Streamline Master Services Agreement
Effective from: 1st March 2022
Customer as referenced on the Agreement (Customer)
1. Defined terms and interpretation
1.1 Definitions in the Dictionary
A term or expression starting with a capital letter:
(a) which is defined in the Dictionary in Section 1.2, has the meaning given to it in the Dictionary;
(b) which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act; and
(c) which is defined in the GST Law, but is not defined in the Dictionary or the Corporations Act, has the meaning given to it in the GST Law.
In this agreement:
Agreement has the meaning given in paragraph B of the Background.
Confidential Information of a party means information of or provided by that party to the other party that is by its nature confidential information, is designated by that party as confidential, or the other party knows or ought to know is confidential to that party, including in the case of the Supplier, the Software and Services and any information relating to them.
Data Extraction Services means the provision of API access to and use of the Software by the Supplier, to capture data from documents, as set out in a Service Schedule, but excludes the Hosting Services. For the avoidance of doubt, the Data Extraction Services include:
- providing the Customer (and their Organisational Groups) with access to and use of the Software via the Internet; and
- any other requirements described in a Service Schedule.
Defective means that the Software or the Data Extraction Services:
(a) do not materially conform to the Service Specifications or the Software Specifications (as the case may be); or
(b) otherwise do not materially comply with the requirements of this Agreement,
and Defect has a corresponding meaning.
Disengagement Assistance means the Services provided by the Supplier to the Customer following termination or expiry of this Agreement.
Documentation means documentation (in any format) required to be developed or supplied under this Agreement or required to enable Customer to use the Services in accordance with this Agreement.
Financial Year means a 12 month period ending on 30 June of any calendar year.
Force Majeure means an event that is beyond the reasonable control of a party, including an act of God, fire, war, civil insurrection, embargo or act of government or state, but excluding a lack of funds for any reason.
Good Industry Practice means, in relation to an undertaking, the exercise of that degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking.
GST has the meanings given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Hosting Services means the platform, account management, service improvement and Level 3 Support services to be provided under a Service Schedule, as agreed from time to time
Intellectual Property Rights means all present and future rights, title and interest in and to inventions, know-how, patents, patent applications, registered and unregistered trade marks, service marks, registered and unregistered designs, copyrights, circuit layouts, domain names, internet addresses, computer programs, confidential information, trade secrets, trade or business names and brand names.
Insolvency Event means in relation to a party, any of the following events:
(a) the party becomes insolvent;
(b) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to the party or the party enters into a scheme of arrangement with its creditors or is wound up;
(c) the party assigns any of its property for the benefit of creditors or any class of them; or
(d) the holder of any security interest granted by the party takes possession of any assets of the party or exercises any power of sale.
Learning Set Data means the accumulated learning and training data sets created by the Supplier that includes or is based on data provided by all Supplier clients, including Customer Data, which is used to train and improve the Supplier’s Software and Services, including on an iterative and ongoing basis.
Level 1 and 2 Support includes:
(a) acting as a single point of contact to the Customer and to end users regarding the use of the Data Extraction Service;
(b) initial incident identification, initial diagnosis and recording;
(c) collection of all relevant and available data for incident analysis;
(d) attempting to resolve all issues which can reasonably be expected to be resolved via front-line (helpdesk-type) support, including issues which can usually be resolved using standard support tools, product documentation or online knowledge base, without requiring bug-fixing or new developments to the Software;
(e) solutions that involve interactions of the Data Extraction Services with the Customer’s software or with networks, servers or other elements of the end user’s environment; and
(f) where escalation to Level 3 Support is required, delivery of the support package and all background information to Level 3 Support.
Level 3 Support includes:
(a) reproducing and diagnosing complex issues;
(b) correcting Defects;
(c) providing support that requires knowledge of the source code of the Software; and
(d) technical assistance to solve problems which the Customer cannot resolve after using reasonable efforts,
but excludes Level 1 and Level 2 Support and diagnoses or repair of parts of the end user system such as faulty hardware or operating system, or failure of communications links.
