Member Services Agreement

This member services agreement

is made on the Commencement Date between the following parties:


1.	Kestral Computing Pty Ltd ABN 26 009 376 069 of Suite 8a, 17 Burgundy Street, Heidelberg VIC 3084, Australia (Kestral)
2.	the Member the details of which are set out in the applicable Member Services Certificate (Member)

Recitals


A.	The Member has entered into an agreement with Kestral by which Kestral has licensed the Member the right to use software owned by Kestral.
B.	To enhance the Member's benefit from such software license, the Member wishes to acquire, and Kestral wishes to supply, certain Member Services, on the terms as set out in this agreement.

The parties agree

in consideration of, among other things, the mutual promises contained in this agreement:

Definitions and interpretation

1.1

Definitions

In this agreement:

Additional Member Consulting Services means services, other than Member Services, requested by the Member in accordance with the procedure set out in clause 9;

Back Fee Rate means the monthly fee, as specified on the Download Website from time to time, payable by a Member in respect of any period of time for which the Member has not held a fully paid subscription for Member Services, and for which the Member has also not previously paid Back Fees;

Commencement Date means the date on which Kestral emails the Member Services Certificate to the Member, as recorded in Kestral's computer systems;

Download Website means the website accessible at www.hl7connect.com or as otherwise determined by Kestral from time to time;

GST includes any replacement or subsequent similar tax;

Licensee means a licensee of the Licensed Software;

License Agreement means a software license agreement entered into between Kestral and the Member, under which the Member licenses, for a term of greater than 5 years, the Kestral software known as HL7Connect;

Licensed Software means the software licensed under the License Agreement;

Loss means any damage, loss, claim, liability, cost, expense, outgoing, or payment (whether direct, indirect, consequential or incidental);

Member Consulting Rate means the hourly consulting fee for Additional Member Consulting Services, as specified on the Download Website from time to time;

Member Services means those services set out in section 8;

Member Services Certificate means the document entitled "Kestral Member Services Certificate" provided by Kestral to the Member which forms part of this agreement;

Member Services Fee means the fee which must be paid in cleared funds to Kestral for the provision of Member Services, the amount of which is set out in the Member Services Certificate; and

Term means the time period set out in the Member Services Certificate.

1.2

Interpretation

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


(a)	the singular includes the plural and vice versa;
(b)	a reference to any thing (including, but not limited to, any right) includes a part of that thing; and
(c)	a reference to a person includes a body corporate and any other legally recognised entity.

Term


	This agreement commences on the Commencement Date and, unless terminated earlier in accordance with this agreement, ends on the expiry of the Term.

Application for Member Services

(a)

A Licensee may request Kestral, via the Download Website, to provide the Licensee with the Member Services.

(b)

In order to be eligible to receive the Member Services, the Licensee must hold a License Agreement which:


(1)	is current and fully paid; and
(2)	has a license term of at least 5 years;

and Kestral must agree to provide the Member Services to the Licensee and communicate that agreement to the Licensee.

(c)

Provided all of the conditions in clause 3(b) are fulfilled, the Licensee becomes a Member for the purposes of this agreement and, subject to clause 4, is entitled to receive the Member Services.

Fees

4.1

Payment

The Member must pay the Member Services Fee to Kestral in clear funds before Kestral will provide the Member with the Member Services.

4.2

Back Payments

In addition to the fees set out in clause 4.1, if:


(a)	a prior Term of this Agreement has lapsed without renewal by its expiry date; or
(b)	the Member does not subscribe to Member Services on the date of purchase of the Licensed Software,

then on the Commencement Date the Member must pay Kestral additional fees at the Back Fee Rate for each complete calendar month since the later of:


(a)	the lapse of the prior Member Services Agreement; or
(b)	the commencement date of the License Agreement,

plus one additional calendar month,

before Kestral will provide the Member Services to the Member.

4.3

Responsibility for taxes

If GST is or will be imposed on a supply made under or in connection with this agreement, the supplier may, to the extent that the consideration otherwise provided for that supply under this agreement is not stated to already include an amount in respect of GST on the supply:


(a)	increase the consideration otherwise provided for that supply under this agreement by the amount of that GST; or
(b)	otherwise recover from the recipient the amount of that GST.

