Software as a Service Agreement – Health Portal
AcceptanceThis Agreement is entered into by Respiri Limited, ACN 009 923 and the Customer. This Agreement applies to the Customer’s and its Authorised Users’ access to and use of the Portal and related Services. By accepting this Agreement through clicking a box indicating acceptance, the Customer agrees to the terms and conditions of this Agreement. If the individual accepts this Agreement on behalf of a company, that individual represents and warrants that they have the authority to bind the company to the terms and conditions of this Agreement, in which case “the Customer” shall refer to that company.
- Respiri is the provider of the Health Portal Product.
- The Customer wishes to obtain access, and Respiri has agreed to supply access, to its Portal on a “Software as a Service” basis, in accordance with this Agreement.
1. Definitions and interpretation
In this Agreement, unless the context requires otherwise:
Agreement means this Agreement, including the Schedules, as amended from time to time in accordance with the terms of this Agreement;
Authorised Users means the Customer’s authorised end users for the Services;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia;
Change in Control means a direct or indirect change in 50% or more of the voting or participation rights or equity, or a change in the ability to appoint or remove all or a majority of the directors of a corporation;
Commencement Date means the date specified in the Schedule;
Confidential Information of a Discloser means the following information, regardless of its form, whether it was disclosed by, learned from or which may concern, the Discloser or its business or products or services, and regardless of whether the Recipient becomes aware of it before or after the date of this Agreement:
- information that is by its nature confidential or that is designated by the Discloser as confidential;
- information the Recipient knows, or ought to know, is confidential;
- all notes and other records prepared by the Recipient based on or incorporating information referred to in paragraph (a) or (b);
and for the avoidance of doubt, in the case of Respiri, includes:
- information relating to the Portal;
- information relating to Respiri’s Personnel, policies, business, systems, and data;
- information relating to the terms on which the Services are to be provided to the Customer pursuant to this Agreement,
but excludes information that:
- the Recipient creates (whether alone or jointly with any third person) independently of the Discloser or any Confidential Information;
- is disclosed without restriction to the Recipient by a third person, whom the Recipient knows has a legal entitlement to possess and disclose the information without an obligation of confidentiality;
- the Recipient proves it knew without any confidentiality obligation before the Recipient (or its personnel or representatives) disclosed the information to the Recipient; or
- is public knowledge (otherwise than as a result of a breach of confidentiality by the Recipient or any of its permitted disclosees),
Consequential Loss includes any loss or damage which is indirect, consequential, special, punitive, exemplary or incidental, including any loss of profit, revenue, anticipated savings or business opportunity, business interruption losses, loss or corruption of data or systems, costs of procurement or substitution of goods and/or services, or damage to goodwill or reputation however caused or arising as a result of the Agreement;
Customer Access Facilities means telecommunications, networks, systems and any other facilities (including any connection, hardware, software, web services, third party content or software or equipment) used, or required, by or on behalf of the Customer for accessing and making use of the Services but excluding any telecommunications connection, hardware, software, web services, third party content or software, or equipment provided by Respiri from time to time under this Agreement;
Customer Data means any and all data and information related to which Respiri is provided access by the Customer or its Authorised Users for the purpose of the Services;
Discloser means the party disclosing Confidential Information to the Recipient or about whose business or products or services the information relates;
Documentation means any user documentation or other operating and reference manuals relating to the use of the Portal, as supplied by Respiri to the Customer from time to time;
Fees means the fees specified in the Schedule;
Force Majeure Event means any beyond the reasonable control of a party that occurs to the extent that it results in the party being unable to perform an obligation under this Agreement on time. This includes fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot, malicious damage, health epidemic or pandemic (whether declared or undeclared), strike or other labour difficulty (whether or not involving the employees of the party concerned) including any restriction on the movement of individuals or goods imposed by any applicable laws;
Further Term means 12 months, subject to clause 2.2;
Initial Term means the initial term of this Agreement, as specified on the relevant website when the Customer enters this Agreement;
Insolvency means the happening of any of the following events:
- an order is made that a body corporate be wound up;
- an order appointing a liquidator or provisional liquidator in respect of a body corporate is made;
- except to reconstruct or amalgamate while solvent on terms consented to by the other party acting reasonably, a body corporate enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
- a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent on terms approved by the other party acting reasonably or is otherwise wound up or dissolved;
- a body corporate is or states that it is insolvent;
- as a result of the operation of applicable Law, a body corporate is taken to have failed to comply with a statutory demand;
- a body corporate is, or makes a statement from which it may be reasonably deduced by the other party that the body corporate is, the subject of an insolvency event under applicable Law;
- a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to a body corporate;
- a resolution is passed to appoint an administrator or an administrator is appointed to a body corporate; or
- anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright (including Moral Rights), designs, circuit layouts, trademarks and service marks (including goodwill in those trademarks and service marks), trade secrets, know-how, confidential information, domain names, patents, inventions, discoveries, goodwill and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of 1967, together with any right to apply for the grant or registration of same;
Invoicing Terms means the invoicing terms specified in the Schedule;
IP Claim means any third party claim that the Portal or its use in accordance with this Agreement infringes or violates any third party’s Intellectual Property Rights;
- principles of law and equity established by decisions of courts;
- statutes, rules, regulations, proclamations, ordinances, by-laws and other subordinate legislation; and
- codes of practice, policies and other lawful requirements of any government authority;
Maintenance and Support Services means the maintenance and support services set out in Respiri’s service level agreement in Schedule 1 to this Agreement, as may be updated from time to time by Respiri;
Moral Rights means any moral rights as described under applicable Laws, or other analogous rights arising under any statute, that exist or that may come to exist anywhere in the world;
Payment Terms means the payment terms specified in the Schedule;
Personnel means any individual employed or engaged by Respiri or any subcontractor to perform Services for the Customer pursuant to this Agreement;
Personal Data means any personal data as defined by applicable Law;
Privacy Laws means all information privacy Laws applicable to the Portal;
Recipient means the party receiving Confidential Information from the Discloser;
Server means those computer servers located as of the date of this Agreement in the United Kingdom that Respiri owns, leases or otherwise controls whether in its own data centre or the data centre of another entity with which Respiri has a contractual relationship;
Services means a collective reference to the Portal, Documentation, Maintenance and Support Services, and Server that together comprises the Software as a Service offered by Respiri to the Customer under this Agreement;
Specifications means the specifications provided for in the Documentation for the Portal;
Term means the Initial Term and any Further Term;
Update means an updated version, indicated by a higher numerical version number, of the Portal with enhancements, additions to functionality, performance improvements, and/or corrections, changes or workarounds for any defects, errors or malfunctions; and
Withholding Tax means any tax which any applicable Law requires to be deducted or withheld on or as a result of making of a payment.
In this Agreement, unless the context requires otherwise:
- clause and subclause headings are for reference purposes only;
- the singular includes the plural and vice versa;
- words denoting any gender include all genders;
- a reference to a person includes any other entity recognised by law and vice versa;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- any reference to a party to this Agreement includes its successors and permitted assigns;
- any reference to any agreement or document includes that agreement or document as amended at any time;
- the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
- the expression at any time includes reference to past, present and future time and performing any action from time to time;
- an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
- a reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this Agreement;
- a reference to a clause described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this Agreement means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
- when a thing is required to be done or money is required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day; and
- a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
1.3 Order of precedence
To the extent there is a conflict between the terms of this Agreement and any Schedule, the order of precedence of documents constituting this Agreement will be as follows:
- clauses 1 to 16 of this Agreement;
- the Schedule;
- attachments or annexures to the Schedule; and
- any other document incorporated by reference.
2.1 Initial TermThis Agreement will commence on the Commencement Date and continue for the Initial Term, subject to early termination in accordance with clause 15.
2.2 Renewal PeriodAt the end of the Initial Term and any Further Term, this Agreement will automatically renew for a Further Term unless either Party notifies the other Party at least ninety (90) days prior to the end of the then-current Term that it does not wish to extend the Term for a Further Term.
3.1 Grant of licenceIn consideration of the Fees and subject to the Customer complying with this Agreement, Respiri grants to the Customer a limited, non-exclusive, non-transferable, sub-licensable (to the extent permitted under clause 3.2) licence during the Term to access and use the Services solely for the Customer’s internal business purposes in accordance with the Specifications.
3.2 Authorised UsersRespiri acknowledges and agrees that the Customer may allow its Authorised Users, to access and use the Services subject to the following conditions:
- the Customer will be liable for such Authorised Users’ access and use of the Services;
- the Customer will ensure compliance by the Authorised Users with the terms of this Agreement; and
- upon termination of an Authorised User’s engagement with the Customer, the Customer will ensure that that Authorised User’s access and use of the Services ceases immediately.
4.1 GeneralRespiri will grant the Customer access to the Portal. The Customer will be able to grant its Authorised Users access to the Portal in accordance with the Specifications.
4.2 HostingThe Customer acknowledges and agrees that the Services may be hosted, managed, and supported by Respiri or by a third party cloud-based service provider.
4.3 Maintenance and Support ServicesRespiri will provide the Maintenance and Support Services in respect of the Portal for the duration of the Term.
- Respiri will make Updates for the Portal available to the Customer from time to time during the Term.
- The Customer must adopt the Updates and ensure that its Authorised Users do likewise.
