SaaS Customer Agreement

Effective Date: 03rd October 2024

This SaaS Customer Agreement (“Agreement”) sets out the terms and conditions that apply to the provision by Good Methods Pty Ltd (ACN 664 796 310) (“GMG Australia”, “CareStack” “we” or “us”) of certain dental practice management services described in this Agreement and any related order form to You (“Customer” or “you”).

CareStack is a dental practice management system (“CareStack Platform”) made available to dental clinics, dental professionals and/or healthcare practitioners as a software-as-a-service application and service for their (and their end-users) sole and internal business use only. The terms and conditions of this Agreement apply to the CareStack Platform and all related Services (as more particularly defined below) made available to Customer for your use as a dental clinic, dental professional, healthcare practitioner and related.

1. CUSTOMER ACKNOWLEDGEMENTS

1.1 You acknowledge and agree that this Agreement establishes the contractual framework for the supply of the Services by CareStack to You. Where You require CareStack to provide Services, You confirm that You (or through your representative) will arrange to complete and sign an order form, for the specific category, type and volume of the Services required and submit the executed order form for processing by CareStack.

1.2 By submitting a properly executed order form to CareStack, you acknowledge and agree:

(a) the terms and conditions contained in this Agreement apply mutatis mutandis to the each and any Order Form executed under it;

(b) that you are duly authorized to enter into this Agreement and the Order Form including to negotiate any amendments or additions to either (and if you are a person who is an employee of a Customer, you have the consent to act on behalf of, and bind, your employer to so act);

(c) an executed Order Form duly submitted by Customer under these provisions is an offer to enter into an agreement with CareStack only for the services set out in that order form, and no contract or agreement for such services will be made or created between you and CareStack until such time as the submitted order form is executed by both parties;

(d) once accepted by CareStack, the submitted order form becomes the ‘Order Form’ and will form part of this Agreement, and any references to ‘Agreement’ will mean this Agreement including any Order Form, unless expressly stated otherwise (to the exclusion of any other terms or conditions that may be in place (if any)); and

(e) that you access and use the Services only in accordance with, as contemplated by, and subject to the provisions of this Agreement (and any Order Form), and that You may not access or use any of the Services unless you agree to comply with the terms and conditions of this Agreement (and any Order Form). Notwithstanding any other provision, your access or use of our Services constitutes your acceptance of this Agreement.

1.3 This Agreement may be amended by CareStack from time to time and we will post such changes on our Carestack website https://carestack.com/en-AU or other website that we own or operate. Where any changes are material or we consider, acting reasonably, the proposed changes are likely to materially impact your use of the Services, we may provide thirty (30) days’ notice to you prior to the changes taking effect through email or other means. If you do not agree to these amended terms, please do not continue to access the CareStack Platform or access or use the Services. You can cease all access and use at any time where you do not agree to or accept any amended terms or conditions.

1.4 Notwithstanding, to the maximum extent permitted by law, your continued use of the Services, including CareStack Platform, following the date the amended terms and/or conditions take effect constitutes your acceptance of such amended terms and conditions.

1.5 In the event of any conflict or inconsistency, the terms and conditions set out in this Agreement take precedence and will prevail over any inconsistent or conflicting terms or conditions set out in the Order Form.

2. LICENCES UPDATES & EXCLUSIONS

2.1 Subject always to the terms and conditions of this Agreement (including any limitations and restrictions set forth on an applicable Order Form), and to the payment of all applicable Fees, CareStack grants Customer a non-exclusive, non-transferable, non-sublicensable and revocable licence for the Term to access and use the Services (and all software comprising the Services, including the CareStack Platform) only for the internal business purposes of Customer relating to dental practice management. Customer must not allow any unauthorised person to access or use CareStack Platform or the Services at any time.

2.2 From time to time, and in line with usual market practice for SaaS providers, CareStack may provide upgrades, patches, enhancements, or fixes for the Services (including to modify, enhance or otherwise change the Services) to its customers generally without additional charge (“Updates”), but CareStack shall have no obligation under this Agreement (or otherwise) to provide any such Updates.

2.3 To the extent that any Updates under Clause 2.2 arise, such Updates will become part of the overall Services provided to you and the terms and conditions of Agreement (including any Order Form) will apply from the time the Update is released for use by CareStack to its customers generally.

2.4 Customer also acknowledges and agrees that, to the maximum extended permitted by law, for its legitimate business purposes, CareStack may cease supporting old versions or releases of the CareStack Platform or Services at any time. Notwithstanding, where any Update(s) which is not Emergency Maintenance constitutes a ‘Major Change’, being any update, change or cease of use (in whole or in part):

(a) to the Services that (in the opinion of CareStack, acting reasonably) is a material change to the Services provided to the Customer; or

(b) that may reasonably be considered to materially and detrimentally affect the Customer’s access to and use of the Services,

CareStack may (and will use reasonable endeavours to) provide reasonable notice (generally thirty (30) days prior) to the Customer; and

(c) where the Customer does not wish to accept the Major Change, Customer will have the right to terminate the Agreement (including the Order Form(s)) in its entirety on no less than on thirty (30) days’ written notice to CareStack prior to the date of release of the Major Change.

2.5 Customer acknowledges and agrees that the Services or components of the Services are delivered via web application(s) and are dependent upon web access for functionality. Accordingly, and without affecting any other limitation of liability set out in this Agreement, and to the maximum extent permitted by law, CareStack will not be liable (whether under the Service Levels or otherwise) to Customer in the event that Customer or any of your end-users cannot access the Services arising out of or as a result of any:

(a) Internet outages, performance degradations or unavailability attributable to third parties (e.g. telecommunications or internet service providers) which are beyond the control of CareStack;

(b) failure of a Customer’s (or users) systems, applications or IT environment; and/or

CareStack will take commercially reasonable steps to comply with the availability requirements under this Agreement.

3. PROFESSIONAL SERVICES

3.1 CareStack may, from time to time, offer professional services related to the Services including the CareStack Platform, which may include customisation, configuration, implementation, deployment, guided services, consultation, and/or training services related to the CareStack Platform (“Professional Services”).

3.2 Where specified in an Order Form and agreed by CareStack, and subject always to Clause 3.4 below, CareStack will provide Professional Services to Customer under the terms and conditions of this Agreement, subject to payment of all Fees set out in the Order Form and in accordance with Clause 6 (Fees) of this Agreement.