Customer Data means all numbers, characters, Images, content, or other information (whether in a human or machine readable form) that is created or obtained by Supplier in the course of providing the Services including data that is submitted, processed or generated by Customer or their customers using the Software.
Customer Property means any property, data or information of Customer (including the Customer Data and information created or obtained by the Supplier in the course of this Agreement that relates to Customer or its customers, businesses or other interests) in the custody or control of the Supplier or its Personnel.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
Organisational Group means a way of identifying sub-users of the Customer usage of the provided Service(s). This can be defined as:
(a) an organisation or individual user representing a “customer” or “organisation instance” for the Customer whereby that organisation or individual user has their own “instance” or “account” within the Customer’s own products/systems. Note that this typically does not include individual “users” within the same organisation but may do so if explicitly stated.
(b) where the Supplier considers the organisation or sub-user as an “end-user” of their (the Supplier’s) service(s) or products for purposes such as billing, access controls, organisation within the framework of the Supplier’s service(s), products etc.
Personal Data means any of the Customer Data which is Personal Information.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably Identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.
Personnel of a person means that person’s directors, officers, employees, agents, contractors and their respective Personnel.
Privacy Laws means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles in the Privacy Act 1988 (Cth)) and the Privacy Act 1993 (NZ) and any other legislation, statutory instruments and any other enforceable codes or guidelines regulating the collection, use and/or disclosure of personal information that applies to a party or to this Agreement.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Related Entity has the meaning given in the Corporations Act 2001 (Cth).
Service Level Requirements means the minimum acceptable level of performance for the Services set out in the relevant Service Schedule.
Service Schedule means a document titled Service Schedule attached to this Agreement or that references this Agreement and is signed by both parties. A template Service Schedule is attached at Schedule 2.
Services means the Data Extraction Services, the Hosting Services and/or Additional Services, as applicable.
Service Specifications means:
(a) the specifications in this Agreement;
(b) the Service Level Requirements;
(c) the additional specifications set out in a Service Schedule;
(d) the Supplier’s published specifications (including any specifications published on Supplier’s website); and
(e) the Documentation.
Software means the Supplier’s web based application service (Streamline) that extracts data from documents, and which is hosted and made available for use by the Customer via an API.
Software Specifications means:
(a) the specifications in this Agreement;
(b) the Service Level Requirements;
(c) the additional specifications set out in a Service Schedule;
(d) the Supplier’s published specifications (including any specifications published on Supplier’s website); and
(e) the Documentation.
Subsidiary has the meaning given in the Corporations Act 2001 (Cth).
Term means the period specified in clause 2(c).
Valid Tax Invoice means an invoice that complies with the GST Legislation.
In this agreement the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this agreement;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to that document;
(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this agreement;
(vi) this agreement includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a rule of an applicable financial market and is a reference to that law as amended, consolidated or replaced;
(viii) an agreement other than this agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(ix) a monetary amount is in Australian dollars;
(g) when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
(h) an agreement on the part of two or more persons binds them jointly and severally;
(i) in determining the time of day, where relevant to this agreement, the relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii) for any other purpose under this agreement, the time of day in the place where the party required to perform an obligation is located;
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it; and
(k) if there is any conflict between the body of this Agreement and the Service Schedules, the Agreement prevails unless expressly stated otherwise in the Service Schedule.
(a) The Customer wishes to utilise the Service. In the context of this agreement, the Service is Streamline.
(b) The purpose of this Agreement is to:
(i) outline the commercial agreements between the parties for provision and use of the Service; and
(ii) outline the conditions in which the Customer can utilise the provided Service.
(c) The Agreement commences on the date it is executed by both parties (Commencement Date) and continues until the expiry or termination of all Service Schedules, unless terminated earlier in accordance with this Agreement.
(d) The parties may from time to time during the Term of this Agreement enter into Service Schedules under which the Supplier will supply Services on the terms set out in this master services agreement and the Service Schedule.
