Terms & Conditions

1. DEFINITIONS

In this document:
“Accounts” means all accounts for Services issued by OpentraX to the Client.
“Agreement” means the agreement between OpentraX and the Client, constituted by these terms and conditions and other written forms of agreement between the parties including, but not limited to, a completed Formal Instrument of Agreement and its annexures. In the event of inconsistency with these terms, other written and signed agreements between the parties will prevail.
“Commencement Date” means, unless otherwise agreed in writing, the date on which OpentraX the Services are first provided under the Agreement.
“Client” means each client of OpentraX that receives Services, unless otherwise specifically agreed in writing by OpentraX.
“Fixed Term” means an Agreement which OpentraX and the Client agree in writing is for a fixed period of time from the Commencement Date.
“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, pandemics, change in any law or regulation, disruption or interruption to the supply of communications, internet, power or other utility.
“OpentraX” means OPENTRAX PTY LTD (ACN 6654 008 296) (ABN 726 540 08 296).
“OpentraX Services” means the services provided directly to the Client by OpentraX.
“Client Records” means the records of clients that receive services under the arrangements described in the Agreement.
“Service Levels” means the agreed levels at which OpentraX will provide the Services as described in the Formal Instrument of Agreement or its annexures.
“Services” means the OpentraX Allied Health Services, Corporate Health Services and Injury Rehabilitation Services.
“Services Fee” means the fees described in clause 4.1.
“Term” means the term of the Agreement, commencing on the Commencement Date and terminating on the earlier of the date agreed in writing between the parties or the Termination Date.
“Termination Date” means the date on which the Agreement is terminated pursuant to the terms of the Agreement.

2. TERM

2.1 Term

The Agreement starts on the Commencement Date and continues for the Term. Where a Fixed Term Agreement extends beyond the defined Fixed Term, the agreement shall be between the Client and OpentraX.

3. SERVICES

3.1 Provision

OpentraX will directly provide OpentraX Services to the Client and shall facilitate the provision of Injury Rehabilitation, NDIS, Performance Enhancement, Chronic Disease Management, Life Coaching, Bariatric Specific, Personal Training and other Services to the Client on the terms set out in the Agreement.

3.2 Standard

Subject to the Agreement, the Services will be provided in accordance with the Service Levels, unless they are unable to be provided as a direct or indirect result of an act or omission of the Client, its employees or contracted third parties or as a result of a breach by the Client of the Agreement, in which case OpentraX will use their best endeavours to provide the Services allowing for such act or omission.

3.3 Scope of Services

The parties agree that the Services set out in the Agreement reflect the entirety of the Services to be provided under the Agreement. Any further services requested by the Client shall be provided on such further terms (including in relation to cost) as may be agreed between the parties at the time.

4. FEES

4.1 Services Fees

1. OpentraX Services: Where OpentraX provides the OpentraX Services, the Client shall pay to OpentraX the Services Fees. Unless otherwise agreed in writing, OpentraX will charge the Client its standard, published rates for the provision of each Service provided. Unless otherwise stated, the Services Fees are exclusive of GST.

4.2 Payment Terms

OpentraX shall issue the Client with a valid tax invoice for Services provided during the relevant period. The Client must pay OpentraX’s invoices within 30 days of receipt.

5. CANCELLATIONS & RESCHEDULES

5.1 Cancellations

As per the NDIS Price Guide:

“Short Notice Cancellations
Where a provider has a Short Notice Cancellation (or no show), they are able to claim 100% of the agreed fee associated with the activity from the participant’s plan, subject to the NDIS Pricing Arrangements and Price Limits and the terms of the service agreement with the participant.
A cancellation is a short notice cancellation if the participant:

• • Does not show up for a scheduled support within a reasonable time, or is not present at the agreed place and within a reasonable time when the provider is travelling to deliver the support; or
• • Has given less than seven (7) clear days’ notice for a support.

For supports delivered to a group of participants, if a participant cancels their attendance and if the provider is unable find another participant to attend the group session in their place then, if the other requirements for a short notice cancellation are met, the provider is permitted to bill the participant who has made the short notice cancellation at the previously agreed rate that they would have billed if the participant had attended the group. All other participants in the group should also be billed as though all participants had attended the group.

Providers can only claim from a participant’s plan for a Short Notice Cancellation of the delivery of a support item to the participant if all of the following conditions are met:

• • The NDIS Pricing Arrangements and Price Limits indicates that providers can claim for Short Notice Cancellations in respect of that support item; and
• • The proposed charges for the activities comply with the NDIS Pricing Arrangements and Price Limits; and
• • The provider has the agreement of the participant in advance (that is, the service agreement between the participant and provider should specify that Short Notice Cancellations can be claimed); and
• • The provider was not able to find alternative billable work for the relevant worker and are required to pay the worker for the time that would have been spent providing the support.