3.3 CareStack will notify Customer as soon as reasonably practicable if and/or where CareStack:

(a) are unable to provide the Professional Services (in whole or in part) as set out in the submitted order form and in such case, the submitted order form will not be accepted or executed by CareStack and will be of no further force or effect; and/or

(b) becomes aware that additional Professional Services will need to be provided in excess of the agreed scope of services set out under any executed Order Form for Professional Services under Clause 3.1 above.

3.4 Notwithstanding any notice provision under Clause 3.3 above, or any other terms or conditions under this Agreement, if and to the extent that CareStack:

(a) provides Professional Services in excess of any agreed-upon hours set out in an executed Order Form; or

(b) otherwise provides additional services beyond the Services set out in an executed Order Form,

(collectively, the Additional Services), to the extent permitted by law, the Fees for such Additional Services will be charged by CareStack, and Customer will pay CareStack, at CareStack’s then-current hourly rates, as notified by CareStack to Customer in writing for the provision of the Additional Services.

3B. SUBCONTRACTING

Notwithstanding any other provision of this Agreement, CareStack may, at it’s sole discretion, subcontract the performance of all or part of the Services, including but not limited to Professional Services, at any time to any contractor appointed by CareStack without the need for any prior notice or consent of Customer. CareStack will remain responsible for its compliance with the obligations under this Agreement and for any acts or omissions of the subcontractor that cause CareStack to breach any of CareStack’s obligations in the delivery of the Services under this Agreement. Customer provides general authorisation to CareStack’s use of subcontractors, wherever located, to provide handling or processing activities on Customer Data on behalf of Customer, as applicable in accordance with this Clause 3B (Subcontracting) and Clause 8 (Processing of Personal Data).

4. SUPPORT & MAINTENANCE SERVICES

4.1 Subject always to the Non-Excludable Rights, and to the terms and conditions of this Agreement including the payment of Fees, CareStack will provide support and maintenance services for the Services as more particularly described on the CareStack website or in the Order Form that CareStack generally provides to other customers in Australia (Support & Maintenance Services), without additional charges, unless otherwise stated in the Order Form.

4.2 CareStack will use commercially reasonable efforts to:

(a) make the Services available for access and use during the Term; and

(b) provide Support & Maintenance Services to meet industry standards applicable in Australia for services similar to the Services.

4.3 CareStack may, from time to time, be required to undertake scheduled maintenance of the CareStack Platform or any aspect of the Services, including to ensure the Services remain in good working order (“Scheduled Maintenance”). In this event, and subject always to Clause 4.4 (a) (Emergency Maintenance) below, CareStack:

(a) will use reasonable endeavours to provide Customer with notice of the times during which the Scheduled Maintenance will take place by publishing dates and/or times on the CareStack website or otherwise notifying customers (“Maintenance Window”); and

(b) may, without liability under this Agreement, need to restrict Customer’s access to or use of the Services during the Maintenance Window (or such reasonable additional period as is required by CareStack to complete the Scheduled Maintenance); and

(c) will take reasonable steps to procure that the Maintenance Window is conducted during time periods that minimise disruption of the Services to all customers and end-users (e.g. usual non-business hours in Australia).

4.4 Despite Clause 4.3 (Scheduled Maintenance) above, Customer acknowledges and agrees that:

(a) there may be times where it is necessary for CareStack to undertake maintenance activities without notice to Customer; for example, in order to remedy emergent failings in, or carry out urgent works on, the Services (“Emergency Maintenance”);

(b) CareStack may restrict Customer’s access to and use of the Services for the period during which CareStack must perform Emergency Maintenance; and

(c) CareStack will use reasonable endeavours to provide Customer with written notice where Emergency Maintenance is being undertaken which restricts Customer’s access to or use of the Services for a period longer than usual industry practice for rectification of works or maintenance services similar to the Emergency Maintenance.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 As between CareStack and Customer under this Agreement, CareStack retains all right, title, and interest in and to the Services, including the CareStack Platform and all software, products, works and content and is the owner (or licensor) of all Intellectual Property Rights (including moral rights) related thereto, including all Intellectual Property Rights created, used, licensed to or provided by CareStack for the purposes of providing Services under this Agreement, including any copies and derivative works of each of the foregoing (save for any Customer Data). Subject to Clause 5.2, nothing in this Agreement or any Order Form will operate to grant any right, title or licence in or to the Services (including the CareStack Platform) to Customer, except as expressly provided under this Agreement.

5.2 CareStack (or its licensors) grants Customer (and its end-users) a non-exclusive, non-transferable and revocable licence and right to access and use (but not to copy, modify, change or otherwise create any derivative works of) the Services, including to view content on the CareStack Platform, for its internal business purposes only, subject always to the terms and conditions of this Agreement.

5.3 Any software which is distributed or otherwise made available to Customer under this Agreement (including without limitation any software identified in an Order Form or embedded in any part of the CareStack Platform) shall be deemed a part of the Services and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted to Customer (or end-users) except as expressly provided in this Agreement.

5.4 THIRD PARTY-SERVICES

(a) Customer acknowledges and agrees that:

(i) the Services may incorporate or contain, or operate in or with, certain software, services, information, data and materials operated, provided or licensed by third parties (“Third-Party Services”);

(ii) to the maximum extent permitted by law, CareStack will facilitate or make available Third-Party Services to you on a pass-through (by third party providers (as principal(s) in their own right)) and “as received” basis only, and each third-party provider is and will remain responsible for the performance of its respective Third Party Services;

(iii) to the extent that you (and/or your end-users) access or use Third-Party Services, such access and use will be subject to additional terms and conditions set by the providers of Third Party Services (the “Third-Party Terms”) which do not form part of this Agreement (or any Order Form);

(iv) Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You are solely responsible for procuring any and all rights necessary for you to access Third-Party Services, and to the maximum extent permitted by law, if you decide to use any Third-Party Services, you access and use any Third-Party Service based on your own evaluation and at your own risk;

(v) To the maximum extent permitted by law, CareStack does not make any representations or warranties or provide any indemnification with respect to Third-Party Services. You will rely on and seek remedies solely from the original licensors or vendors of such Third-Party Services. Unless otherwise specified in the applicable Order Form, CareStack is not responsible for fulfilment of any third-party warranty or for problems attributable to the use or operations of Third-Party Services (including, but not limited to, the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services).