3. Provision of Service
(a) The Supplier must provide the Service to the Customer:
(i) in accordance with:
(A) the Agreement (including the relevant Service Schedule, the Service Specifications and in accordance with the Service Level Requirements);
(B) applicable laws; and
(C) Good Industry Practice; and
(ii) in a professional, punctual and diligent manner.
(b) Without limiting any other clause in this Agreement (including Supplier’s obligation to provide the Services in accordance with the Service Level Requirements and to protect the security of Customer Data) the Customer acknowledges that:
(i) due to the nature of the Data Extraction Service(s) being provided, in that they are inexact and utilise artificial intelligence, and as source documents will have varying levels of quality, it is highly likely that there will be mistakes or inaccuracies in the data being captured;
(ii) the Supplier provides tools, features and functionality within the Data Extraction Service(s) to help reduce the incidence of incorrect data being captured or if it is, for that situation to be identified. It is the Customer’s responsibility to ensure any such features or tools are fully utilised to reduce any errors or inaccuracies; and
(iii) the Supplier provides absolutely no warranties for any of the data that is processed or otherwise that enters, is outputted from, is manipulated or extracted from any source or transitions through any part of the Data Extraction Services. The Supplier can provide indicative accuracy levels for example documents or applications when requested.
(c) The Supplier will ensure that:
(i) it does not knowingly permit any unauthorised party to access any Customer Data within its possession or control; and
(ii) it will implement information security and physical security controls to protect the confidentiality and integrity of Customer Data within its possession or control in accordance with Good Industry Practice.
(d) The Supplier will comply with Good Industry Practice to prevent viruses, worms, trojan horses, malware, spyware, disabling or malicious devices or code, time bombs, or any other software or hardware or configuration that may cause harm or an unauthorised change (Virus) to the Software or Customer Property or any computer system of Customer arising from the Services. The Supplier will implement reasonable steps in accordance with Good Industry Practice to meet this obligation, including patching the Hosting Infrastructure in a manner consistent with Good Industry Practice. The Customer acknowledges that Customer Data uploaded to Streamline by the Customer for processing and return to the Customer is not subject to Virus scanning and that, as a result:
(i) Careview has no liability or responsibility where a Virus uploaded to the Services by Customer is returned to Customer; and
(ii) the Customer must ensure that the Customer complies with Good Industry Practice to prevent Viruses in the Customer Data uploaded to Streamline.
(a) The Supplier represents and warrants that:
(i) it has all licences, authorisations, consents, approvals and permits required by applicable laws in order to perform its obligations under this Agreement.
(ii) the Services will not be Defective in any material respect;
(iii) the Services will meet the Service Level Requirements in all material respects, and will operate and be provided in accordance with the Service Specifications in all material respects;
(iv) the Services will be provided in compliance with all applicable laws, with due care and skill, in a professional, punctual and diligent manner and in accordance with Good Industry Practice;
(v) the Software will comply with the Software Specifications in all material respects;
(vi) none of:
(A) the Software;
(B) the Services,
(C) any use of or access to any of the Software or Services by Customer or a person authorised by Customer in accordance with this Agreement and the Documentation,
will infringe the Intellectual Property Rights of any person, provided that the Supplier’s liability for breach of this warranty will be reduced to the extent that the infringement:
(D) is based on Customer breach of this Agreement;
(E) is based on use of the Software or Services in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by the Supplier; or
(F) results directly from any Customer Data.
(b) Without prejudice to any other remedies available to Customer, if Supplier breaches the warranties given in clauses 4(a)(i) or 4(a)(v) then the Supplier must at its own risk and cost promptly:
(i) in relation to a breach of clause 4(a)(i), obtain any licences, authorisation, consents or approvals and permits required by applicable laws in order to perform its obligations under this Agreement; or
(ii) in relation to a breach of clause 4(a)(v), promptly correct or replace the Software.
