Archive-MSA

ARCHIVED VERSION: 28 November 2023

This RoseRx Services Agreement together with the Order Form (Agreement) is between you and Rosemary Health Pty Ltd, trading as RoseRx (ABN 72 632 003 377) (RoseRx, we or our). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or government representative), then ‘you’ means your entity and you are binding your entity to this Agreement.

1. Term

(a) This Agreement is effective beginning on the earlier of any Start Date or when you first download, install, access or use our Services (Commencement Date), and continues in full force and effect for the Term, unless terminated earlier in accordance with its terms.

(b) On expiry of the Initial Subscription Term or then-current Extension Period, this Agreement will automatically extend for further periods equivalent to the Extension Subscription Term (each an Extension Period) on (subject to clause 1(c)) the terms and conditions in effect as at the expiry of the Initial Subscription Term or then-current Extension Period, unless either party notifies the other in writing that it does not wish to renew the OrderForm at least 60 days before the end of the Initial Subscription Term or then-current Extension Period (as applicable).

(c) On the start of any Extension Period, the Fees in effect at the expiry of the Initial Subscription Term or preceding Extension Term (as applicable) will automatically increase by the amount specified in the Order Form unless you are notified otherwise by RoseRx.‍

2. Provision of the Services

2.1 Access to the Services

(a) RoseRx grants you a non-exclusive, non-transferable right to access and use, and to allow each Authorised User to access and use, the Services during the Term, in accordance with the Documentation.

(b) RoseRx will issue user names and passwords that allow Authorised Users to access and use the Services. You must ensure that Authorised Users keep their user names and passwords safe, not disclose them to anyone and only use their own user name and password, and you must tell RoseRx immediately if you suspect any unauthorised use of any user name or password. RoseRx will assume any person using such user names and passwords are Authorised Users.

2.2 Restrictions

You must not, and must not permit any other person to:
(a) decompile, reverse engineer or otherwise attempt to discover any source code of the Services

(b) sell, assign, sublicense, or otherwise transfer any rights in relation to, the Services, without RoseRx’s prior written consent (which will not unreasonably be withheld);

(c) use the Services to store material. You are responsible for keeping copies of any material you upload to or download from the Services;

(d) upload or distribute any files that contain Harmful Code;

(e) probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Services;

(f) take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Services;

(g) copy or reproduce any part of the Services in a manner which is inconsistent with this Agreement;

(h) access or use any other RoseRx clients' or third party users' data through the Services; or

(i) reduce or impair the accessibility of the Services.

2.3 Rights in the Services and Platforms

Except as may be specified in any Order Form, you acknowledge and agree that:
(a) all rights, title and interest in or to theServices, Platform, Deliverables and Documentation, including all Intellectual Property rights, are RoseRx’s property or the property of RoseRx’s licensors; and

(b) this Agreement does not transfer to you any proprietary rights in the Services, Platform, Deliverables or Documentation or derivatives thereof.

‍2.4 Services for Customer’s benefit

(a) Without limiting clause 2.2, you acknowledge and agree that the Services are provided solely for your use as set out in clause 2.1 (a) and, unless expressly permitted under this Agreement, required to comply with Law or with RoseRx’s prior written consent, you may not:

(1) show or provide a Deliverable to any third party or include or refer to a Deliverable or RoseRx’s name or logo in a public document; or

(2) make any public statement about RoseRx or the Services.

(b) RoseRx consents to you providing copies of Deliverables to your Associates, provided they have agreed:

(1) the Deliverables are not for their use or benefit;

(2) RoseRx accepts no responsibility or liability to them; and

(3) to comply with the obligations in clause 2.4(a) and 11 as if they were a party to this Agreement.

‍2.5 Updates to the Services

RoseRx may provide Updates to the Services throughout the Term. In providing Updates, RoseRx

(1) will use reasonable efforts to provide you with:

(a) at least 10 Business Days’ written notice of major modifications or updates (Major Updates); and

(b) where practical, notice of any other updates (which may be given after such updates have been made, if at all); and

(2) acting reasonably, will not make modifications or updates that would have a material adverse effect on your use of the Services. requested by you in relation to a Major Update.

‍2.6 Implementation and Configuration Services

RoseRx must use reasonable endeavours to provide the Implementation and Configuration Services from the Start Date so the Platform is ready for acceptance testing by the Customer in accordance with clause 3 by no later than the amount of days before the Target Go-Live Date specified in the Order Form. The Target Go-Live date will be automatically extended by a period corresponding to the period of any delay caused by the Customer or its Associates.

‍2.7 Insight Services

RoseRx will during the Term at the frequency specified in the Order Form provide to the Customer with behavioural and clinical outcome data for improved learning in a format determined by RoseRx.