(f) CareStack cannot and does not guarantee that the Services shall incorporate (or continue to incorporate) any particular Third-Party Services; and

(g) when you use a Third-Party Service, Carestack’s Privacy Policy is no longer in effect. Your use of Third-Party Services, including those that have a link on Carestack’s website, is subject always to that Third-Party Services’ own terms of use and privacy policies.

5.5 Notwithstanding Clause 5.4, CareStack may provide certain Third-Party Services together with the Services as set forth in the applicable Order Form (“CareStack Provided TPS”), and if so set out in an Order Form, CareStack Provided TPS may only be used in conjunction with the Services. The terms and conditions applicable to Carestack Provided TPS will be set out in the applicable Order Form or otherwise provided to the Customer, on request.

5.6 CareStack may, from time to time, vary the CareStack Provided TPS incorporated into the Services:

(a) (to the maximum extent permitted by law), without notice to the Customer where that variation will not materially detriment Customer’s access to or use of the Services; or

(b) otherwise in accordance with the process for managing material updates or changes in the CareStack Provided TPS as if it were a Major Change for the purposes of, and under the provisions of, Clause 2 (Licences Updates and Exclusions) of this Agreement.

5.7 For the purposes of Applicable Laws, Customer acknowledges and agrees that the provisions set out in this Clauses 5.4-5.6 are reasonably necessary to protect Carestack’s legitimate interests as:

(a) Carestack provides access to Third-Party Services on a pass-through basis as an additional benefit to Customer as part of the Services; and

(b) these clauses assist to distribute the risks fairly between Customer and Carestack.

5.7 (c ) CUSTOMER FEEDBACK.

Customer (and its end-users) may from time to time, but is not obliged to provide suggestions, comments or other feedback to CareStack with respect to the Services (“Feedback”). Any Feedback provided will be considered as non-confidential information by Carestack and Customer represents and warrants that such Feedback will not breach this Agreement, any of CareStack policies (as notified from time to time), including its Privacy Policy, or any Applicable Laws. To the maximum extent permitted by law, Customer shall, and hereby does, irrevocably assign to CareStack all right, title, and interest in and to the Feedback including to commercially exploit the Feedback for any lawful and authorised purpose, without restriction (save that Feedback will not include personal information). Customer further agrees to provide CareStack any assistance we require to document, perfect, and maintain our rights in the Feedback.

5.8 NON-EXCLUSIVITY

(a) To the extent permitted by Applicable Laws, nothing in this Agreement will impair CareStack’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

6. FEES & PAYMENT TERMS

6.1 Notwithstanding any other provision of this Agreement, Customer will pay CareStack the fees for the Services, as set out in an applicable Order Form (“Fees”). The Fees are inclusive of all charges for the Services provided under this Agreement.

6.2 Unless otherwise specified in an Order Form, CareStack will invoice Customer for the Fees monthly in arrears. All invoices issued under this Agreement are payable (in the currency referenced in the Order Form) within no later than ten (10) days from date of issue of the invoice. You will make payment of the Fees in line with the payment method disclosed to and agreed by Carestack as the Payment Method for the purposes of this Agreement. It is your responsibility to ensure that:

(a) the Payment Method (including all details provided to CareStack) are and remain true, accurate, complete and up-to-date at all times;

(b) sufficient funds are available via the Payment Method to discharge all amounts due and payable under this Agreement, and

(c) any changes to the Payment Method are notified to CareStack in writing at least thirty (30) Business Days prior to the date of issue of any subsequent monthly invoice for Fees.

6.3 Subject to the following Clause 6.4 (Disputed Amount(s)), we may elect that any outstanding invoices that are overdue by more than thirty (30) days are subject to interest on any outstanding balance of a rate of one per-cent (1%) per month (or the highest rate permitted by Applicable Law, if less).

6.4 If the Customer, acting reasonably, raises a good faith dispute in respect of all or part of any invoice provided by CareStack, it must provide full details to CareStack of the disputed amount(s) to support its reasons for the dispute in good time prior to the due date for payment of the applicable invoice. The parties will seek to resolve the dispute in accordance with Clause 17 (Dispute Resolution). Any disputed invoice does not reduce the Customer’s liability to pay any and all undisputed amounts in accordance with the terms and timelines of this Agreement (and any Order Form).

6.5 Subject to the application of the Non-Excludable Rights, all Fees paid are non-refundable and Fees paid and payable are not subject to any set-off, counter-claim, withholding or deduction of any kind.

6.6 CareStack and Customer agree that the Fees will increase each year, on reasonable notice to Customer, by the greater of: (i) the prevailing Consumer Price Index (CPI) rate; and (ii) such other reasonable percentage as specified and agreed between the parties under an Order Form. New fees and/or charges may also be added on reasonable prior written notice to Customer.

6.7 All Fees are exclusive of GST. Where applicable, GST and other taxes, duties or levies will be added to the Fees payable at the then prevailing rate.

7. USE RESTRICTIONS

7.1 Except as otherwise agreed by CareStack in writing, Customer warrants and undertakes that it shall not (and shall not permit any end-user or third party to, but will responsible to the extent they do regardless), directly or indirectly in relation to the Services (in whole or in part):

(a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services, including of the CareStack Platform (except to the extent Applicable Laws specifically prohibit such restriction);

(b) modify, translate, or create derivative works based on the Services;

(d) use the Services for the benefit of a third party;

(e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof;

(f) use the Services to build an application or product that is competitive with any CareStack product or service;

(g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;

(h) bypass any measures CareStack may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or

(i) do any of the following (or any act or thing related or similar to the following):

(i) modify, disable, compromise the integrity or performance of the Services, CareStack Platform, or its related systems, network or data;

(ii) post any content in violation of any applicable laws; or that is obscene, unlawful, fraudulent, constitutes ‘fake’ or hallucinated information; harasses, exploits or harms any individual or infringes any individual, proprietary or personal rights of any kind or in any way;

(iii) any conduct of any kind that seeks to tamper, hack, probe, scan or otherwise access in an unauthorised way, or circumvent any security controls or authentication measures applicable to the Services or the CareStack Platform, or its related systems, network or data;

(iv) use any ‘robots’ ‘spiders’ or other automated, machine driven or AI-governed system, tool or application designed to place an unreasonable load on the Services, CareStack Platform, or its related systems, network or data; or

(v) consume an unreasonable amount of storage in a way that is unrelated to or unauthorised by the purposes for which the Services are provided or delivered to you.