5. Limitation of Liability
(a) To the extent permitted by law, the Supplier and its employees, contractors and agents exclude all implied warranties, guarantees and conditions under statute or general law in connection with any part of the Service provided, other than the warranties expressly set out in this Agreement.
(b) Subject to clauses 5(c) and 5(d), the liability of a party under or in respect of this Agreement whether in contract, tort (including negligence), statute or any other cause of action, is limited, in the aggregate in any Financial Year to the amount paid by Customer during that Financial year plus the amount which would be payable under this Agreement by Customer during that Financial Year if it was properly performed by both parties.
(c) The limitation of liability in clause 5(b) does not apply to liability of a party for:
(i) breach of confidentiality;
(ii) fraud or fraudulent misrepresentation; or
(iii) wilful breach of this Agreement.
(d) Neither party will be liable to the other party under or in respect of this Agreement whether in contract, tort (including negligence), statute or any other cause of action for any loss or damage which is:
(i) indirect, incidental or consequential loss or damage; or
(ii) a loss of profits, revenue, anticipated savings or goodwill, regardless of whether or not such loss or damage was in the contemplation of the parties at the time they entered into this Agreement.
(e) The Supplier indemnifies and will continue to indemnify, defend and hold harmless Customer and their employees, agents and contractors (each an Indemnified Party) against claims, liabilities, losses, damages, costs and expenses made against, or suffered or incurred by, an Indemnified Party to the extent they result from an infringement or alleged infringement of the Intellectual Property Rights of a person or arising from use of or access to the Services by the Customer in accordance with this Agreement and the Documentation (Claim).
(f) Where an Indemnified Party is not a party to this agreement the Customer holds the benefit of this clause on trust for that person.
(g) A party’s liability under this Agreement is reduced to the extent that any liability, loss or costs arises from, or is attributable to, any act or omission of the other party.
(h) Where a Claim is made against an Indemnified Party, Customer must:
(i) promptly notify the Supplier in writing of the Claim;
(ii) ensure the Claim is not settled and no consent to any judgment is entered without the Supplier’s prior written consent; and
(iii) ensure Supplier is given the sole control of the defence of the proceedings.
(i) Supplier’s liability under the indemnity in clause 5(e) will be reduced to the extent that:
(i) Customer’s failure to comply with clauses 5(h)(i) to 5(j)(ii) prejudices Supplier’s defence of the Claim;
(ii) the Claim is based on Customer breach of this Agreement;
(iii) the Claim is based on use of the Services in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by the Supplier; or
(iv) the infringement of a person’s Intellectual Property Rights results directly from any Customer Data.
(j) If at any time a Claim arises, or in the Supplier’s reasonable opinion is likely to arise, then the Supplier must at its own expense (and at the Supplier’s option) either:
(i) obtain for the Customer the right to continue using the items which are the subject of the Claim; or
(ii) modify, re-perform or replace the items which are the subject of the Claim so they become non-infringing.
(a) As consideration for the performance of the Services by Supplier, the Customer agrees to pay the Supplier for all undisputed fees & charges which the Customer incurs in accordance with this clause 6. Subject to Supplier’s delivery of the Services in accordance with this Agreement, the Customer also agrees to meet the payment terms and conditions set forth by the Supplier for Valid Tax Invoices raised to the Customer.
(b) The payment terms for Valid Tax Invoices of the Service(s) provided are payment within 7 days following the date of the Valid Tax Invoice supplied by the Supplier to the Customer.
(c) All fees & charges exclude GST (if any), which the Customer must pay on taxable supplies under the Agreement, subject to the Supplier providing a Valid Tax Invoice.
(d) The Customer may withhold payment of an invoice or part of an invoice that it disputes in good faith. The Customer must notify the Supplier of the dispute at the earliest reasonable opportunity, and pay any undisputed portion of the disputed Invoice by the due date set out in clause 6(b). Any disputed Invoice under this clause 6(d) must be dealt with in accordance with the process set out in clause 15.
