obligations under this Agreement (including the provision of the Support Services), including without limitation ensuring that CONNECT DIRECT's personnel are provided with all information, facilities, assistance and access (to premises and equipment) reasonably required to enable CONNECT DIRECT to comply with its obligations under this Agreement. In this respect Client acknowledges that if it does not provide CONNECT DIRECT with reliable and fast remote access to Client's network, CONNECT DIRECT will not be able to provide as extensive a range of Support Services as if remote access were available.
  2. Client shall be exclusively responsible for the supervision, management, and control of its use of Direct CONTROL, including, but not limited to:
    1. maintaining proper configuration of the equipment or devices on which Direct CONTROL is used;
    2. maintaining the integrity of the data and databases used with Direct CONTROL;
    3. Establishing adequate operating methods; and implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorised copying, modification, or disclosure of Direct CONTROL.
    4. Backing up the Direct CONTROL database
6.   Termination
6.1 Cause for Termination

Client will have committed an event of default, and this Agreement and the licence granted under it will terminate automatically and without further notice upon the occurrence of any of the following:

  1. Client attempts to or does use, copy, licence or convey Direct CONTROL in any manner contrary to the terms of this Agreement or in derogation of CONNECT DIRECT's Intellectual Property Rights;
  2. Client fails or neglects to perform or observe any of its existing or future obligations under this Agreement, including without limitation, the timely payment of any amounts due to CONNECT DIRECT; or
  3. Client becomes Insolvent or ceases to carry on business.

 

6.2 Effect of Termination

Client agrees that immediately upon an event described in clause 6.1, whether or not it receives notice of termination, it will immediately cease use of Direct CONTROL apart for historical purposes and certify that fact to CONNECT DIRECT. Client further agrees that in the event of termination through its default, all fees or charges due for the remaining term of this Agreement will immediately become due and payable. Upon termination of the licence granted under this Agreement, CONNECT DIRECT's obligations under this Agreement will cease.

7.   Warranties
7.1 Limited Software Warranty
  1. Subject to this Agreement, CONNECT DIRECT warrants that to the best of CONNECT DIRECTs knowledge and belief it has good title to Direct CONTROL and the right and authority to grant the licence in clause 1; and
  2. Subject to clause 8 and to the extent permitted by law CONNECT DIRECT does not warrant that:
    1. Direct CONTROL is error free or that all errors can or will be corrected; or
    2. use of Direct CONTROL will be uninterrupted; or
    3. Direct CONTROL will meet Client's particular requirements, whether known to CONNECT DIRECT or not; or
    4. Direct CONTROL will function correctly on the Client's particular computer equipment; or
    5. Direct CONTROL will provide any function not designated in the Software Documentation; or
    6. Direct CONTROL is of merchantable quality or fit for a particular purpose, whether known to CONNECT DIRECT or not.
7.2 Limited Software Warranty Remedy

CONNECT DIRECT's liability and Client's sole and exclusive remedy for any breach of the warranties in clause 7.1 is limited to the re-supply of Direct CONTROL, or at CONNECT DIRECT's option, a refund of the Licence Fee.

7.3 Other Warranties

Subject to clause 8, Client acknowledges that the only warranties in relation to any software apart from Direct CONTROL or the supplies thereof are those contained in the licence from the third party supplier of that software.

8.   Limitation of Liability
  1. In the event that this Agreement constitutes a supply of goods and services to a consumer as defined in the Trade Practices Act 1974 (Cth), or relevant State legislation (the "Acts") nothing contained in this Agreement excludes, restricts or modifies in relation to this Agreement and the goods and services to be supplied hereunder any condition, warranty, right or remedy which pursuant to the Acts is applicable or is conferred on the Client or any third party where to do so is unlawful.
  2. In the event of a breach by CONNECT DIRECT of a condition, warranty or right referred to in this clause, CONNECT DIRECT's liability for such breach shall be limited (except to the extent specifically set out in this Agreement) to:

(i) In the case of goods, at the option of CONNECT DIRECT:

I. The replacement of the goods or the supply of equivalent goods; or

II. Payment of the cost of replacing the goods or acquiring equivalent goods.

(ii) In the case of services:

I. The supplying of the services again; or

II. The payment of the cost of having the services supplied again.

  1. Subject to this clause, all conditions and warranties which would or might otherwise be implied in this Agreement are hereby excluded to the extent permitted by law.
  2. Other than as set out in this clause, under no circumstances will CONNECT DIRECT be liable for any loss, damage or injury (including without limitation any loss of profits, indirect, incidental or consequential loss, damage or injury) arising from the supply or use of Direct CONTROL, or any other applications or services supplied under this Agreement, any failure by CONNECT DIRECT to perform any obligation or observe any term of this Agreement or any loss of data suffered by the Client in connection with use of Direct CONTROL. Neither CONNECT DIRECT nor Client shall be liable in any circumstances whatsoever for any failure to perform any obligations to be performed by CONNECT DIRECT or Client where such failure is due to any cause beyond the reasonable control of CONNECT DIRECT or Client.
9.   General
9.1 Definitions