7.2 Without limiting the above, Customer is and remains responsible at all times for all of its (and its end-users’) activity in connection with the Services, including but not limited to their access and use of the Services (even where such access or use was not authorised by Customer), the disclosure and sharing of Customer Data with CareStack and/or uploading of Customer Data to the CareStack Platform for the purposes of receipt of the Services.

7.3 Notwithstanding any other provision, Customer warrants and undertakes on a continuing basis that it, any end-user and any person acting on its behalf:

(a) shall access and use the Services at all times in compliance with all Applicable Laws (including all Privacy Laws); and

(b) shall not access or use the Services in any manner that violates the Intellectual Property Rights or contractual or other proprietary rights (including confidentiality and/or privacy) of any person.

8. CUSTOMER DATA; PROCESSING OF PERSONAL DATA

8.1 Customer shall retain all right, title and interest in and to the Customer Data, including all Intellectual Property Rights therein, but grants CareStack a non-exclusive, non-transferrable, revocable and royalty-free right and licence to collect, use, handle and process the Customer Data in order to provide the Services and comply with its obligations under this Agreement (including any Order Form).

8.2 CareStack will collect, use, disclose, store and otherwise handle all Personal Information forming part of Customer Data in accordance with its Privacy Policy, the CareStack Terms of Use and the terms and conditions of this Agreement.

8.3 Customer shall have sole responsibility for, and warrants on a continuing basis:

(a) the accuracy, quality, completeness, integrity, legality, reliability, appropriateness of all Customer Data; and

(b) all users’ compliance with this Agreement and any Order Form(s), and the means by which Customer acquired Customer Data;

(c) it has or will procure and maintain for the duration of this Agreement all consents, permits and licences as may be required to collect, use, disclose, store and otherwise handle Customer Data, including from individuals whose Personal Information form part of Customer Data, and that such consents, permits and/or licences have not been withdrawn at any time;

(d) it complies with Privacy Laws in its collection, access, use, disclosure and handling of Personal Information, including the sensitive health information of each individual whose Personal Information forms part of Customer Data;

(e) it has provided or will provide all required notices to each individual whose Personal Information forms part of Customer Data; and

(f) that it has all relevant rights to own and use, including holding all Intellectual Property Rights in, the Customer Data.

8.4 CareStack shall use commercially reasonable efforts to maintain the security and integrity of the Services, including Customer Data in accordance with all laws applicable to the provision of the Services. To the maximum extent permitted by law, CareStack is not responsible to Customer for any unauthorized access to, loss or disclosure of, Customer Data held, or any unauthorized use of or access to the Services, except where such unauthorised access, use, disclosure or loss arises directly due to CareStack’s gross negligent acts or omissions, or CareStack’s wilful misconduct.

8.5 Without limiting any other provision of this Clause 8 (Customer Data), Customer warrants on a continuing basis that:

(a) it has at all times complied, and will continue to comply, with all Applicable Laws with respect to Customer Data and Personal Information;

(b) it will use commercially reasonable efforts to prevent unauthorised access to, disclosure of, loss or use of the Services, and notify CareStack promptly of becoming aware of any such unauthorised access, disclosure, loss or use;

(c) it will not upload, nor will the Customer Data contain, any data, documents, materials or information which is or may be:

(i) subject to any restraints, controls, restrictions of any kind, or any prohibitions relating to its communication, dissemination or export from Australia;

(ii) infringing in any way of any medical, dental health guidelines, Applicable Laws or otherwise applicable to Customer or its personnel (including end-users); or

(iii) defamatory, abusive, obscene, threatening, malicious or otherwise objectionable or illegal or in breach or violation of any Applicable Laws, or which infringes the rights of any party, including without limitation, contractual, moral, proprietary and/or privacy rights; and

(d) any Customer Data and /or other materials supplied or made available to CareStack to provide the Services are fit for the purposes intended and are true, accurate and complete, and are not misleading or deceptive in any way.

8.6 CareStack will not access or use, or disclose to any third party any Customer Data, except, in each case, as necessary to:

(a) maintain or provide the Services under this Agreement; or

(b) comply with Applicable Laws, or a valid and binding order of any regulator or government body (such as a subpoena or court order).

If a regulator or government body issues CareStack a demand for Customer Data, CareStack will attempt to redirect the regulator or government body to request that data directly from Customer, and in this event, CareStack may provide Customer’s basic contact information to the regulator or government body. If CareStack is however compelled to disclose Customer Data to a regulator or government body, then CareStack will use best endeavours to provide Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless CareStack is legally prohibited from doing so.

8.7 Customer agrees and acknowledges that:

(a) Customer Data received may be transferred to, and collected, used, disclosed and/or stored in any country in which CareStack, its affiliates and/or its sub-contractors maintain facilities for the Services as set out in our Privacy Policy, the CareStack website https://carestack.com/en-AU or otherwise made known to you;

(b) CareStack may access and/or use Customer Data only as necessary for the purposes of providing the Services to Customer and in accordance with the terms of this Agreement and any other reasonable and documented instructions provided by the Customer to CareStack.

9. USE OF AGGREGATED ANONYMOUS DATA

9.1 To the maximum extent permitted by law, CareStack may:

(a) create and generate, and

(b) freely use and make available (to restricted third parties in a controlled environment, but not make publicly available),

(c) Aggregated Anonymous Data for CareStack’s reasonable business purposes (including for the purposes of supporting the improving, testing, operating, promoting and marketing CareStack’s products and services).

9.2The parties each agree that Aggregated Anonymous Data is separate from and does not constitute either of Customer Data or Personal Information (to the extent permitted by Applicable Laws) for the purposes of this Agreement. Once anonymised, CareStack will retain all right, title and interest in and to the Aggregated Anonymous Data (and Customer will execute such documents as may be necessary to perfect such right, title and interest). Aggregated Anonymous Data will not be considered Confidential Information.