4.4

Tax indemnity

If Kestral incurs any penalty or interest under the GST legislation because a supply under this agreement has been treated by the parties as GST-free, the Member shall bear the cost of the penalties and interest.

Warranties


5.1	Warranties by Member
	The Member represents and warrants to Kestral that it has full power and authority to enter into, perform and observe its obligations under this agreement, and that its obligations under this agreement are valid, binding and enforceable.
5.2	Warranties by Kestral
	Except as set out in this agreement, Kestral makes no warranties to any person or entity with respect to the services to be provided under this agreement, and, to the extent permitted by law, disclaims all implied warranties, including without limitation warranties of merchantability and fitness for a particular purpose.

Limitation of liability


6.1	Limitation of liability
	Subject to clause 6.2 and any responsibilities implied by law which can not be excluded, Kestral, and its directors, employees, agents and contractors, are not liable to the Member or any other person for any Loss whatsoever, whether direct, indirect, special or consequential, arising under this agreement or as a result of the use by the Member of the Member Services or Additional Member Consulting Services, howsoever caused, whether in contract, tort including negligence, statute or otherwise.
6.2	Restriction of liability
	Where any term or condition imposing liability is implied through the operation of any law, and that term or condition cannot be excluded, Kestral's liability under that term or condition is limited to the resupply of the services provided, or the cost of having those services resupplied, at Kestral's election.
6.3	Liability cap
	If Kestral is held or found to be liable to the Member for any matter relating to or arising in connection with this agreement, whether based on an action or claim in contract, negligence, tort or otherwise, the amount of damages recoverable from Kestral for all acts or omissions will not exceed in the aggregate an amount equal to the amounts paid to Kestral by the Member under this agreement in the 12 months preceding the date the liability arose.

Indemnities

The Member indemnifies Kestral and its employees, agents and contractors against any Loss suffered or incurred arising out of or referable to any injury to or death of a person, or damage to real or personal property of Kestral or a third party, caused or contributed to by the Member or any representative of the Member, except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of Kestral.

Services Provided

8.1

Support requests

Kestral shall provide a facility on the Download Website that enables the Member to register requests for basic technical support relating to the installation or use of the Licensed Software via email.

Kestral will either, via return email:


(a)	provide the Member with a response to the question; or
(b)	notify the Member that it is not practical or possible for Kestral to respond to the question by email or because Kestral reasonably believes it may take longer than one half hour to formulate the reply,

provided the Member provides Kestral with a valid email address when lodging the question.

8.2

Email List

(a)

Kestral shall host one or more email list services on the Download Website (Email List) that the Member may elect to subscribe to. This facility will allow the user to post messages relating to the Licensed Software to an Email List which other subscribed Members may see and respond to, provided they have also elected to subscribe to the same Email List.

(b)

The Member must read and understand the Privacy Statement provided on the Download Website, and take full responsibility for any consequences of using the Email List facility.

(c)

The Member must not post to the Email List material which is:


(i)	defamatory, obscene or inappropriate for any reason;
(ii)	breach any laws, including, but not limited to, the Trade Practices Act (Cth) 1974; or
(iii)	infringe the intellectual property rights of a third person.

(d)

Whilst under no obligation to do so, Kestral retains the right to review, edit and remove any information or material placed on an Email List at any time and without notice.

8.3

Email List Archives

Kestral shall provide a facility to archive correspondence previously submitted to Email Lists, according to management policies that are entirely at Kestral's own discretion. Kestral will provide a facility, the functionality of which shall be determined by Kestral in its sole discretion, for Members to review correspondence that has been archived.

8.4

Member Details

Kestral shall provide a facility on the Download Website that enables the Member to view information about their current subscription, including the expiry date.

8.5

Bug Reports

Kestral shall maintain a list of suspected program errors that it determines in its absolute discretion are sufficiently significant to be included in the list. The list may contain notifications of program errors that either have, or have not been fixed in any given release of the Licensed Software. Kestral shall also provide a facility on the Download Website that enables the Member to record a new suspected program error in the Licensed Software.

8.6

Feature Requests

Kestral shall provide a facility on the Download Website that enables the Member to record a request for a desired new program feature to be included in a future release of the Licensed Software. Kestral does not undertake to implement any such request.

8.7

HL7Connect Upgrades

During the Term of this agreement, the Member Services Certificate shall entitle the Member to upgrade their version of Licensed Software to a later release of the Licensed Software which may be issued by Kestral. It is the Member's responsibility to download such later release of the Licensed Software from the Download Website. Kestral does not represent or warrant that it will produce any further releases of the Licensed Software.