5. Client’s Obligations
5.1 GeneralThe Customer will:
- at no charge to Respiri, promptly issue all consents, approvals, or acceptances necessary for Respiri to give the Customer access to the Services under this Agreement;
- obtain and maintain all authorisations, licences, approvals, permits, and other certifications necessary to fulfil its obligations under this Agreement;
- obtain, maintain and operate the Customer Access Facilities for the duration of the Term;
- provide Respiri and its Personnel with access to the Customer Access Facilities for the purpose of completing its obligations under this Agreement or as otherwise agreed by the Parties; and
- ensure that the Customer Access Facilities comply with the Specifications at all times during the Term.
5.2 IntegrationThe Customer will provide assistance and cooperation to, and provide any information (including any technical information and application programming interfaces) reasonably required by, Respiri in relation to any integrations or connections to the Customer Access Facilities reasonably required by Respiri to provide the Services.
- The Customer must, and ensure that all Authorised Users will:
- maintain and operate an appropriate level of security for its Customer Access Facilities;
- ensure there is no unauthorised access to the Services;
- not cause harm or damage to the Services;
- not commit, cause or allow any breach (or do anything which might put Respiri or its suppliers in breach) of any Law, regulation, government direction or industry standard or code;
- not use the Services in any manner that may breach a third party’s rights, including infringing a third party’s Intellectual Property Rights; and
- notify Respiri immediately of any unauthorised access to the Services, including any loss or misuse of Confidential Information.
- The Customer must ensure that appropriate data security measures are taken in relation to the Customer Data within its Customer Access Facilities, having regard to the nature of the Customer Data, including:
- using appropriate firewall and encryption technologies;
- applying latest security patches and Updates;
- disabling any unnecessary ports; and
- conducting regular security audits.
5.4 Acceptable use
- The Customer must not and must not attempt, or permit any of its Authorised Users, to:
- permit any other person to use the Portal;
- access and use the Portal in a manner which could interfere with the Portal or the access and use of the Portal by other users;
- engage in conduct or activities which attempt to manipulate or bypass any limitations on the Portal including anything that imposes an unreasonable or disproportionately large load on the Portal or any network or website connected to the Portal;
- do (or omit to do) anything that may jeopardise the security of the Portal or access to the Portal;
- resell, sub-license, resupply, provide a bureau service using, communicate or otherwise make the Portal available to a third party;
- post to the Portal or transmit or distribute any code, files or programs designed to interrupt limit or destroy the functionality of any computer software or hardware or any Trojan, worm or logic bomb;
- do (or omit to do) anything that may jeopardise the security of the Services or access to the Services;
- use the Services in a manner, nor permit the transmission, inputting or storage of any data in a manner, that infringes any third party rights;
- remove or tamper with any copyright, trade mark or other proprietary notice of ours or any other entity on the Portal;
- commit or encourage a criminal offence; or
- copy, reproduce, translate, decompile, disassemble, reverse-engineer, attempt to derive the source code, modify, vary or otherwise deal with the Portal, any computer code underlying the Portal or any content or any part thereof.
- The Customer will, and will ensure that all of its Authorised Users will:
- comply with all applicable Laws in relation to its access to and use of the Services; and
- take all reasonable precautions to keep access to the Services (including login information and passwords) secure and protected at all times from misuse or any form of unauthorised access or use.
6. Fees and Payments
- Respiri will provide the Services in consideration of the Customer paying the Fees.
- Respiri may in its discretion vary the Fees on each anniversary of the Commencement Date. The variation will be effective from the date of the relevant anniversary of the Commencement Date, and Respiri will provide confirmation in writing.
- In addition to its rights under clause 6.1(b), Respiri may increase the Fees on written notice to the Customer following any increase in the costs of providing the Services as a result of any change or increase in costs passed on by any third party service providers.
Respiri will issue a tax invoice to the Customer for Fees in accordance with the Invoicing Terms.
The Customer will pay each tax invoice in accordance with the Payment Terms.
Respiri may suspend the Customer’s and its Authorised Users’ access to and use of the Portal or the provision of the Services if there are any Fees which remain unpaid by the Customer after the expiry of the payment period specified in the Payment Terms.
Respiri may set-off against any amount owing to the Customer any amount owing, or claimed by Respiri to be owing, to Respiri from the Customer, whether under this Agreement or otherwise.
6.6 Value added tax
The parties agree that:
- all payments have been set or determined without regard to the impact of value added tax;
- if the whole or any part of a payment is subject to value added tax for which the payee is liable to pay, the amount of value added tax in respect of the payment must be paid to the payee as an additional amount, either concurrently with the payment or as otherwise agreed in writing; and
- the payee will provide to the payer a tax invoice.