(e) Careview may vary the fees & charges in this Agreement, with at least 30 days prior notice to the Customer:
(i) to reflect any increase or decrease in the charges we pay to a third party service provider;
(ii) to reflect any movement of 5% or more in an exchange rate that we use to convert changes in foreign currencies into Australian Dollars; or
(iii) in accordance with the terms of a Service Schedule.
7. Other Services
Careview agrees not to charge for any additional services that have not been agreed to in advance in writing by the Customer.
Where any amounts incurred and invoiced to the Customer are not paid within the payment terms specified, other than where an invoice has been disputed in accordance with clause 6(c), Careview reserves the right to:
(a) withhold all further Service(s) to the Customer;
(b) suspend any active Service(s) to the Customer;
(c) terminate this Agreement; and/or
(d) recover owed debts by the Customer at the Customer’s cost.
9. Technology Ownership and Confidentiality
(a) All Intellectual Property Rights which are owned by a party prior to the date of this Agreement shall remain owned by that party. All Intellectual Property Rights developed or created by a party in performing its obligations under this Agreement are owned by the party who develops or creates them.
(b) Clause 9(a) does not apply to Customer Data. The parties acknowledge and agree that all right, title and interest (including any Intellectual Property Rights) in the Customer Data (as between the parties) remains the property of the Customer.
(c) To the extent that the Learning Set Data comprises any Customer Data, then the Customer grants the Supplier a worldwide, non-exclusive, limited, non-transferrable, non-sublicensable perpetual, fully paid up and revocable licence to use, store, copy, modify, make available and communicate that Customer Data (on an anonymised and aggregated basis) for the Supplier’s own current and future internal research, analytical and training, and product development of the Software and Services purposes, and to conduct statistical analysis and identify (on an anonymised and aggregated basis) trends and insights at an industry level (and these rights will survive termination and expiration of this Agreement).
(d) Without limiting clause 9(c), Customer grants Supplier a non-exclusive, world-wide, limited, non-transferrable, sublicensable and revocable licence to use, store, copy, modify, make available and communicate the Customer Data for the sole purpose of providing the Services in accordance with this Agreement and only during the Term. Supplier must not otherwise use or make available the Customer Data.
(e) The Customer warrants and represents that it has all rights (including Intellectual Property Rights), consents and approvals that are necessary for the Supplier to use, store, copy, modify, make available and communicate the Customer Data as described in clauses 9(c) and 9(d).
(f) Excluding any Customer Data comprised in the Learning Set Data, on termination of this Agreement for any reason, Supplier must make sure that all records in Supplier’s possession or control which contain any Customer Data are either returned to Customer or at Customer’s option, deleted or destroyed in the presence of Customer’s nominated representative.
(g) In relation to any Personal Data that Customer discloses to Supplier under this Agreement, the Customer must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with this Agreement.
(h) Except as expressly permitted by non-excludable laws, the Customer must not or attempt to, or engage any third party to or attempt to, duplicate, change, create a derivative work of, tamper with, decompile, reverse engineer or otherwise in any way copy with any near similarity any part of the Software or Services, or use the Software or Services to develop other software, system or service.
(i) The Supplier grants Customer a licence to use the Software through the Hosting Infrastructure, as reasonably necessary for Customer to use the Services, for the Term of this Agreement. The licence granted under this clause includes the right to sublicence Customer’s customers to do those things permitted by the licence. The Software will be hosted by the Supplier and the Customer will not receive a copy of the Software to install itself.
(j) A party (Receiving Party) undertakes to keep confidential and not to disclose to any third party any Confidential Information of the other party (Disclosing Party), unless:
(i) the third party is a Related Entity, or a contractor or professional adviser under a duty of confidentiality, who needs to know such information for the purposes of enabling the Disclosing Party to perform its obligations or exercise its rights under this Agreement. The Receiving Party must ensure that any such recipient keeps such Confidential Information confidential on the same basis as the Receiving Party is required to under this clause 9;
(ii) the release of the Confidential Information is required by law;
(iii) the Confidential Information is in the public domain, without breach of this Agreement; or
(iv) the Receiving Party is authorised to make such disclosure in writing by the Disclosing Party.