Additional Consulting Services

(a)

A Member may request Kestral to provide Additional Member Consulting Services. The Member must provide Kestral with a full specification and all required details of any such request.

(b)

Kestral, in its sole discretion, will determine whether or not to provide the requested Additional Member Consulting Services to the Member.

(c)

If Kestral agrees to provide the Additional Member Consulting Services to the Member, then the Member must pay Kestral:


(1)	on an hourly basis for each Kestral employee or contractor involved in providing the Additional Member Consulting Services at the then current Member Consulting Rate; and
(2)	all reasonable costs of all materials required by Kestral in its reasonable judgement to provide the Additional Member Consulting Services, including, without limitation, all communication and administrative costs.

(d)

The Member must pay Kestral for Additional Member Consulting Services according to the payment timetable specified by Kestral at the time Kestral agrees to provide the Additional Member Consulting Services.

Termination

10.1

Termination by Kestral


(a)	Kestral may terminate this agreement immediately by giving written notice to the Member if the Member breaches clauses 3 or 4 of this agreement and does not remedy that breach within 7 days of notice by Kestral to do so.
(b)	Kestral may immediately terminate this agreement if the License Agreement between Kestral and the Member expires or is terminated for any reason.

10.2

Events following termination

On termination or expiry of this agreement:


(a)	the Member is not entitled to any return or refund of the Member Services Fee; and
(b)	the Member must pay to Kestral any outstanding amounts due under this agreement.

Notices

(a)

A notice from one party to the other must be sent to:


(1)	in the case of Kestral, the address detailed above, or as otherwise notified from time to time; or
(2)	in the case of the Member, the address provided by the Member to Kestral and included on the Member Services Certificate, or as otherwise notified from time to time.

(b)

A notice takes effect from the time it is received unless a later time is specified in it.

(c)

A notice is taken to be received:


(1)	in the case of a posted letter, on the second (seventh, if posted to or from a place outside Australia) day after posting;
(2)	in the case of facsimile, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the recipient’s facsimile number;
(3)	in the case of email, at the time the sender receives a return receipt confirming delivery of the email. If the sender does not receive a return receipt within 48 hours of sending the email then the sender must use a method set out in clauses 11(c)(1) or 11(c)(2) to confirm delivery of the notice.

General

12.1

Prohibition and enforceability


(a)	Any provision of, or the application of any provision of, this agreement and any transaction contemplated by it which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b)	Any provision of, or the application of any provision of, this agreement and any transaction contemplated by it which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

12.2

Severance


(a)	If a provision of this agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder for the purposes of enforcement in that jurisdiction.
(b)	The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
(c)	This clause 12.2 has no effect if the severance alters the basic nature of this agreement.

12.3

Amendment

A provision of, or a right under, this agreement may not be varied, supplemented or replaced except in writing executed by both parties.

12.4

Waivers


(a)	A provision of, or a right created under, this agreement may not be waived except in writing executed by the party granting the waiver.
(b)	A failure by a party to insist on strict performance of any of the terms of this agreement is not to be deemed a waiver of any subsequent breach or default of the terms of this agreement.

12.5

Exercise of rights


(a)	Except as expressly provided to the contrary in this agreement, a party mayexercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.
(b)	A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that, or of any other, right, power or remedy.
(c)	Failure by a party to exercise, or a delay in exercising, a right, power or remedy does not prevent its exercise.

12.6

Entire agreement

This agreement supersedes all previous agreements in respect of its subject matter and contains the entire agreement between the parties.

12.7

Governing law

This agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, and courts of appeal from them, for determining any dispute concerning this agreement.

12.8

Assignment


(a)	The Member may not assign its rights under this agreement without Kestral’s prior written consent, which Kestral may give or withhold in its sole discretion.
(b)	Kestral may assign any of its rights under this agreement without the Member’s prior written consent.

12.9

Survival

Clauses 5, 6, 7 and 10.2 impose continuing obligations on the relevant parties and survive termination or expiry of this agreement.

12.10

Version

This is version 1.01-001 of the HL7Connect Member Services Agreement, current as of 4 October, 2001 at 4:00 pm Australian Eastern Standard time.