6.7 Withholding Tax
If applicable Law requires the Distributor to deduct an amount in respect of Withholding Tax from a payment under this Agreement such that Respiri would not actually receive the full amount under this Agreement:
- the Distributor must deduct the amount for the Withholding Tax;
- the Distributor must pay an amount equal to the amount deducted to the relevant authority in accordance with applicable Law and give the original receipt to Respiri; and
- the Distributor must gross up the payment to Respiri so that the net amount received by Respiri is equal to the full amount of the payment had no remittance or deduction of Withholding Tax applied.
7. Customer Data
7.1 Provision of Customer DataThe Customer will be solely responsible for the content of all the Customer Data. Subject to the terms of this Agreement, the Customer:
- must ensure that the Customer Data will be ‘server ready’ and otherwise remain fully compatible with the Portal (including all Specifications);
- subject to any agreement between the parties or between either party and client to which the Customer Data relates, will be solely responsible for the creation, posting, updating and maintenance of the Customer Data; and
- will be solely responsible for the accuracy and appropriateness of all the Customer Data created by the Customer using the Services.
7.2 Access to and use of Customer DataRespiri:
- may access and use the Customer Data at any time for the purposes of the this Agreement (including for reporting purposes);
- reserves the right to remove any Customer Data that is not compliant with the Specifications or otherwise incompatible with the Services;
- is not obliged to review or monitor Customer Data used by the Customer in conjunction with the Services; and
- at the Customer’s cost, may assist the Customer in resolving any compliance or compatibility issues between its Customer Data and the Services.
7.3 SecurityRespiri will take commercially reasonable steps to:
- protect Customer Data (including Personal Data) to which Respiri has access in connection with this Agreement against unauthorised access, use, modification or disclosure; and
- ensure the security of Customer Data (including Personal Data) to which Respiri has access in connection with this Agreement by maintaining security systems and procedures that comply with established industry practice.
8.1 Compliance with Privacy LawsThe Parties will, in performing their respective obligations under this Agreement, comply with all applicable Privacy Laws, and neither Party will put the other in breach of any such Privacy Laws.
8.2 Client’s obligationsThe Customer will ensure that:
- the Customer is entitled to transfer Personal Data (including any Personal Data included in any Customer Data) to Respiri so that Respiri may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf; and
- the relevant third parties have been informed of, and have given their consent to, such use, processing and transfer of the Personal Data as required by all applicable Privacy Laws.
8.3 Use and disclosureRespiri will:
- not otherwise access, use, process, modify or disclose that Personal Data except with the Customer’s prior written consent; and
- promptly notify the Customer if it knows of or suspects unauthorised access to or disclosure of Personal Data,
- withhold any Customer Data or related Personal Data, data, documentation or other records from any regulatory authority with apparent authority to seek delivery or access to such Customer Data or related Personal Data, data, documentation or other records; or
- refuse to provide any such regulatory authority such Customer Data or related Personal Data, data, documentation or other records.
8.4 Complaints and data breachesRespiri will provide:
- reasonable assistance to the Customer, at the Customer’s cost:
- to resolve a complaint alleging a breach of Privacy Laws; or
- to comply with the obligations under Privacy Laws; and
- provide all necessary information and reasonable cooperation, at the Customer’s cost, to assist the Customer to comply with its reporting and notification obligations under the applicable Privacy Laws.
9. Intellectual Property Rights
9.1 Ownership of Portal
- The Customer acknowledges that Respiri is the proprietor or licensee of all Intellectual Property Rights in the Portal, Updates, Documentation, and in any material or information provided by Respiri to the Customer under or in connection with this Agreement.
- Nothing in this Agreement is intended to transfer any intellectual Property Rights from Respiri to the Customer or give the Customer any right to use Respiri’s Intellectual Property Rights, except in accordance with and permitted under this Agreement.
- The Customer will immediately notify Respiri of any actual or suspected infringement of Respiri’s Intellectual Property Rights.
- If the Services are held to be infringing, or Respiri has reason to believe that the Services may infringe, the Intellectual Property Rights or Moral Rights of any third party, Respiri may (at its option) either:
- procure for the Customer the right to continue to use the Services;
- replace or modify the Services so as to make them non-infringing; or
- excise the infringing portion of the Services from this Agreement and adjust the Fees on a pro-rata basis to account for the reduction in the functionality of the Services for the Customer.
9.2 Licence to Customer Data
- grants Respiri:
- a non-exclusive, royalty-free, non-transferable, sublicensable license to host, reproduce, transmit, cache, store, exhibit, publish, display, distribute, perform, and otherwise use the Customer Data solely as necessary to provide the Services for the Customer; and
- a perpetual, non-exclusive, royalty-free, worldwide, transferable, sublicensable licence to use the Customer Data in a de-identified and aggregated format to further develop and make improvements to the Portal, and to create, develop, and manage the Services or new services or products; and
- represents and warrants that it has the rights necessary to grant Respiri the licences under clause 9.2(a).