(k) The Receiving Party may only use the Confidential Information of the Disclosing Party for the purpose of performing its obligations or exercising its rights under this Agreement.
(l) If the Receiving Party becomes aware of a suspected or actual breach of this clause by the Receiving Party, the Receiving Party must immediately notify the Disclosing Party and take reasonable steps required to prevent or stop the suspected or actual breach.
(m) Except as otherwise required or permitted by law or a licence granted under this Agreement, upon termination or expiry of this Agreement each party will promptly return to the other all materials and other property of the other, including a party’s Confidential Information, held by it or under its control.
(a) Each party may make and authorise media releases and other public announcements relating to or referring to the matters dealt with in this Agreement, including announcing that it has entered into this Agreement with the prior written consent of the other party (such consent not to be unreasonably or arbitrarily withheld).
(b) The Supplier may refer to the Customer as a customer in sales presentations, marketing vehicles and activities.
(c) The Customer agrees to work with a representative from the Supplier’s marketing team to develop a customer profile for use on the Supplier’s website and for other promotional activities at the Supplier’s discretion.
11. Customer’s Specific Obligations
(a) The Customer must take all reasonable steps to ensure that all information Customer provides to the Supplier in connection with the Services is complete and accurate. The Customer is responsible for maintaining and updating that information when any changes occur to ensure its on-going accuracy.
(b) It is the Customer’s responsibility to maintain the secrecy and security of all access information to the Service(s) and to keep its Careview account(s) secure against unauthorised access.
(c) If any unauthorised activity occurs within the Customer’s engagement with Services rendered by the Supplier, the Customer must immediately notify the Supplier. The Supplier commits to working with the Customer to protect access to the affected areas of the Services.
(d) The Customer agrees to only use the Supplier’s Services for purposes that are permitted by these terms and any applicable law, regulation or generally accepted practices or guidelines in their relevant jurisdiction. The Customer must not use the Supplier’s Services in a manner, or transmit, input or store any Customer Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
(e) The Customer agrees to only access the Supplier’s Services through the access methods provided by and promoted by the Supplier. The Customer must not access or attempt to access and use any of the Supplier’s Services:
(i) through any automated means including scripts, robots, or web crawlers without permission of the Supplier; or
(ii) that they are not authorised to use or using any access method they are not authorised to use.
(f) The Customer agrees that it is solely responsible for any breach of Customer’s obligations under this Agreement and for the consequences of any such breach. This includes breaches arising from unauthorised access to their account.
(a) In performing this Agreement, Careview must comply, and must make sure that all of its Personnel also comply, with all Privacy Laws in respect of all Personal Information collected, used, disclosed and otherwise handled by them under or in connection with this Agreement.
(b) Without limiting the foregoing, Careview must:
(i) collect, use, disclose and otherwise deal with Personal Information collected by or on behalf of the Supplier in the course of or in connection with this Agreement only for the purpose of performing and exercising the rights granted to it under this Agreement;
(ii) co-operate with any reasonable requests or inquiries made by Customer in relation to:
(A) the management of Personal Information by or on behalf of the Supplier;
(B) the parties’ compliance with any Privacy Law; and
(C) any interferences or alleged interferences with privacy by or behalf of the Supplier under or in connection with this Agreement;
(iii) take reasonable steps to ensure that Personal Information held by it is protected against misuse, loss, unauthorised access, unauthorised modification and unauthorised disclosure;
(iv) ensure that only authorised personnel have access to Personal Information collected by or on behalf of the Supplier in the course of or in connection with this Agreement and that personnel will only be authorised for access on a “need to know basis”;
(v) immediately notify Customer of any misuse or misappropriation of the Personal Information of which the Careview becomes aware;
(vi) make sure that all records in Careview’s possession or control which contain Personal Information collected by or on behalf of the Supplier in the course of provision of the services are at the end of the Term either returned to Customer or, at Customer’s option, deleted, sanitised or destroyed in the presence of a person duly authorised by Customer to oversee such deletion or destruction, except to the extent they contribute to Learning Set Data or the Supplier is required by applicable laws to preserve such records;