In this Agreement:

"Agreement" means this agreement, and incorporates where appropriate matters referred to in any Documentation;

"Application" means the software program of which this Agreement forms part in machine readable object code as well as any registration number or other means to access the program as provided by CONNECT DIRECT and where the context admits, includes Direct CONTROL Collateral and Updates to Direct CONTROL;

"Application Collateral" means all printed and electronic documentation, including any media, and instructional and operational manuals covering the use of Application and provided to Client by CONNECT DIRECT in connection with Direct CONTROL;

"Business Partner" means a Direct CONTROL Business Partner

"Consultant" means a Medical Practitioner associated with Client's medical practice;

"Documentation" means any quotation or other document or documentation (if any) provided by or on behalf of CONNECT DIRECT in conjunction with provision of Direct CONTROL specifying, but not limited to, any matter anticipated to be specified under this Agreement including one or more of: the Licence Fee and any other fees in respect of the Client's licensing of Direct CONTROL and the matters referred to in clauses 1 and 5.1 and;

"Insolvent" means, in relation to a party, that a liquidator, receiver, manager, receiver and manager, special investigator, administrator, statutory manager or similar person is appointed (whether by a Court or other persons) concerning any of the party's property, assets, business or affairs or the party assigns its property, assets, business or affairs for the benefit of its creditors;

"Intellectual Property Rights" in relation to Direct CONTROL includes, both in Australia and throughout the world, any copyright, trade or service mark, design, patent, semiconductor or circuit layout right, trade, business or company name, indication of source or appellation of origin, or other proprietary right, or any right to registration of such rights;

"Licence Fee" means the amount specified as such in the Documentation;

"Support Period" means the period commencing on installation of this software to end October each year and then only if the Support fee is prepaid each year from 1 November to 31 October.

"Support Services" means best endeavours to assist Client in the manner indicated in clause 2.2 during the Support Services Hours to resolve any problems experienced by Client in relation to use of Direct CONTROL;

"Support Services Fee" means the fee charged by CONNECT DIRECT from time to time for the provision of the Support Services;

"Support Services Hours" means the times Support Services for Direct CONTROL will be available as published by CONNECT DIRECT from time to time;

"Update" means any new release of or supplement to Direct CONTROL issued by CONNECT DIRECT and designed to correct errors identified in Direct CONTROL, comply with legislative requirements, reflect changes to Health Insurance Commission fee schedules, or add extra program features or functionality, but specifically excludes any new release of Direct CONTROL designated by CONNECT DIRECT as a new version.

9.2 Interpretation

In this agreement, headings and boldings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:

  1. words importing the singular include the plural and vice versa;
  2. words importing a gender include any gender;
  3. where a word or phrase is defined in this agreement, other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
  4. an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental agency;
  5. a reference to anything (including, but not limited to, any right) includes a part of that thing but nothing in this clause implies that performance of part of an obligation constitutes performance of the obligation;
  6. a reference to any statute includes all statutes varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and
    by-laws issued under that statute;
  7. a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
  8. a reference to a party to a document includes that party's successors and permitted assigns;
  9. no provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision;
  10. a reference to an agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing; and
  11. A reference to a document includes any agreement in writing, or any certificate, notice, instrument or
  12. other document of any kind.
9.3 Assignment of Agreement

Client shall not assign or otherwise transfer its rights under this Agreement, including the licence granted hereunder, or Direct CONTROL obtained pursuant to this Agreement without the prior written consent of CONNECT DIRECT. Any attempt to make such an assignment without CONNECT DIRECT's consent shall be void.

9.4 Nonwaiver

CONNECT DIRECT and Client agree that no failure to exercise, and no delay in exercising, any right, power, or privilege hereunder, on the part of either party shall operate as a waiver of any right, power, or privilege. CONNECT DIRECT and Client further agrees that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise.

9.5 Severability

If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not affect or nullify the remainder of this Agreement, and the effect shall be confined to the part immediately involved in the matter adjudged.

 

 

9.6 Governing Law

The laws of Queensland govern this Agreement, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.

9.7 Entire Agreement

Client acknowledges and agrees that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

9.8 Parties Bound

This Agreement shall be binding on and inure to the benefit of Client and CONNECT DIRECT and their respective successors and (to the extent specified in any assignment) assigns.

Should CONNECT DIRECT be acquired and it is the intention of the acquirer to move Clients off Direct CONTROL to another product. It will be guaranteed by the acquirer to do so at no charge to CONNECT DIRECT Clients.

9.9 Previous Licence Agreement

The Agreement supersedes any previous licence or support agreement between the Client and CONNECT DIRECT in relation to Direct CONTROL

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