9.3 Ownership of modifications and derivative works
- The Customer acknowledges and agrees that ownership in any Intellectual Property Rights in any modifications, enhancements, adaptations or additions to the Portal or Documentation, and any Intellectual Property Rights arising from Respiri’s exercise of its rights under clause 9.2(a)(ii), will vest in Respiri immediately on creation.
- To the extent that such Intellectual Property Rights do not automatically vest in Respiri:
- the Customer assigns the whole of its legal and beneficial right, title and interest in and to such Intellectual Property Rights to Respiri, absolutely and free from any encumbrances; and
- the Customer agrees to execute all such further documents and do all such further acts, at its expense, that are necessary to effect the assignment of such Intellectual Property Rights to Respiri.
10. Confidential Information
10.1 Use and disclosureThe Recipient:
- may use the Discloser’s Confidential Information only for the purpose of performing its obligations under this Agreement; and
- must keep confidential and secure all of the Discloser’s Confidential Information in the same manner that it keeps and secures its Confidential Information.
10.2 Permitted disclosure
- The Recipient must take all reasonable measures to ensure that its officers, employees, and professional advisers who may have access to the Discloser’s Confidential Information:
- do not use or disclose Confidential Information other than in accordance with this Agreement;
- have agreed in writing with the Recipient to comply with substantially the same obligations in respect of Confidential Information as those imposed on the Recipient under this Agreement.
- The Recipient must notify the Discloser of, and take all steps to prevent or stop, a suspected or actual breach of clause 10.1.
- The Recipient will be liable for the acts, omissions and defaults in respect of the Discloser’s Confidential Information, by any person to whom the Recipient disclosed such Confidential Information in accordance with clause 10.2(a), as if they had been the Recipient’s own acts, omissions or defaults.
10.3 Disclosure by lawIf the Recipient is required by law to disclose any Confidential Information to any third party (including to government), the Recipient must:
- only disclose so much of the Confidential Information as is required to comply with that law (and then only to the extent required to comply with such law);
- before doing so:
- notify the Discloser; and
- give the Discloser a reasonable opportunity to take any steps that the Recipient considers necessary to protect the confidentiality of that information; and
- notify the third party that the information is the Confidential Information of the Discloser.
11.1 Mutual warrantiesEach party warrants to the other that:
- by executing this Agreement it will be enforceable in accordance with its terms;
- it has obtained all necessary consents as at the date of entering this Agreement to enable it to execute this Agreement;
- it is duly incorporated in the place of its incorporation; and
- it is able to pay its debts as and when they fall due.
11.2 IP WarrantyRespiri represents and warrants that:
- it has the rights necessary to provide the Services to the Customer under this Agreement; and
- use of the Services by the Customer will not infringe any third party rights, including Intellectual Property Rights or Moral Rights of any third party.
11.3 Customer Data warrantyThe Customer represents, warrants and covenants to Respiri that:
- the Customer Data or its use will not violate, misappropriate or infringe any Intellectual Property Rights or any other personal, privacy or Moral Right arising under the Laws of any jurisdiction of any person or entity, nor will same constitute a libel or defamation of any person or entity;
- the Customer Data will not contain any harmful components, including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs;
- the Customer has all right, power and authority necessary to enter into this Agreement and use the Customer Data as described herein; and
- the Customer will comply with all applicable Laws, rules and regulations (including, but not limited to, export control, decency, privacy and intellectual property laws).
11.4 ExclusionsRespiri does not warrant and excludes liability for:
- any third party products or facilities not provided by Respiri; or
- services not provided solely by Respiri or its Personnel.
11.5 DisclaimerRespiri does not warrant that the operation of the Services will be uninterrupted, always accessible, free of harmful components, accurate, or error-free.
12.1 Respiri’s indemnity
- Respiri indemnifies the Customer from and against any claims, actions or proceedings, arising out of an IP Claim.
- If in Respiri’s reasonable judgment any such IP Claims, or threat of an IP Claim, materially interferes with the Customer’s use of the Portal, Respiri will consult with the Customer, and Respiri will have the option, in its sole discretion, to:
- substitute functionally equivalent non-infringing Portal or Documentation;
- modify the Portal to make it non-infringing; or
- obtain for the Customer at Respiri expense the right to continue using the infringing Portal; or
- If Respiri cannot achieve any of the remedies in the preceding clause on a reasonable commercial basis, it may, by written notice, require the Customer to cease using the Portal (or the relevant functionality), refund a pro-rata portion of the Fees for such period of time in which the Customer was unable to use the Portal (or the relevant functionality).