10. DELIVERY & DELETION OF CUSTOMER DATA

10.1 At any time during the Term of this Agreement, and for a period not to exceed thirty (30) days from the expiration or termination of this Agreement (or any Order Form), Customer may issue a written request to CareStack to make available a copy of exportable and retrievable Customer Data that is held by CareStack in a format determined by Carestack. Where reasonably requested by Customer on at least fourteen (14) Business Days prior written notice to CareStack, subject always to the terms and conditions of this Agreement:

(a) CareStack will provide Customer a Fee quote in advance for exporting the relevant Customer Data to the Customer, chargeable at its then-current hourly rates for such services (Quote);

(b) Customer will have a maximum of five (5) days from the date of issue of the Quote to accept or reject the Quote and provide written confirmation to CareStack of its decision;

(c) If the Quote is accepted, upon receipt of the Customer’s written acceptance, CareStack will use commercially reasonable efforts to deliver the relevant Customer Data in the exportable file format within a period of fifteen (15) days of the date of acceptance of the Quote; and

(d) CareStack will have no obligation or be required to take any action under this clause if the Customer’s decision is to reject the Quote provided under Clause 10.1 above.

10.2 No later than the end of the ninety (90) day period post termination or expiration of this Agreement, Customer will close all CareStack accounts containing Customer Data, and will have the right to delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

11. PRIVACY

11.1 If the performance of rights and obligations under this Agreement involves the handling of any Personal Information, then each Party must:

(a) comply with all Privacy Laws applicable to, and binding on, it in its handling of Personal information;

(b) in the case of Customer Data, CareStack will comply with all reasonable and documented directions of Customer under this Agreement (and any Order Form);

(d) take all reasonable steps to protect Personal Information from misuse, loss and unauthorised access or disclosure; and

(e) without undue delay, notify the other Party if it becomes aware of a breach of any applicable Privacy Laws relating to the Services or Customer Data.

11.2 Without undue delay after becoming aware of a Security Incident, CareStack will:

(a) notify Customer; and

(b) take appropriate measures to address the Security Incident, including reasonable measures to seek to mitigate the adverse effects resulting from the Security Incident.

11.3 To enable Customer to notify a Security Incident to relevant regulators, authorities and/or individuals (as applicable), CareStack will cooperate with and assist Customer by including in the notification under Clause 11.2 such information about the Security Incident as CareStack is able to disclose to Customer, taking into account the nature of the handling and processing of Customer Data, the information on the Security Incident available to CareStack at the relevant time, and any restrictions on disclosing the information, such as confidentiality. Taking into account the nature of the handling and processing of Customer Data, Customer agrees that it is best able to determine the likely consequences of a Security Incident.

11.4 In the event that CareStack notifies Customer of a Security Incident, under Clause 11.2 above, or Customer otherwise becomes aware of any accidental or unlawful loss of, unauthorised access to, or disclosure of, Customer Data, Customer will be responsible for:

(a) determining if there is any resulting notification or other obligations arising under Privacy Laws; and

(b) taking necessary action to comply with those obligations.

This does not limit CareStack’s obligations under this Clause 11(Privacy) or under applicable Privacy Laws to notify any Eligible Data Breach affecting CareStack.

11.5 To the extent that the Customer determines that an Eligible Data Breach affecting Customer Data has arisen, and notification of that Eligible Data Breach is required under the Privacy Act, or if CareStack notifies Customer that an Eligible Data Breach has occurred, Customer will:

(a) meet with CareStack and endeavour to agree who will issue the resulting notification to the regulator, government body and/or individuals;

(b) if Customer is to issue the notification(s), promptly provide CareStack with a draft of the notification(s) and allow CareStack an opportunity to make any changes reasonably required by CareStack prior to issue, and then issue the notification(s) in accordance with the requirements of Privacy Laws (including applicable time periods),

(c) otherwise, allow CareStack to issue the notification(s) in accordance with the requirements of Privacy Laws (including applicable time periods).

(d) in any case, ensure that (to the extent feasible) CareStack is notified of any investigation or other action taken by any regulator, government body or individual in connection with a suspected or actual Eligible Data Breach and is kept informed of the developments in relation to that investigation or other action.

11.6 Unless otherwise specified in an Order Form, CareStack’s only obligation in respect of any loss of Customer Data arising from a Security Incident is the restoration of Customer Data from the last available backup.

12. CONFIDENTIALITY

As between the parties, each Party retains all ownership rights in and to its Confidential Information.

12.1 Each Party acknowledges the importance of the Confidential Information to the other Party. Accordingly, each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.

12.2 The Recipient may only use the Confidential Information of the Discloser for the purposes of performing its obligations or exercising its rights under this Agreement. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and will not use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement.

12.3 Except as otherwise authorised by the Discloser in writing, the Recipient may not disclose Confidential Information of the Discloser to any person except:

(a) representatives, legal advisers, auditors and other consultants of the Recipient including subcontractors, in the case of CareStack) who require it for the purposes of performing obligations or exercising rights consistent with this Agreement or the Services, and then only on a need-to-know basis, and who are each subject to obligations of confidentiality which are, materially, no less protective of the Confidential Information than the provisions set out in this Agreement; or

(b) if required to do so by Applicable Laws (subject always to Clause 8.6(b) (Government Demand)) or any applicable stock exchange (as relevant).

13. TERM; TERMINATION

13.1 This Agreement shall commence upon the date of execution by all parties and will (save for earlier termination in accordance with these terms) continue in effect unless and until all Order Forms under it have expired or been terminated in accordance with the terms of the applicable Order Form(s).

13.2 The Services under this Agreement will commence on the date specified in the first Order Form (Effective Date).

13.3 For each Order Form, the initial term shall be as specified on the applicable Order Form (the “Initial Order Form Term”) which term will, unless earlier terminated, roll-over on a month-to-month basis following the expiry of the Initial Order Form Term. The Customer has the right to cancel the Agreement, or any Order Form, at any time on the provision of notice to CareStack in accordance with Clause 13.6 below.

13.4 Where feasible, CareStack will use best endeavours to provide written notice to the Customer of the impending monthly-roll over renewal date of any Order Form under Clause 13.3 above, within a period of ninety (90) days prior to the expiry of the Initial Order Form Term, at which point the Customer may exercise its right to cancel any such renewal under Clause 13.6 below.

13.5 For the purposes of Applicable Laws, Customer acknowledges and agrees that the renewal and monthly roll-over provisions set out in Clause 13.3 above are reasonably necessary to protect CareStack’s legitimate interests given that:

(a) the Services are provided as cloud-based services to customers on a one-to-many basis and it would be disproportionate effort for CareStack to enter into new contracts each time one comes to the end of its term;

(b) CareStack would be forced to incur significant administrative cost in issuing and managing new contracts;

(c) CareStack provides the Customer with the right to cancel or terminate the Agreement (or, where specified, any Order Form) at any time on notice, under Clause 13.6 below; and

(d) these clauses, including the Customer’s right to terminate, assist to distribute the risks fairly between the parties.