(vii) at all times comply with the reasonable directions of Customer in respect of all activities relating to or in connection with:
(A) the transfer outside of Australia of Personal Information held in connection with this Agreement; or
(B) the access to any Personal Information by any person outside of Australia at the time of such access, including where the person is the Supplier, Personnel of the Supplier a Related Entity of the Supplier;
(viii) not do anything with the Personal Information that will cause Customer to breach any Privacy Laws and co-operate with Customer to resolve any complaint made under any Privacy Laws; and
(c) Without limiting any other provisions of this Agreement, security measures referred to in clause 13(b)(iii) must include:
(i) information security management policies and procedures including incident management procedures to address information security events;
(ii) access controls, including password change controls, to ensure access to information resources is granted on a need to know and/or principle of least privileged basis;
(iii) device and software management controls to guard against viruses and other malicious or unauthorised software;
(iv) industry standard encryption safeguards as appropriate or as reasonably specified by Customer;
(v) information security awareness to ensure the Supplier’s Personnel and subcontractors’ understanding of their responsibilities in guarding against information security events and unauthorised use or access to information;
(vi) logging procedures to proactively record user and system activity for routine review; and
(vii) facility access and protection controls to limit physical access to information resources and guard against environmental hazards.
13. Termination and suspension
(i) by a party immediately on written notice to the other party (Defaulting Party) where the Defaulting Party:
(A) is in material breach of this Agreement and where the breach is capable of being remedied, has failed to remedy that breach within 10 Business Days of receiving written notice to remedy the breach;
(B) becomes subject to an Insolvency Event; or
(ii) by either party where a Force Majeure event prevents either party from complying with its obligations under this Agreement and that event lasts for more than two consecutive weeks.
(c) Each Service Schedule will terminate:
(i) on termination of this Agreement under clause 13(b);
(ii) on the expiry date (if any) specified in the Service Schedule; or
(iii) in accordance with any additional rights to terminate set out in the Service Schedule.
(d) Where a party has a right to terminate this Agreement under clause 13(b) it may, at its discretion and to the extent practicable, instead of terminating this Agreement in full terminate an affected Service Schedule and any Service Schedule that the terminating party considers to be associated with that affected Service Schedule.
(e) Termination or expiry of this Agreement or a Service Schedule does not affect either party’s rights and obligations accrued before that termination or expiry.
(f) Termination or expiry of this Agreement or a Service Schedule shall not alter the Customer’s obligation to pay for Services already provided by the Supplier in accordance with this Agreement.
(g) Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Customer’s access to and use of the Data Extraction Services and/or delete, edit or remove the relevant data if the Supplier considers that Customer or any Customer personnel have:
(i) undermined, or attempted to undermine, the security or integrity of the Data Extraction Services or its underlying systems;
(ii) transmitted, inputted or stored any data that breaches or may breach this Agreement or any third party right (including intellectual property rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
(iii) otherwise materially breached this Agreement,
until the conduct complained of has been remedied.
(h) Before exercising its rights under clause 13(g), Supplier must:
(i) notify Customer in writing of its intention to exercise its rights under clause 13(g) (Notice of Intention); and
(ii) providing Customer with a reasonable opportunity from the date of the Notice of Intention to remedy the breach.
(a) Careview will effect and maintain the following insurance at all times during the Term:
(i) a professional indemnity insurance policy with a reputable insurance company for not less than $10,000,000 per claim and in the aggregate; and
(ii) a public and products liability insurance policy with a reputable insurance company for not less than $10,000,000 per claim and in the aggregate.
Neither party will assign or transfer this Agreement or the rights under it without the prior written consent of the other party, provided that such consent shall not be arbitrarily withheld.
(a) All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in Schedule 2 (or at such other address as notified from time to time by the party changing its address).