- Respiri will have no indemnity obligation for any IP Claim resulting or alleged to result from:
- any combination, operation, or use of any Portal with any programs or facilities not supplied by Respiri or not specified in this Agreement for such purpose if in Respiri’s reasonable judgment such infringement is caused by such use;
- inclusion of the Customer Data;
- any modification of the Portal by a party other than Respiri if such infringement would have been avoided in the absence of such modifications;
- the use of the Portal in a manner other than for its intended purposes or contrary to the Specifications; or
- failure by the Customer to adopt an Update; and
- to the extent permitted at Law, this clause 12.1 states Respiri’s entire liability and the Customer’s sole and exclusive remedy for all IP Claims.
12.2 Client’s indemnityThe Customer indemnifies Respiri, its Personnel, and its affiliates against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- the Customer’s (or any Authorised User’s) use of the Services contrary to this Agreement;
- the Customer’s breach of any third party right, including without limitation any Intellectual Property Rights or privacy rights, or any Law; or
- any claim arising as a consequence of the Customer Data including any content of the Customer Data or the circumstances of the collection of the Customer Data.
12.3 Indemnity procedureThe indemnification obligations under this clause 12 are conditional upon:
- the indemnifying party timely notice of any claim or cause of action upon which the indemnified party intends to base a claim of indemnification;
- the indemnified party providing reasonable assistance and cooperation to enable the indemnifying party to defend the action or claim; and
- the indemnified party allowing the indemnifying party to control the defence and all related settlement negotiations; provided that the indemnifying party may not settle any claim that results in the indemnified party’s liability and the indemnifying party will be required to consult in good faith with the indemnified party during any settlement discussions.
13.1 Consequential Loss
To the full extent permitted by Law, Respiri, nor its affiliates, will be liable to the Customer (or its affiliates), (whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, for repudiation, anticipatory breach or otherwise) for any Consequential Loss, regardless whether such party has been made aware of the likelihood of such losses.
13.2 Limitation of Liability
To the extent permitted by Law, Respiri’s, and its affiliates’, total cumulative liability to the Customer and its affiliates, for all claims arising under or in relation to this Agreement, whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, repudiation, anticipatory breach or otherwise, will not exceed when aggregated, twelve (12) times the average monthly Fees actually received by Respiri under this Agreement.
13.3 Duty to mitigate
Each party must use all reasonable endeavours to mitigate its liability under this Agreement.
13.4 Proportionate liability
A party’s liability under this Agreement will be reduced to the extent that the relevant Loss was caused or contributed to by the wrongful act or omission, including negligence, wilful misconduct, or breach of contract by, the party suffering the Loss.
14. Dispute Resolution
14.1 Notice of Dispute
A party claiming that a Dispute arising out of this Agreement has arisen must give the other party notice of the details of the Dispute.
14.2 No court proceedings unless procedure followed
A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 14. Nothing in this clause 14 prohibits either party from seeking interlocutory injunctive relief from a court or to preserve for that party its Claim against the operation of any law requiring the proceedings to be commenced within a specified period after the accrual of the cause of action the subject of the Dispute.
The parties must attempt to resolve any Dispute by negotiations using the following escalation procedure:
- when a notice of Dispute is given, each party’s senior managers must meet in order to first attempt to resolve the Dispute; and
- if the parties’ respective senior managers cannot resolve the Dispute within five (5) Business Days after the notice of Dispute is given, each party must refer the Dispute to their chief executive officer (or their nominee) who must then meet, either in person, videoconference or via telephone, within five (5) Business Days and attempt to resolve it.
If the Dispute is not resolved under clause 14.3 within 10 Business Days after the Dispute is submitted for negotiations in accordance with clause 14.3, then:
- The parties must try to resolve the Dispute by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause.
- The seat of arbitration will be Singapore.
- The tribunal shall consist of one (1) arbitrator.
- The language or arbitration will be English.
The parties involved in a Dispute will bear their own costs incurred under this clause, except that they will share equally the costs relating to any arbitrator appointed under this clause relating to the Dispute.
15.1 Termination for breachIn addition to any other rights of termination that each Party may have (including the termination rights in clause 15.2 below and any express termination rights contained in other clauses in this Agreement), a party may, by written notice, immediately terminate this Agreement if the other Party:
- breaches a material provision in this Agreement in significant way and does not remedy the breach within 30 days after being given written notice by the non-breaching party identifying the breach and requiring it to be rectified;
- breaches a material provision in this Agreement that is not capable of remedy; or
- becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of Insolvency.
15.2 Termination by Respiri
- Respiri may terminate this Agreement immediately by written notice if the Customer fails to pay the Fees within 30 days after Respiri gives the Customer notice of such non-payment.
- Any termination does not relieve the Customer from paying any past due amounts and any amounts due Respiri through the expiration date of this Agreement.