‍2.8 Navigator Services

RoseRx will maintain a navigation team that is available during the Term to follow-up with Authorised Users regarding their use of, and inform Authorised Users of, the Platform.

‍2.9 Support Services

RoseRx will maintain a support team that will provide the Maintenance and Support Services in accordance with clause 4 and will be available to enable you and your Personnel to report Service Interruptions to support@roserx.health or a different location as nominated by RoseRx to you by notice or in the Order Form.

‍2.10 Service Levels

(a) The following table defines the priority levels (Priority Levels) that apply in relation to Service Interruptions.

Priority 1

A complete service outage or disruption which is within RoseRx’s control and which prevents Authorised Users from using the Services.

Priority 2

A partial service outage or disruption which is within RoseRx’s control and which has a significant impact on Authorised Users ability to use the Services.

Priority 3

A minor performance impact which impacts on Authorised Users’ ability to use the Services;
A minor issue impacting a group of Authorised Users’ ability to use the Services; or
An issue impacting an individual Authorised User’s ability to use the Services, such as password resets or investigation into accounts.

(b) If a Service Interruption occurs, RoseRx will:

(i) allocate the Priority Level for the Service Interruption in accordance with the definitions in clause 2.10 (a);

(ii) use commercially reasonable efforts to respond to (including notifying you of the Priority Level allocated to the Service Interruption) and resolve the Service Interruption within the time frames specified in the following table; and

(iii) for Priority Level 1 Service Interruptions, escalate the Service Interruption to your RoseRx account manager. Where a Response Time or Resolution Time is measured in minutes or hours, this will only be during 9am to 5pm AEST on Business Days.

Service Level

Priority 1

Response time: 24 hours
Resolution time: 5 hours

Priority 2

Response time: 24 hours
Resolution time: 2 days

Priority 3

Response time: 24 hours
Resolution time: 7 days

‍2.11 No exclusivity

You agree and acknowledge that RoseRx may perform services for your competitors or other third parties whose interests may conflict with yours.

3. Acceptance by Customer

3.1 RoseRx will notify the Customer in writing within a reasonable period of completing the Implementation and Configuration Services.

3.2 Upon receipt of a notice under clause 3.1, the Customer will promptly conduct the Acceptance Tests during the Acceptance Test Period.

3.3 Before the end of the AcceptanceTest Period, the Customer must by notice in writing either:

(a) issue to RoseRx an Acceptance Certificate in respect of the Platform; or

(b) reject the Platform because it has materially failed to meet all or any of the Acceptance Criteria (specifying which of the Acceptance Criteria the Platform fails to meet and the reasons why).

3.4 If the Platform materially fails to pass the Acceptance Tests within the Acceptance Test Period, the Customer may by notice in writing to RoseRx, elect to:

(a) require RoseRx, at RoseRx’s cost, to correct the Platform and make it available within a period agreed between the parties for repeated Acceptance Tests under this clause 3 until the Platform materially satisfies the Acceptance Criteria;

(b) provide an Acceptance Certificate subject to RoseRx rectifying any defects, problems with configuration or other issues identified by the Customer during theAcceptance Tests within a period specified by the Customer; or

(c) provide an Acceptance Criteria on an “as is” basis subject to the parties agreeing an appropriate reduction to the Fees.

4. Maintenance and Support Services

4.1 Scope

RoseRx will provide the following maintenance and support services for the Platform during the Term (Maintenance and Support Services):

Help desk

RoseRx will provide a help desk for your use of the Platform, in the form of consultation, assistance and advice in relation to:

the operation and function of the Platform;
the reporting and rectification of Faults in the Platform; and
making requests for changes such as adding or removing Authorised Users.

The help desk will be accessible at support@roserx.health or an alternative location nominated by RoseRx to you by notice or in the Order Form.

For Service Interruptions raised with the help desk, RoseRx will comply with clause 2.10.

4.2 Exclusions and changes

The Maintenance and Support Services do not include the rectification of Faults that are caused by (provided that you have been given a reasonable opportunity to implement such Fix or Upgrade, and such Fix or Upgrade does not adversely the affect the features, functions or performance of the Software): (1) use of the Software by you other than in accordance with this Agreement; (2) modifications by you to the Software; (3) use of the Software in connection or combination with equipment, devices or software that are not specified in writing by RoseRx as being compatible with the Software; or (4) the failure of you to implement any Fix or Upgrade that is made available to you. If you want RoseRx to further develop the Software, you may tell RoseRx and RoseRx will consider your request. RoseRx reserves the right, at its discretion, to change how theMaintenance and Support Services are provided at any time, based on prevailing market practices and due to any changes in the Platform by providing written notice to you.