13.6 Either party may terminate this Agreement (or an Order Form):

(a) for convenience, upon sixty (60) days’ written notice to the other Party; or

(b) immediately, where: (i) the other party is in material breach of this Agreement and fails to remedy that material breach within thirty (30) days of receipt of a notice requiring the party to remedy that breach; or (ii) the breach is irremediable.

13.7 To the maximum extent permitted by law, CareStack may suspend or limit Customer’s access to or use of any of the Services in place, in any of the following events:

(a) for scheduled maintenance during the Maintenance Window, or Emergency Maintenance;

(b) in the event Customer has not paid Fees due and payable within a period of thirty (30) days following the date of issue of an invoice for such Fees, provided the outstanding fees are not the subject of a dispute, and notice has been given of the outstanding fees in accordance with this Agreement.;

(d) Customer’s use of the Service results in (or is reasonably likely to result in, as reasonably determined by CareStack in its reasonable discretion) damage to or material degradation of the Service which interferes with CareStack’s ability to provide access to the Service to other customers, or breaches CareStack’s acceptable use requirements for the Services as set out in this Agreement, provided that in the case of this Clause 13.7(b), CareStack shall use reasonable commercial efforts:

(i) to work with Customer to resolve or mitigate the damage, breach or degradation in order to resolve the issue without resorting to suspension or limitation;

(ii) prior to suspension or service limitation, to provide notice to Customer describing the nature of the damage, breach or degradation and the cure period during which Customer should seek to remedy; and

(iii) to reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.

Nothing in this clause prohibits CareStack from taking immediate action to protect its reputation or the provision of the Services to other customers where any use of the Services by the Customer becomes materially detrimental to CareStack’s continuation of its Services to all customers.

13.8 Upon expiration or termination of this Agreement:

(a) all amounts due and payable to CareStack, whether or not invoiced, including any Fees relevant to provision of the Services for the period prior and up to the date of termination, as at the date of termination, become a debt due and payable by the Customer on that date;

(b) each party must promptly return or destroy the other party’s Confidential Information, as directed by the other party in accordance with this Agreement; and

(c) all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability (save that provisions entitled “Customer Data” will survive any termination or expiration of this Agreement only for so long as CareStack retains possession or control of Customer Data).

13.9 Notwithstanding the foregoing, and without prejudice to all other rights and remedies available to CareStack, in the event that CareStack terminates this Agreement reasonably for cause to the maximum extent permitted by Applicable Laws, any unpaid fees covering the remainder of the term of all Order Forms remaining on foot (and which are, by termination of the Agreement, also terminated) become immediately due and payable by the Customer to CareStack.

14. INDEMNIFICATION

14.1 To the maximum extent permitted by Applicable Laws, each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its affiliates and each of its and its affiliates’ personnel (collectively, the “Indemnitee”) from and against any and all liabilities, losses, claims, and expenses paid or payable (including reasonable attorneys’ fees) (“Losses”), that arise directly out of or in connection with :

(a) in the case of Customer as Indemnitor:

(i) any breach of Clause 8 (Customer Data) including claims that the Customer Data (including Personal Information forming part of the Customer Data) that was acquired by the Customer and/or disclosed to CareStack (or any subcontractor) in breach of any applicable Privacy Laws, and/or Clause 8 (Customer Data) of this Agreement; or that infringes the Intellectual Property Rights of any person;

(ii) a Security Incident or Eligible Data Breach caused or contributed to by the Customer (or any of its end-users);

(iii) fraud, or fraudulent misrepresentation, gross negligence, wilful misconduct or criminal offence, by the Customer, any of its end-users or any member of its personnel;

(iv) the Customer (or its end-users or any member of its personnel)’s use of the Services in breach of this Agreement (or any Order Form), or any third party’s Intellectual Property Rights, privacy rights or other proprietary rights or interests; and

(b) in the case of CareStack as Indemnitor, any claim that the Services (excluding Customer Data or any Customer (end-user or personnel) unauthorized access or use of the Services), infringes any third party Intellectual Property Rights, except to the extent the infringement:

(i) is caused by the Customer failing to promptly provide CareStack with written notice of a claim against it or Customer failing to give CareStack sole control of the defence and settlement of such a claim against it; or Customer failing to provide CareStack with all reasonable assistance in relation to the defence and settlement of the claim;

(ii) relates to Customer Data;

(iii) relates to the use of the Services with a Third Party Service that is not a CareStack Provided TPS; and

(iv) arises as a result of the Customer’s breach of the terms of this Agreement, including in relation to acceptable use of the Services.

14.2 Notwithstanding any other provision of this Agreement, each Indemnitee shall provide the Indemnitor with:

(a) prompt written notice of any claim (provided that a failure to provide such notice shall not relieve the Indemnitor of its indemnity obligations, except where it can be shown that the Indemnitor is materially prejudiced by such failure);

(b) the option to assist in the defence and settlement of any claim (or take sole control of the claim, as desired, at own expense); and

(c) reasonable information, co-operation and assistance in connection with such defence and settlement (at the Indemnitor’s expense).

In no event will any Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.

15. WARRANTY; DISCLAIMER

15.1 Each party represents and warrants that:

(a) it is duly authorised to enter into this Agreement and it has full power and authority to negotiate the terms of and enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party as set out herein;

(b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder: (i) are binding upon that party; and (ii) do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and

(c) it will comply with all Applicable Laws in the performance of its obligations under this Agreement. You are duly authorized to enter into this Agreement and the Order Form including to negotiate any amendments or additions to either (and if you are a person who is an employee of a Customer, you have the consent to act on behalf of, and bind, your employer to so act);

15.2 CareStack warrants that (to the best of its knowledge and belief):

(a) it will not knowingly or intentionally include in the Services provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and

(b) it will provide the support and professional services under this Agreement in a professional and workmanlike manner.