15.3 Consequences of termination
- Within 30 days (or earlier upon Respiri’s reasonable written request) after the effective date of a termination of this Agreement for any reason, the Customer will:
- pay Respiri for all Services performed by Respiri up to the effective date of such termination and all other amounts owed by the Customer to Respiri under this Agreement including, but not limited to, all Fees owed by the Customer as of the effective date of termination, regardless of the date of termination;
- destroy or return to Respiri all Respiri’s property, including, but not limited to all Documentation and the Confidential Information of Respiri; and
- upon destruction or return of Respiri’s property, provide Respiri with a signed written statement certifying that it has destroyed or returned all Respiri property to Respiri.
- In the event of termination of the Agreement prior to the expiration of the Term of Agreement, any Fees paid in advance will be refunded on a pro-rata basis.
- When requested in writing by the Customer, Respiri will deliver, within 30 days of receipt of request, electronic files containing all available Customer Data in an industry standard format.
- Within 30 days after the termination of this Agreement, all of the Customer Data in the Portal will no longer be available for access to the Customer. The Customer acknowledges and agrees that Respiri will retain the Customer Data in de-identified and aggregated format in accordance with clause 9.2s.
16. General provisions
16.1 CostsEach party must pay its own costs in relation to:
- the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
- that party performing any action in complying with any liability arising,
16.2 AssignmentA party must not transfer any right or liability under this Agreement without the prior consent of each other party, except where this Agreement provides otherwise.
- Any notice may be served by delivery in person, by post or by fax to the address or number of the recipient specified in this clause or most recently notified by the recipient to the sender.
- Any notice to or by a party under this Agreement must be in writing and signed by either:
- the sender or, if a corporate party, an authorised officer of the sender; or
- the party’s solicitor.
- Any notice is effective for the purposes of this Agreement on delivery to the recipient or production to the sender of a fax confirmation report before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next day following delivery or receipt.
16.4 Governing law and jurisdiction
- This Agreement is governed by and construed under Singaporean law.
- Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction of Singapore.
- By execution of this Agreement, each party irrevocably, generally and unconditionally submits to the non exclusive jurisdiction of any court specified in this clause in relation to both itself and its property.
16.5 AmendmentsAny amendment to this Agreement has no force or effect, unless effected by a document executed by the parties.
16.6 Third partiesThis Agreement confers rights only on a person expressed to be a party to it, and not on any other person.
16.7 Precontractual negotiationThis Agreement:
- expresses and incorporates the entire agreement between the parties concerning its subject matter, and all the terms of that agreement; and
- supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties concerning that subject matter or any term of that agreement.
16.8 Further assurancesEach party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
16.9 Continuing performance
- The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performing this Agreement.
- Any representation in this Agreement survives the execution of any document for the purposes of, and continues after, performance of this Agreement.
- Any indemnity agreed by any party under this Agreement:
- constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement; and
- survives and continues after performance of this Agreement.
16.10 WaiversAny failure by a party to exercise any right under this Agreement does not operate as a waiver. The single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
16.11 RemediesThe rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
16.12 SeverabilityAny clause of this Agreement which is invalid in any jurisdiction, is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining clauses of this Agreement or the validity of that clause in any other jurisdiction.
16.13 CounterpartsThis Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same document.
16.14 Party acting as trusteeIf a party enters into this Agreement as trustee of a trust, that party and its successors as trustee of the trust will be liable under this Agreement in its own right, and as trustee of the trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this Agreement:
- all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked, and the trust is a valid and subsisting trust;
- the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust, and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
- no restriction on the party’s right of indemnity out of or lien over the trust’s assets exists, or will be created or permitted to exist, and that right will have priority over the rights of the beneficiaries to the trust’s assets.
Schedule 1 – Service Level Agreement
Maintenance and Support Services
Respiri will offer Maintenance and Support services for their Health Portal Product to the Customer and end users in accordance with the specific services and commitments outlined below.
“Business Day” means a day other than a Saturday, Sunday, or public holiday in Australian Eastern Time (AEST).
“Tier 1 Level Support” means the ability to provide guidance on set-up and basic use of the Respiri Product; to troubleshoot Customer’s and/or end users’ connectivity infrastructure; and to gather relevant data for Respiri Support’s investigation.
“Interim Solution” means a short-term work around, code-fix delivered as a hot-fix or a patch developed and delivered by Respiri to Customer. An Interim Solution will be replaced with a Permanent Solution unless otherwise agreed to by Customer.
“Permanent Solution” means any action developed and provided by Respiri, the result of which is that the reported problem has been permanently resolved.
“Work Around” means a temporary solution to a problem. A Work Around will be replaced with a Permanent Solution unless otherwise agreed to by Customer.
“Resolution” means the outcome of any reasonable efforts to resolve the reported issue or problem experienced by the Customer. Methods are not limited to, and may include, configuration changes, reinstalling software, etc.