5. Faults

You and we agree and acknowledge that:
(a) RoseRx does not guarantee that all Faults can be resolved or fixed;
(b) RoseRx will use commercially reasonable efforts to provide a Work-Around to a logged Fault;
(c) a logged Fault will be considered closed when:
(1) you and we have agreed in writing that the Fault has been resolved; (2) RoseRx has provided a Work-Around; or (3) the ticket for the logged Fault has been left open for 30 days and RoseRx has not received a response from your technical contact.

6. General representations and warranties

6.1 RoseRx warranties

RoseRx warrants that:
(a) it has full capacity and authority and all necessary licences, permits and consents to enter into and perform this Agreement; and

(b) in performing its obligations under this Agreement, it will comply with applicable Law.

6.2 Customer warranties

You represent and warrant that at all times during the Term, you:

(a) have full capacity and authority and all necessary licences, permits and consents to enter into and perform this Agreement; and

(b) in performing your obligations under this Agreement, will comply with applicable Law.

6.3 Disclaimer

Without limiting clause 14:

(a) RoseRx makes no representation, warranty or gives any guarantee that the Services are suitable for your purposes or your business;

(b) RoseRx makes no representation, warranty or gives no guarantee that the Services will be continuously available or free of any fault or Harmful Code;

(c) you agree thatRoseRx is not responsible or liable for any decision made or information provided by you or your Associate in connection with or in reliance upon the Services, Deliverables, or the selection or weighting of you Data as part of the Services;

(d) RoseRx does not accept a duty of care to any third parties and will not be responsible for any Loss suffered by them in connection with orin reliance upon the Services or Deliverables; and

(e) to the extent aDeliverable or other output incorporates or relies on any information provided to RoseRx by a third party, RoseRx does not accept responsibility for the accuracy or completeness of that information.‍

7. Customer obligations

You are wholly responsible for:

(a) providing an IT environment suitable to support use of the Services, including obtaining and maintaining all computer hardware, software, and communications equipment and Internet connectivity needed to access the Services, and which meets any minimum requirements of which RoseRx notifies you from time to time;

(b) paying all third party access charges incurred while using the Services;

(c) implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against Harmful Code;

(d) ensuring that there is a nominated sponsor responsible for advising and maintaining Authorised User access, and that stakeholders from your risk and technology teams are available as reasonably required by RoseRx to facilitate RoseRx’s provision of the Services; and

(e) maintaining a directory service for security for the purpose of authentication and managing Authorised User access.

8. Publicity

With the Customer’s prior written consent, RoseRX may:

(1) include statements, and use the Customer’s name and logos, in its website and other promotional materials for the purpose of indicating the Customer is a user of services provided by RoseRX; and

(2) request feedback from the Customer on the performance of the Services, and include such feedback in its website and other promotional materials‍

9. Fees

9.1 Fee

As at the Commencement Date, the fee for access to and ongoing use of the Services is set out in the Order Form (Fees). RoseRx may in its absolute discretion change the Fees by giving you at least 40 Business Days’ prior written notice. In the event you are not agreeable to the revised fees, you may terminate this Agreement with at least 20 Business Days’ prior written notice and RoseRx will refund the pro-rated fees for the unconsumed term.

9.2 Payment of Fees

Inconsideration for RoseRx providing the Services, you must pay RoseRx the Fees. All Fees are non-refundable unless RoseRx terminates this Agreement under clause 16.2, in which case RoseRx will refund the pro-rated portion of the Fees covering the period following termination.

9.3 Invoices

(a) RoseRx will be entitled to invoice you for the Fees on a quarterly basis, in advance.

(b) If in any quarter you use Services in excess of the amount paid for under clause 9.3 (a), RoseRx will as soon as practicable notify you of such excess use.

(c) Within 14 calendar days after the end of each quarter, RoseRx will conduct a reconciliation of the Services received by you during, and the Fees paid by you in advance for, the preceding quarter and invoice you for any Services received in excess of the amount paid for under clause 9.3 (a).

(d) You must pay invoiced Fees to RoseRx in full in clear funds within 14 calendar days of the date of invoice or the period of time specified in the Order Form. If Customer fails to pay any Fees by the due date, RoseRx may charge interest on the overdue sum from the due date until payment of the overdue sum. Interest under this clause will accrue each day at 8% a year above the Reserve Bank of Australia’s base rate from time to time.

9.4 Goods and Services Tax

The consideration for any supply made under or in connection with this Agreement does not include GST. If RoseRx is required to pay, in accordance with GST Law, any GST on the Services and Deliverables provided under the Agreement, you will pay to RoseRx the amount of GST properly payable provided RoseRx has issued you with a valid tax invoice.