15.3 Except as expressly provided in this Agreement (including any Order Form), and subject always to the Non-Excludable Rights,

(a) the Services are provided “AS IS” and “AS AVAILABLE” and are without warranty of any kind, express or implied all of which are expressly disclaimed to the maximum extent permitted by Applicable Laws;

(b) CareStack provides no assurance or warranty that:

(i) the Services (in whole or in part) will meet Customer’s requirements;

(ii) Customer’s use of the Services will be uninterrupted, timely, secure and error-free;

(iii) the Services will be accessible at any time or at all times via the channel selected or used by Customer;

(iv) the quality of the Services, information or other material purchased or obtained by Customer from CareStack will meet your expectations;

(v) any errors in the Services will be corrected; and

(vi) the information and content provided on the Services is complete, accurate or current.

15.4 Except to the extent required by law, CareStack is NOT responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with:

(a) the transfer of data over public telecommunications networks and/or facilities, including the internet and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; or

(b) the Customer’s own information technology environment, including any Customer software, hardware, systems, IP addresses, domain names, or other Customer materials (not provided to CareStack to perform the Services) (Customer IT Environment).

15.5 Customer warrants that:

(a) Customer IT Environment is in good working order and it has (or has licences to) any IPR subsisting in the Customer IT Environment;

(b) it has in place, and continues to take all reasonable steps to protect Customer IT Environment, including Customer Data from any unauthorised access, disclosure, loss or use; and

(c) it will only access the Services in accordance with the provisions of this Agreement (and any Order Form); and will comply at all times with CareStack’s reasonable written instructions for access and use of the Services.

16. LIMITATION OF LIABILITY

16.1 The Australian Consumer Law, and other similar consumer protection laws and regulations under Applicable Laws, may imply certain rights, consumer guarantees, warranties or remedies relating to the Services which cannot be excluded, restricted, qualified or modified by CareStack (Non-Excludable Rights). Nothing in this Agreement, or any Order Form, excludes or limits, or attempts to exclude or limit Customer’s Non-Excludable Rights. Subject to the Non-Excludable Rights and except for any warranties expressly set out in this Agreement, any condition, warranty, guarantee, right or liability which would otherwise be implied in this Agreement (or any Order Form) or imposed by law, is expressly excluded.

16.2 Subject to Clause 16.1, and the indemnification obligations in this Agreement and all amounts properly payable, including Fees, by the Customer under this Agreement, to the maximum extent permitted by law, in no event shall either Party (or any of its Affiliates or personnel, or any content providers or contractors) be liable under or in connection with this Agreement, whether arising under statute, contract, tort (including strict liability or negligence) or any other legal or equitable remedy, for or in respect of:

(a) any loss of profits, loss of data, loss of anticipated savings (whether direct or indirect); or

(b) any special, indirect, incidental, punitive, or consequential loss or damages of any kind whatsoever, whether or not reasonably foreseeable, reasonably contemplated, or actually contemplated by the parties under this Agreement;

(d) for any bugs, viruses, trojan horses, or the like (except where the introduction of such bugs, viruses, trojan horses or the like, are due to a material breach of either party).

16.3 Subject always to Clause 16.1 (Non-Excludable Rights), Clause 16.2 (Losses) and Clause 16.4 (Excluded Losses) below, to the maximum extent permitted by law, the total aggregate liability of each Party under this Agreement for any and all Losses howsoever arising (whether under contract, at law, in tort or otherwise) under this Agreement shall be limited to the Fees paid or payable by Customer to CareStack in the twelve (12) month period immediately prior to the date on which the Loss arose (or where 12 months has not elapsed in the Term, the pro-rata amount of the Fees that have been paid and would have been payable in that initial year), except that nothing in this Clause 16.3 will limit Customer’s obligation to pay CareStack for the use of the Services, including the Fees, or any other payment obligations properly incurred by Customer under this Agreement.

16.4 Subject always to Clause 16.1 (Non-Excludable Rights), and to the maximum extent permitted by law, CareStack will not be liable for any Losses (including under a warranty or indemnity) incurred or suffered by Customer or any third party which arise out of or in connection with:

(a) Customer's failure to comply with its obligations under this Agreement, or to use the Services in accordance with the terms of this Agreement (or any Order Form); or

(b) any use of the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent:

(i) not created or provided by CareStack (including without limitation any Customer Data);

(ii) made in whole or in part in accordance to Customer specifications;

(iii) modified after delivery by Customer;

(iv) combined with other products, processes or materials not provided by CareStack, including any Third Party Materials (where the alleged Losses arise from, connect or relate to such combination); or

(v) where Customer continues allegedly infringing activity after being notified by or on behalf of CareStack: (i) of such infringement; or (ii) of modifications that would have avoided the alleged infringement.

(c) telecommunications or power failure or fault or defective network or internet connection affecting Customer, or the Services;;

(d) any security breach or incident affecting Customer’s IT Environment (which is not a Security Incident)

16.5 Where required by Applicable Laws, a party's liability under this Agreement will be reduced to the extent that the other Party caused or contributed to the relevant liability or the act giving rise to the liability.

17. DISPUTE RESOLUTION

17.1 If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Agreement, or with respect to any matter connected with this Agreement or arising out of it (a “Dispute”), the Parties must take the following steps to attempt to resolve the Dispute:

(a) either Party may serve a written notice on the other Party stating the nature of the Dispute and invoking the dispute resolution process set out in this; and

(b) the Parties must meet (including remotely) within ten (10) Business Days after the date of the receipt of the Dispute Notice, or such other period as the Parties agree in writing, and negotiate in good faith to resolve the Dispute.

17.2 lf the Dispute is not resolved in accordance with this clause within twenty (20) Business Days of the date of the Dispute Notice, or such other period as the Parties agree in writing, the Dispute will be referred to mediation in the first instance.

17.3 Disputes will be ultimately resolved by arbitration administered by the Australian Centre for International Commercial Arbitration (“ACICA”) in accordance with the then-applicable ACICA Arbitration Rules, and judgment on the arbitral award may be entered in any court having jurisdiction. The arbitration will take place in Sydney, Australia. There will be one arbitrator. The fees and expenses of the arbitrator and the administering authority, if any, will be paid in equal proportion by the parties. The parties agree that the existence of and information relating to any such arbitration proceedings will not be disclosed by either party and will constitute Confidential Information.

17.4 Other than proceedings for urgent interlocutory relief, a Party may not commence or maintain any proceedings in any court with respect to a Dispute unless and until that Party has complied with the procedures in this clause.