“Response Time” means the measure of time between the initial contact by the Customer to Respiri Support and the acknowledgment response by Respiri Support.
“Respiri Product” means any product, application or device included in the Respiri Solution.
“Respiri Support” means the Respiri technical support staff (including, without limitation, any Technical Representatives) to which all problems will be reported by Customer in accordance with the terms hereof.
“Technical Representative” means any technical representative support personnel providing services via Respiri Support.
Customer will be provided technical Support which may include but is not limited to
- Access to Respiri Support personnel who will work with the Customer or end user to diagnose the issue and provide a resolution.
- Access to Respiri Solution update releases once made generally available.
Respiri has no obligation to provide Support with respect to any component of the Respiri Solution if any part of the Respiri Solution is damaged or altered or incorporated with or into other software or hardware not authorized by Respiri.
The Customer agrees to identify and allocate its resources for basic training provided by Respiri with respect to the Respiri Solution. Training delivery may be conducted onsite or via telepresence, to be determined mutually by Respiri and the Customer.
Customer will designate internal resources who will provide Tier 1 Level Support with respect to the Respiri Solution to Customer, end users, clinicians, and authorized users to whom Customer distributes the Respiri Device(s) or who have access to the Respiri Solution.
Engaging Respiri Technical Support
To allow Respiri the opportunity to deliver optimal Support services, all problems, issues, or enhancement requests must be reported by the Customer to Respiri. On initial contact with Respiri, the Technical Representative will collect and validate Customer, the Agreement, the Respiri Solution, and entitlement information as relevant to the technical Support investigation.
The following section describes in detail the guidelines for Tier 1, Tier 2, and Tier 3 Support.
Tier 1 Support:
- Receiving the Support request from the End User (via the web, phone, or email)
- Collecting relevant technical problem identification information
- Filtering non-technical problems from technical issues
- Establishing and maintaining end user communications
- Providing general product information
- Escalating the case to Tier 2, Respiri Support, as necessary
- Obtaining sufficient information to replicate the problems (i.e. configuration, data, etc.)
Tier 2 Technical Product Support:
- Performing basic research and triage problem isolation and product defect determination
- Providing general product information for supported functionality and features
- Establishing, researching, and maintaining FAQs and Solutions knowledgebase about Respiri Products
- Debugging issues
- Lab simulation
- Action plan definition
- Escalating the case to Tier 3 as necessary
Tier 3 Development Product Support:
- Validation of Respiri Product defect
- Action plan definition
- Fix software/hardware issues or generate work arounds
- Troubleshoot issues, cases, and issues that Tier 2 support is unable to bring to resolution
- Escalate case to engineering for bug issues
- Coordinate software patches/hardware replacement with Tier 2 Support organization
Respiri Responses to Requests for Problem Resolution
A knowledgeable Respiri Support professional will respond to the Customer’s or end users’ request for problem resolution based on the problems severity level as described below.
High Problem Severity
Support: Within four (4) hours after logging the problem, provided the problem is reported between 9:00 am and 6:00 pm AET Monday through Friday.
Medium Problem Severity
Support: Within two (2) Business Days after the problem is reported.
Low Problem Severity
Support: Within five (5) Business Days after the problem is reported.
Problem resolution will consist of a Work Around, an Interim Solution, or a Permanent Solution. Problems that require an Interim Solution will be considered resolved when the test used to reproduce the problem demonstrates corrected behaviour.
Respiri endeavours to work toward the following objectives:
High Problem Severity
Work Around: Within 2 Business Days after reporting of problem.
Interim Solution: Within 5 Business Days after reporting of the problem if no Work Around is possible.
Permanent Solution: With next Product release.
Medium Problem Severity
Work Around: Within 5 Business Days after reporting of problem.
Interim Solution: Within 20 Business Days after reporting of the problem.
Permanent Solution: With next Product release.
Low Problem Severity
Work Around: n/a
Interim Solution: n/a
Permanent Solution: When deemed feasible by Respiri.
Respiri defines the severity levels as follows:
High Problem Severity
Definition: A High severity problem exists if any Respiri Product or major function thereof is inoperative or is experiencing terminable/intermittent problems that render the containing application or part(s) of the containing application inoperative.
Medium Problem Severity
Definition: A Medium severity problem exists if functionality of the Respiri Product is found to be defective or becomes unavailable, or contains a problem that renders Respiri Product difficult, but not impossible to use.
Low Problem Severity
Definition: A Low Severity problem exists if there is a non-critical degradation of the performance of the Respiri Product, or there are minor problems with the Respiri Product that need correction.
E-mail: [email protected]
Hours of Availability
Monday to Friday (excluding public holidays)
9:00 am to 9:00 pm AET