‍9.5 Compliance costs

If RoseRx is required to provide information regarding you or the Services to comply with a statutory obligation, court order or other compulsory process relating to you, you agree to pay the reasonable costs and expenses RoseRx incurs in doing so, including time spent by professional staff and RoseRx’s reasonable legal costs. This clause 9.5 does not apply to the extent a compulsory process relates to RoseRx’s alleged wrongdoing.‍

10. Intellectual Property Rights

10.1 Customer Material

RoseRx acknowledges that, as between you and us, you own all Intellectual Property Rights in and to your Material. You grant RoseRx an irrevocable, perpetual, non-exclusive, transferable, royalty-free licence for the Term to use, develop, modify, adapt, reproduce and sublicense to its Related Bodies Corporate and third party contractors you Material to the extent necessary:

(1) to provide the Services and perform its obligations under this Agreement for the Term;

(2) to meet any of RoseRx’s obligations under Law, including for reasons of accountability and fidelity; and

(3) to make further Improvements to the Services or RoseRx Material.

10.2 RoseRx Material

You acknowledge that RoseRx owns all Intellectual Property Rights in and to the RoseRx Material. Subject to the payment of all outstanding fees by you, RoseRx grants to you a revocable, non-exclusive, royalty-free licence to use the RoseRx Material for the Term to the limited extent necessary for you to enjoy the benefit of the Services.

10.3 Improvements

(a) RoseRX owns all rights to and interests in any Intellectual Property Rights subsisting in any RoseRx Software and RoseRx Materials, invention or improvement, which is:

(1) made by you;

(2) attributable in whole or in part to the Services or RoseRx Materials; or

(3) any Intellectual Property Rights or Confidential Information of RoseRx (Improvements).

(b) All rights in and to Improvements vest in RoseRx immediately upon creation, and you hereby assign to RoseRx all of your rights to or interests in any Improvements.

(c) To the extent any rights to or interests in any Improvements do not vest in or are not assigned to RoseRx under clause 10.3(b),you agree to do all things necessary for the proper vesting or assignment of such rights and interests to RoseRx, including executing all documents or assignments and providing all necessary information, records or materials.

11. Confidentiality

11.1 Confidentiality

Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party. This obligation of confidence extends to Confidential Information provided to or obtained by a party before entering into this Agreement.

11.2 Exclusions

Despite clause 11.1, either party may disclose Confidential Information of the other party only on a ‘need‑to‑know’ and confidential basis:

(a) with the prior written consent of the other party, which may be given subject to any conditions at the discretion of the party giving consent;

(b) which it is legally required to disclose; and

(c) to its related companies, solicitors, auditors, insurers or accountants, however the discloser must ensure that every person to whom disclosure is made under this clause 11.2 uses the information disclosed solely for the purposes of advising or reporting to the disclosing party.

11.3 Actions to prevent disclosure

Each party must take all reasonable steps to ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not disclose the other party's Confidential Information other than in accordance with this Agreement.

12. Privacy and Customer Data

Without limiting any of RoseRx’s obligations under this Agreement with respect to the security of the Services and Customer Data, RoseRx must comply with its obligations set out in the Data Security and Data Privacy Addendum.

13. Indemnity

13.1 RoseRx indemnity

RoseRx will indemnify you for Loss that you incur arising out of or in connection with any Claim brought against you by a third party alleging that the Services, Software which is owned by RoseRx, RoseRx Material or any other Deliverable infringes any Intellectual Property Rights of that third party (IP Claim), provided that:

(1) you must promptly tell RoseRx of any IP Claim;

(2) RoseRx will be responsible for the defence of any IP Claim and any negotiations for settlement of the IPClaim;

(3) at RoseRx’s request, you will provide RoseRx with reasonable assistance with any IP Claim; and

(4) RoseRx’s liability to indemnify you will be proportionately reduced to the extent that an act or omission of you contributed to the Claim or Loss. RoseRx will have no liability to you and will not indemnify you for any Loss caused by your:

(1) infringement of RoseRx’s Intellectual Property Rights in the Services;

(2) use of the Services outside of the scope of this Agreement; or

(3) a breach of Law or of any other clause in this Agreement.

13.2 Customer indemnity

You indemnify RoseRx for any Claim or Loss arising out of your infringement of RoseRx’s Intellectual Property Rights in the Services or use of the Services not in accordance with this Agreement.

14. Liability

14.1 Limitation of liability

(a) Subject to clauses 14.1 (c) to 14.1 (f), the aggregate liability of RoseRx to you arising out of or in connection with this Agreement, whether in contract, in tort (including negligence), in equity, by operation of law or otherwise is limited to lesser of (i) the total amount paid by you under this Agreement in the 12 months preceding the event giving rise to the liability; or (ii) the amount we can recover under insurance in respect of the liability.