18. MISCELLANEOUS

18.1 This Agreement, including the Order Forms, and any agreed amendments, represent the entire agreement between Customer and CareStack with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and CareStack with respect thereto.

18.2 The Agreement shall be governed by and construed in accordance with the laws of the Victoria, Australia, excluding its conflicts of law rules, and each Party hereby consents to exclusive jurisdiction of the Courts of Victoria, Australia and Commonwealth of Australia for the determination of any disputes (including non-contractual disputes) under this Agreement (including any Order Form).

18.3 All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section.

18.4 Except as otherwise provided herein, this Agreement may be amended only in writing executed by both parties.

18.5 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure directly results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

18.6 Customer may not assign any of its rights or obligations hereunder without CareStack’s prior written consent, which shall not be unreasonably delayed or withheld, except to a successor-in-interest in connection with a sale of substantially all of Customer’s business relating to this Agreement, which is not a competitor of CareStack. CareStack may freely transfer and assign any of its rights and obligations under this Agreement

18.7 No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

18.8 Any Order Form subject to this Agreement may be executed in counterpart by the parties, with any signed copy counterpart constituting an original, and together comprising a single legal instrument.

18.9 In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.

18.10 If any provision of this Agreement (or any Order Form) is held to be unenforceable for any reason, such provision shall be severed and / or reformed only to the extent necessary to make it enforceable without affecting the remainder of this Agreement (or any Order Form).

18.11 The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights or remedies with respect to a breach or any subsequent breaches.

19. DEFINITIONS & INTERPRETATIONS

In this Agreement, unless the context otherwise requires, or otherwise expressly stated herein:

Aggregated Anonymous Data means data submitted to, collected by, or generated by CareStack in connection with its provision of the Services, including as a result of Customer’s use which has been fully aggregated, anonymized and de-identified such that it can in no way be linked specifically to any individual nor identify any particular individual of any kind, nor constitute Personal Information of the Customer (or any of its end-users).

Applicable Laws means all Australian (Federal, State & Territory) laws and regulations, together with international applicable laws, enactments, regulations, regulatory policies, guidelines, mandatory and legally required industry codes, regulatory permits and regulatory licences which are in force from time to time during the Term, including, in respect of the Customer and/or any Customer personnel, any statutory duty;

Australian Consumer Law means the Australian Consumer Law under Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or updated from time to time;

CareStack Provided TPS has the meaning given in clause 5.5;

Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the Parties, before, on or after the date of this Agreement, relating to the business, products, services, customers or other affairs of the Discloser of the information but does not include information which is in or becomes part of the public domain other than through breach of this Agreement;

Customer Data means any data, information or other material embodied in any medium that is provided, uploaded, or submitted by or on behalf of Customer to the Services, and platforms and websites forming part of the Services (including the CareStack Platform), including Personal Information (but excluding always any publicly available information or information obtained from third-party providers to CareStack and made available to Customer through the Services);

Discloser means a discloser of Confidential Information;

Dispute has the meaning given in clause 17

Dispute Notice has the meaning given in clause 17.1(a);

Eligible Data Breach means, as more particularly defined in Section 26WE/WF of the Privacy Act, any loss of, unauthorised access to, or unauthorised disclosure of, Customer Data which is likely to result in serious harm to any of the individuals to whom the Customer Data relates, and remedial action taken does not prevent that serious harm.

Emergency Maintenance has the meaning given in clause 4.4(a);

Feedback has the meaning given in clause 5.7(c);

Fees has the meaning given in clause 6.1;

GST has the meaning given in the GST Law;

GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and terms used which are not defined in this Agreement, but which are defined in the GST Law, have the meanings given in the GST Law;

Indemnitee has the meaning given in clause 14.1

Indemnitor has the meaning given in clause 14.1

Initial Order Form Term has the meaning given in clause 13.3;

Insolvency Event means in respect of a Party, the occurrence of one or more of the following events:

(a) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company;

(b) a provisional liquidator, liquidator or person having a similar function under the laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within ten (10) Business Days;

(c) the company is deregistered under the Corporations Act 2001 (Cth) or other legislation or notice of its proposed deregistration is given to it; or

(d) anything analogous to or of a similar effect to anything described above under the laws of any relevant jurisdiction.

Intellectual Property Rights or ‘IPR’ means copyright, patents, database rights and rights in trade marks, designs, know-how and confidential information whether in software or otherwise (and whether registered or unregistered); applications for registration, and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;

Losses has the meaning given in Clause 14.1;

Maintenance Window has the meaning given in Clause 4.3(a);

Non-Excludable Rights has the meaning given in Clause 16.1;

Order Form means the order form provided by CareStack that incorporates the Agreement, under which Customer may order the Services, as varied by CareStack from time to time;

Order Form Term means the period set out in an Order Form during which CareStack will provide the Services, comprising the Initial Order Form Term and any Renewal Order Form Term(s);

Personal Information has the meaning given in the Privacy Act, and includes data or information (including an opinion), whether true or not, about an individual who can be identified or reasonably identifiable either from that data or from that data when combined with other information to which an entity has access or is likely to have access;

Privacy Act means the Privacy Act, 1988 (Cth), including the Australian Privacy Principles (APPs), together with all codes of practice, guidance and rules and orders issued thereunder, including all amendments, updates, replacements and/or additions to each or any of them from time to time;

Privacy Laws means the Privacy Act, the SPAM Act (2003), and all other Applicable Laws in force relating to or impacting on the handling and/or privacy of Personal Information, together with all codes of practice, guidance and rules and orders issued thereunder, including all amendments, updates, replacements and/or additions to each or any of them from time to time;

Professional Services has the meaning given in clause 3.1;

Recipient means a recipient of Confidential Information;

Scheduled Maintenance has the meaning given in clause 4.3;

Security Incident means any breach of CareStack’s security controls or environment leading to the accidental or unlawful loss of, unauthorised access to, or disclosure of, Customer Data.

Services means all services provided by CareStack to Customer under this Agreement (including any Order Form), including the Professional Services, CareStack Platform, Maintenance & Support Services and all other services or works provided from time to time (as each are amended or updated from time to time);

Support & Maintenance Services has the meaning given in Clause 4.1;

Update has the meaning given in Clause 2.2; and

‘user’ or ‘end user’ means any end-user of the Services, including any employee, director, officer, agent, contractor or any other representative of the Customer who may access and / or use the services under this Agreement (regardless of whether such access or use is authorised by the Customer).