Claims for a short notice cancellation should be made using the same support item as would have been used if the support had been delivered, using the “Cancellation” option in the myplace portal.

There is no hard limit on the number of short notice cancellations (or no shows) for which a provider can claim in respect of a participant. However, providers have a duty of care to their participants and if a participant has an unusual number of cancellations, then the provider should seek to understand why they are occurring. The NDIA will monitor claims for cancellations and may contact providers who have a participant with an unusual number of cancellations.

5.2 Rescheduled Services

In the event that a Client informs OpentraX with less notice than the prescribed Cancellation Notice Period set out in the table in Schedule 1, before the Service Date that a Service that was otherwise to be provided on a Service Date must be rescheduled, then OpentraX shall charge the Client cancellation fees to the Client based on the table set out in Schedule 1.

6. CLINICAL MATTERS

6.1 Client Records

Title to all Client Records vests on creation with OpentraX which created the record.

7. FORCE MAJEURE

1. 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.
2. The party affected by a Force Majeure Event shall notify the other party as soon as practicable of any anticipated delay due to a Force Majeure Event.
3. The performance of the affected party’s obligations under this document will be suspended for the period of the delay due to the Force Majeure Event and any OpentraX agreement will be extended by such period.

8. TERMINATION

8.1 Immediate termination by OpentraX

OpentraX may either suspend or immediately terminate the Agreement on the happening of any of the following events by giving notice in writing to the Client:

1. the Client commits any breach of any provision of the Agreement and the Client has failed to remedy that breach within 21 days of receiving a notice in writing from OpentraX identifying the breach and requesting that the breach be remedied; or
2. the Client commits an act of bankruptcy or compounds with its creditors.

8.2 Flexible termination

Where the agreement is for a Flexible Term, the agreement may be terminated at any time by either party giving written notice to the other party without cause, in which event the Agreement shall terminate 30 days after the date of receipt of the notice by the other party.

8.3 No compensation

If a party terminates the Agreement, neither party shall be entitled to any compensation or damages from the other party arising from such termination.

8.4 Survival of provisions

The termination of the Agreement does not affect such of the provisions of the Agreement as are expressed to operate or have effect after that time and is without prejudice to any rights of action already accrued to either party in respect of any breach of the Agreement by the other party.

9. RECRUITMENT SUPPLY AND NO POACHING

Each party must:

1. The Client agrees that it will not, without OpentraX’s prior written consent (which may be refused in its absolute discretion) directly or indirectly solicit, employ or engage any OpentraX staff for services outside of the business for a period of 6 months from the date of termination of the Agreement.

10. GENERAL

10.1 CONFIDENTIALITY

Each party must:

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 on which its shares or the shares of any of its related corporations are listed to disclose it;
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
3. not disclose Confidential Information in respect of the other party to any third party without first obtaining the written consent of the other party.

10.2 No partnership

Nothing in the Agreement constitutes the parties as partners or in an employer/employee relationship.

10.3 Consequential loss

OpentraX will not be liable to the client for loss of profits or any other indirect or consequential loss arising from the provision of the Services or from any breach of this document.

10.4 Governing Law & Jurisdiction

1. The Agreement is governed by the laws of the Queensland, Australia.
2. Each of the parties irrevocably submits to the non‑exclusive jurisdiction of the courts of Queensland, Australia.

10.5 Changes to Standard Terms and Conditions

Where the Agreement is for a Flexible Term, OpentraX shall be titled to amend these terms and conditions by publishing an amended version of the terms and conditions and notifying the Client. The continued use by the Client of OpentraX’s services will constitute acceptance of such changes.

10.6 Changes to commercial arrangements

Changes to the agreed commercial terms (excluding these terms and conditions) can only be amended by written agreement between both parties.

10.7 Assignment

1. The Client may not assign or novate any of their rights or obligations under the Agreement without the prior written consent of OpentraX, which consent may not be unreasonably withheld.
2. OpentraX may not assign, charge, novate or deal with any of its rights and obligations under the Agreement, without the prior written consent of the Client, which consent may not be unreasonably withheld.

10.8 Stamp Duty

The parties shall be equally liable for all stamp duty (including penalties) payable where applicable in respect of the Agreement and any document executed under the Agreement.

10.9 Costs and Expenses

Each party must pay its own costs and expenses in respect of the preparation and execution of the Agreement.

SCHEDULE 1