(b) Subject to clauses 14.1(c) to 14.1(f), your aggregate liability to RoseRX arising out of or in connection with this agreement, whether in contract, in tort (including negligence), in equity, by operation of law or otherwise is limited to the total amount paid by you under this Agreement in the 12 months preceding the event giving rise to the liability.

(c) The limitation in clauses 14.1 (a) and 14.1 (b) does not apply in relation to any liability arising directly out of: (1) personal injury (including sickness or death); (2) loss of or damage to tangible property of you; (3) a breach of a party’s confidentiality obligation under clause 11; or (4) a breach by RoseRx of its data security and data privacy obligations.

(d) Neither you or us or our respective Personnel will be liable to the other for any Consequential Loss incurred by the other arising out of or in connection with this Agreement.

(e) Your and our liability under this Agreement will be reduced proportionally to the extent any act or omission of the other party or its Personnel, caused or contributed to the liability.

(f) Neither you nor we are liable to the other for any Loss to the extent that the Loss was caused by the other party’s failure to perform its obligations under this Agreement.

15. Suspension

Without limiting any of RoseRx’s other rights and remedies under this Agreement, RoseRx may suspend access to the Services where RoseRx reasonably believes that there has been any unauthorised use of the Services by you, any Authorised User or any other person, using your login credentials. RoseRx will tell you about a suspension under this clause 15, and you agree to work with RoseRx in good faith and using commercially reasonable endeavours to resolve the issue giving rise to the suspension.

16. Termination

16.1 Termination by RoseRx

RoseRx may terminate this Agreement immediately by written notice to you if you are late in paying any amount payable to RoseRx under this Agreement and have failed to make payment within 30 days of receiving written notice of the late payment from RoseRx.

16.2 Termination for convenience

After the first anniversary of the Commencement Date, either you or we may terminate this Agreement for convenience at any time by giving 40 Business Days' prior written notice to the other.

‍16.3 Termination for default

Without limiting clause 16.1 either you or we may terminate this Agreement by giving written notice to the other party (defaulting party), such termination to take effect from the date specified in the notice, if:

(a) the defaulting party is subject to an Insolvency Event;

(b) the defaulting party commits a material breach of this Agreement and does not rectify that breach within 30 days (or another period agreed by you and we in writing) of receiving written notice of the breach from the first party; or

‍16.4 Consequences of termination or expiry of this Agreement

When this Agreement is terminated or expires, each party must, and must ensure that its Personnel, promptly return or destroy (at the other party’s discretion), any Confidential Information of the other party in its possession, custody or control. RoseRx will ensure all files that are marketing assets created under the Agreement and owned by you will be transferred or provided reasonably. Termination or expiry of this Agreement does not prejudice any right of action or remedy of either party which accrued prior to termination or expiry. RoseRX will promptly conduct a reconciliation of the Services received by you during, and the Fees paid by you in advance for, the period up to the effective date of termination or expiry and invoice you for any Services received in excess of the amount paid for under clause 9.3(a).

17. Force Majeure

If a party is affected, or likely to be affected, by a Force Majeure Event that party must immediately give the other prompt notice of that fact including:

(1) full particulars of the Force Majeure Event;

(2) an estimate of its likely duration;

(3) the obligations affected by it and the extent of its effect on those obligations; and

(4) the steps taken to rectify it. The obligations under this Agreement of the party giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues. A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible.‍

18. Notices

A notice or other communication to a party under this Agreement (Notice) must be in writing, in English, signed by or on behalf of the sending party and addressed using the following details (or alternative details nominated by Notice to the sending party):

RoseRx

Rosemary Operations Pty Ltd, trading as RoseRx

CEO

notices@roserx.health

L17, International Tower 3, Barangaroo Ave, Sydney NSW 2000, Australia

romain@roserx.health

‍You

The customer entity name, ABN, street address and authorised or representative personnel contact email address provided by you in writing to RoseRx either:

(1) at the Commencement Date when prompted on RoseRx’s website; or

(2) at anytime after the Commencement Date provided that RoseRx acknowledges in writing such notification by you of your updated or amended details.

A Notice must be given by one of the methods, and is regarded as given and received at the time, in the table below. However, if this means the Notice would be regarded as given and received outside of 9am to 5pm (addressee’s time) on a Business Day, then the Notice will instead be regarded as given and received at 9 am on the next Business Day.

‍Method of giving Notice and when Notice is regarded as given and received

By hand to the nominated address: 9 am (addressee’s time) on the second Business Day after the date of posting
When delivered to the nominated address: By email to the nominated email address
By trackable post to the nominated address: 2 hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within that 2 hour period, an automated message that the email has not been delivered.

19. General

(a) Interpretation: In this Agreement:

(1) headings and bolding are for convenience only and do not affect interpretation;

(2) specifying anything after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included;

(3) a reference to a clause or party is a reference to a clause of, and a party, this Agreement;

(4) a reference to $ means the lawful currency of Australia;

(5) an expression importing a natural person includes any body corporate and any other legally recognised entity; and

(6) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations ,replacements or re-enactments of any of them.

(b) Assignment: Neither party may assign, novate or otherwise transfer its rights or liabilities under this Agreement without the other party’s prior written consent.

(c) Subcontracting: RoseRx may subcontract or otherwise arrange for another person(in Australia or overseas) to perform any part of this Agreement or to discharge any of its obligations under any part of this Agreement.

(d) Relationship between parties: Nothing in this Agreement or the relationship between you and us constitutes a partnership, joint venture or other legal relationship between you and us.

(e) Amendment of Agreement: This Agreement may not be varied, supplemented or replaced except in writing executed by both parties.

(f) Severance: If a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed from this Agreement for the purposes of enforcement in that jurisdiction. The remainder of this Agreement has full force and effect.

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

(h) Entire agreement: This Agreement supersedes all previous agreements for its subject matter and contains all the express terms of the agreement between you and us.

(i) Governing law and submission to jurisdiction: This Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales,Australia, and courts of appeal from them, for determining any dispute concerning this Agreement or the transactions contemplated by it.

(j) Survival: The following clauses in this Agreement impose continuing rights and obligations on the relevant parties and survive termination or expiry of this Agreement: 10, 11, 12, 13, 14, 16.4, 18, 19 and 20.

(k) Agreement components and inconsistency: Unless the contrary intention is expressed, if there is an inconsistency between any of one or more of the following, the order of precedence between them will be the following order (clauses 1 to 20 of this Agreement having the highest level of precedence): (1) clauses 1 to 20 of this Agreement; (2) the Order Form; (3)a schedule; and (4) a document expressly incorporated by reference in: (i) clauses1 to 20 of this Agreement; (ii) the Order Form; or (ii) a schedule.

20. Definitions

The meanings of the terms used in this Agreement are set out below.

Acceptance Certificate means a written certificate issued by the Customer that the Customer is satisfied that the Platform meets the Acceptance Criteria.

Acceptance Criteria means the specifications and criteria required by the Customer in order for thePlatform to be accepted by the Customer, as set out in the Order Form.

Acceptance Test Period means the period of time specified as such in the Order Form.

Acceptance Tests are the tests designed to assess whether all or any part of the Platform meets theAcceptance Criteria.

Associates means in relation to a party, means: (1) a Related Body Corporate of that party; and (2) any Personnel of that party or a person referred to in paragraph (1), but excludes, where RoseRx is the party, any competitors of RoseRx.

Authorised User means

(1) you; and

(2) such other end users and other persons who you authorise to use the Services in accordance with this Agreement.

Business Day means a day on which banks are open for business in Sydney, Australia excluding aSaturday, Sunday or public holiday in that city.

Claim means any claim, action, demand, order, notice, declaration or proceedings of any nature whatsoever, whether actual or threatened.

Commencement Date has the meaning given in clause 1.

Confidential Information in relation to a party means any information (in any form) that:

(1) is by its nature confidential;

(2) is divulged in circumstances which imply that it is confidential;

(3) the party receiving the information knows or ought to know is confidential; or

(4) is designated by a party as confidential, including

(5) information which has any actual or potential commercial value or is comprised in or of or relating to any Intellectual Property Rights of a party; and

(6) information relating to the internal management and structure, policies and strategies of a party.

Consequential Loss means:

(1) any Loss that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the Loss;

(2) loss of production, use, business or revenue;

(3) loss of data;

(4) loss of goodwill or damage to reputation; or

(5) loss of profit or the opportunity to earn profit.

Customer Material means all software, tools, documentation, reports, diagrams, data procedures, plans and other Materials, irrespective of media or form, provided by or on behalf of you to RoseRx under this Agreement.

Data Security and Data Privacy Addendum means the addendum attached to this Agreement as Schedule 1.

Deliverables means an item or Material (whether Software, Documentation, Services or otherwise) required to be provided by or on behalf of RoseRx under this Agreement to you or any Authorised User.

Documentation means any documentation (including supporting documentation) related to the Service which is delivered or made available by RoseRx to you or Authorised Users whether published online or provided electronically or in hard copy.

Extension Period has the meaning given in clause 1(b).

Extension Subscription Period means the extension term for theServices specified in the Order Form.

Fault means any failure, fault, defect or error in the Platform, including a failure of the Platform to perform in accordance with the Documentation or otherwise comply with this Agreement.

Fees has the meaning given in clause 9.1.

Fix means any modification or addition to the Services that is provided by RoseRx under this Agreement, including any fix, update or patch that is not an Upgrade.

Force Majeure Event means an event or cause beyond the reasonable control of a party including:

(1) any act of God, lightning, storm, flood, fire, earthquake, explosion or adverse weather conditions;

(2) internet service provider or internet infrastructure failures;

(3) theft, malicious damage, strike, lockout or other labour difficulty;

(4) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, pandemic, epidemic;

(5) any act (including refusal or revocation of a licence or consent) by any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity; and

(6) embargo, power or water shortage or interruption, but only where the foregoing events or circumstances:

(a) are not caused by an act or omission of the affected party or any of its Associates;

(b) are beyond the reasonable control of the affected party or its Associates; and

(c) could not have been avoided or overcome by the affected party or any of its Associates taking reasonable precautions or steps.

Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

GST means any services and resources tax or similar value added tax levied or imposed by the GST Law or otherwise on a supply.

GST Law means A New Tax System (Services and Resources Tax) Act 1999 (Cth), or any other relevant legislation and regulations that apply from time to time, governing the issue of GST.

Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.

Implementation and Configuration Services means the implementation and configuration services specified in the Order Form and provided by RoseRx as set out in clause 0.

Improvements has the meaning given in clause 10.3.

Initial Subscription Term means the date referred to as such in the Order Form.

Insight Services means the services provided by RoseRx asset out in clause 2.6.

Insolvency Event in the context of a person means:

(1) receivership: a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the CorporationsAct 2001 (Cth) (Corporations Law)) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or undertaking of the person;

(2) insolvency: the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Law or is presumed to be insolvent under the Corporations Law;

(3) ceasing business: the person ceases or threatens to cease to carry on business; or

(4) liquidation: an application or order is made for the liquidation of the person, a resolution is passed, or any steps are taken to liquidate or pass a resolution for the liquidation of the person otherwise than for the purpose of an amalgamation or reconstruction.

Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights including:

(1) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;

(2) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;

(3) the right to apply for any industrial and intellectual property rights; and

(4) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future.

Law means any:

(1) legislation, including regulations, determinations, by laws, declarations, ministerial directions and other subordinate legislation;

(2) common law;

(3) Government Agency requirement or authorisation (including conditions for any authorisation);

(4) mandatory codes, standards and guidelines;

(5) writ, order, injunction, or judgment; or

(6) local government legislation, including regional plans, district plans, regulations, by laws, declarations, ministerial directions and other subordinate legislation.

Loss means any liability, cost, expense, loss or damage. In relation to a Claim, Loss includes amounts payable on the Claim (whether or not the Claim is successful) and legal and other professional costs and disbursements on a full indemnity basis.

Maintenance and Support Services means the ongoing maintenance and support services provided by RoseRx as set out in clause 4.

Material means any material, information or knowledge, regardless of form, including without limitation any data, text, chart, graphics, reports, calculations, statistics, software, source code, object code, designs, algorithms, templates, formats, tools, methodologies, strategies, processes, procedures or routines.

Navigator Services means the navigator services provided by RoseRx as set out in clause 2.7.

Order Form means the ordering document entered between RoseRx and Customer specifying the Services to be provided under this Agreement and the Fees to be paid by Customer for such Services.

Personnel in relation to a party, that party’semployees, agents, consultants and subcontractors.

Platform means the hardware, Software, equipment and network infrastructure necessary to host and provide the Services.

Priority Levels are defined in clause 2.9.

Related Bodies Corporate has the meaning given in CorporationsLaw.

Resolution means the correction of, or provision of a Work-Around in relation to, a Service Interruption.

Resolution Time means the elapsed time between the time RoseRx identifies a Service Interruption and the time RoseRx provides a Resolution for the Service Interruption.

Response Times means the elapsed time between the time RoseRx identifies, or is notified by you of, a Service Interruption, and the time RoseRx notifies you of the Service Interruption or acknowledges your notification of the Service Interruption.

RoseRx Software means the technology platforms which provide a personalised pathway for patients to navigate to a healthcare professional for treatment.

RoseRxMaterials means any Material, and any of RoseRx’s Software, algorithms, methodologies, processes, tools, tool-kits, routines, designs, templates, formats, strategies, content management tools, functional, technical, scripts, texts, graphics, databases, data compilations and collections and technical data or specification or instructional guides or procedures:

(1) the IntellectualProperty Rights of which are owned or licensed by RoseRx prior to theCommencement Date; or

(2) which are created or acquired by RoseRx on or after the Commencement Date, and which is incorporated in, or necessarily used in providing, the Platform and Services to you under this Agreement, and includes any Improvements developed by RoseRx for you.

Service Interruptions means a time during which you’ and itsAuthorised Users’ access to the Platform and/or the Services is impeded as set out in clause 2.9(a) but does not include any time during which Maintenance andSupport Services are being provided.

Service Levels means the service levels set out in clause 2.9.

Services means any Software, Implementation andConfiguration Services, Insight Services, Navigator Services and Maintenance and Support Services, and other services, specified in the Order Form.

Software means the RoseRx Software and any other software used by or on behalf of RoseRx to deliver the features and functionality of the Services, including:

(1) any Update,Upgrade, new release or Improvement relating to that software; and

(2) all application software for the Services and all system and server software used to provide the Services.

Start Date means the date referred to a such in theOrder Form.

Target Go-Live Date means the date referred to as such in the Order Form.

Term means the Initial Subscription Term and any Extension Period.

Update means a Fix or an Upgrade.

Upgrade means any modification or addition to theServices that has been produced to provide an extension, improvement or additional functionality to the Services, and any replacement or new software licensed by RoseRx that replaces or provides the same or similar functionality as the Services.

Work-Around means a work around or temporary Fix of a Service Interruption or Fault which permits you to use the Services with out any material degradation in functionality or performance.

Schedule 1: Security and Data Privacy Addendum

1.1 Definitions

In this Data Security and Data Privacy Addendum:

(a) Confidential Information in relation to a party means any information (in any form) that is Personal Information or any other information relating to a party's employees, subcontractors, agents, clients or suppliers.

(b) Customer Data means all Material containing Customer Confidential Information or Personal Information which RoseRx has access to under this Agreement and includes any Material generated by or processed in connection with the Services.

(c) Data Security Breach means any unauthorised access, modification, use, disclosure or loss of Customer Data caused by an act or omission of RoseRx or any RoseRx Associate.

(d) Personal Information has the meaning given in the Privacy Act 1988 (Cth).

(e) Privacy Laws means (1) the Privacy Act 1988 (Cth); and (2) any other legislation relating to the collection, use, disclosure, storage, processing or granting of access rights to Personal Information.

1.2 Compliance with Privacy Laws

RoseRx must always comply with all Privacy Laws in relation to Personal Information.

1.3 Security of Customer Data

You and we acknowledge and agree that:

(a) RoseRx will keep allCustomer Data it has been provided with access to confidential in accordance with paragraph 1.7 and maintain reasonable security measures designed to keepCustomer Data secure in accordance with good industry practice, the provisions of ISO/IEC 27001:2013 international information security standard and Privacy Laws;

(b) in the event of any loss, corruption or reduction in the accessibility or usability of any Customer Data, RoseRx will use commercially reasonable methods to restore such Customer Data in accordance with good industry practice data restoration techniques;

(c) whilst RoseRx will endeavour to protect Customer Data from loss or corruption in accordance with good industry practice, RoseRx cannot guarantee that Customer Data will not be lost or corrupted, and it is your sole responsibility to back up Customer Data on a regular basis;

(d) RoseRx may use anonymous or aggregated data about your use of theServices for the purpose of improving the Services; and

(e) for a period of 30days after the end of the Term, you may copy Customer Data from the Services, however after this period, RoseRx may remove all Customer Data from RoseRx’s systems.‍

1.4 Ownership and use of Marketing and or Customer Data

(a) If applicable, RoseRx acknowledges all Marketing and or Customer Data is your property and Confidential Information.

(b) You grant to RoseRx a non-exclusive, non-transferable, sub-licensable, royalty-free and fee-free licence to use and disclose so much of you Data as is necessary to give effect to RoseRx’s rights and obligations under this Agreement.

(c) You grant to RoseRx a perpetual, irrevocable, non-exclusive, non-transferable, sub-licensable and royalty-free licence to use anonymised and de-identified Customer Data for the purpose of developing and improving the Platform.‍

1.5 Occurrence of Data Security Breach

After becoming aware of any Data Security Breach, RoseRx will promptly:

(a) tell you of the breach;

(b) endeavour to identify the cause of the breach;

(d) endeavour to prevent any recurrence of such breach or potential breach.‍

1.6 Customer warranties

If Customer Data is required, you represent and warrant that at all times during the Term, you have all necessary licences, permits and consents to provide Customer Data to RoseRx under this Agreement.

1.7 Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party. This obligation of confidence extends to Confidential Information provided to or obtained by a party before entering into this Agreement.

(b) Despite paragraph 1.7 (a), either party may disclose Confidential Information of the other party only on a ‘need‑to‑know’ and confidential basis:

(1) with the prior written consent of the other party, which may be given subject to any conditions at the discretion of the party giving consent;

(2) which it is legally required to disclose; and

(3) to its related companies, solicitors, auditors, insurers or accountants, however the discloser must ensure that every person to whom disclosure is made under this paragraph 1.7 (b) uses the information disclosed solely for the purposes of advising or reporting to the disclosing party.

(a) Each party must take all reasonable steps to ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not disclose the other party's Confidential Information other than in accordance with this Agreement.