(b) A notice under this clause 16 is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, when delivered to the addressee;
(ii) if posted, 6 Business Days (or 10, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or
(iii) if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully received in full and without error, on the day of transmission. Any notice by email must clearly state that such email constitutes notice pursuant to this Agreement, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.
17. Dispute Resolution
(a) The parties will first use their best endeavours to resolve any dispute under or in connection this Agreement by bona fide negotiation between the parties.
(b) If a dispute is unable to be resolved under clause 17(a) within 14 days or such longer period as the parties agree, either party may refer the dispute to mediation by notice to the other party, in which case:
(i) the mediation will be subject to Australian Commercial Disputes Centre Limited (ACDC) standard mediation agreement or rules (as the case may be);
(ii) the mediation will be conducted in Brisbane, Australia by an independent mediator and at a fee agreed to by each party;
(iii) the costs of the mediation will be borne in equal proportions by the parties;
(iv) if the parties cannot agree on the mediator and/or the mediator’s fee within 7 days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by CEO of the ACDC.
(c) If a dispute is unable to be resolved under clause 17(b) within 30 days of the referral of the dispute to mediation or such longer period as the parties agree or if the parties do not agree to refer the dispute then either party may commence legal proceedings.
(d) The parties must continue to perform their obligations under this Agreement while any dispute is being resolved in accordance with this clause 17.
(e) Nothing in this clause prevents either party from commencing court proceedings relating to any dispute arising from this Agreement at any time where that party seeks urgent interlocutory relief.
(f) Each party must pay its own internal and legal costs in relation to complying with this clause 17.
This Agreement is governed by and will be construed in accordance with the laws of the State of Queensland, Australia. Each party submits to the non-exclusive jurisdiction of the Courts of Queensland in relation to any dispute connected with this Agreement and courts entitled to hear appeals from them.
19. Force Majeure
Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:
(a) promptly notifies the other party and provides full information about the Force Majeure;
(b) uses best efforts to overcome the Force Majeure; and
(c) continues to perform its obligations to the extent practicable.
To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.
21. Independent contractor
The Supplier is an independent software supplier of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.
If a party becomes aware of a matter which is likely to affect materially the ability of that party to perform this Agreement, it will immediately notify the other party of it.
Any variation to this Agreement must be in writing and signed by both parties.
25. Entire agreement
This Agreement sets out everything agreed by the parties relating to the services, and supersedes and cancels anything discussed, exchanged or agreed prior to the date of this Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the date of this Agreement.
This Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter this Agreement by signing and emailing a counterpart copy to the other party.
Clauses 4, 5, 9(a) to 9(c) (inclusive), 9(f), 9(j) to 9(m) (inclusive), 12, 13(e), 13(f), 15 to 27 (inclusive), together with any other provision which by its nature survives termination or expiry of this Agreement, survives termination or expiry of this Agreement.
This Service Schedule is subject to, and forms part of, the Master Services Agreement between the Supplier and the Customer.
Capitalised terms used in this Service Schedule have the meanings given in the Agreement.
This Service Schedule is for an initial term of 1 month from the date at which the Agreement is executed by both parties (Initial Term).
Following the Initial Term, this Service Schedule will renew automatically in its entirety (unless a modification has been agreed by the parties) for successive periods of 1 month at the expiry of the Initial Term under the conditions set forth within this Service Schedule (Renewal Term) unless Customer notifies Supplier or the Supplier notifies the Customer that it does not wish to renew by providing 2 weeks written notice before the end of the Initial Term or Renewal Term.
This Service Schedule will be in force from the day it is signed by both parties.
2. Services Provided Under this Service Schedule
Under this Service Schedule the Supplier will provide the following:
2.1 Data Extraction Services
(a) Supplier will provide access to and use of Streamline via an API.
(b) Supplier will implement the Data Extraction Services in accordance with the Service Specifications.
(c) Supplier will provide a Data Extraction Service that extracts agreed data from the Customer’s invoices.
(d) At all times, the Supplier will ensure that Customer is supplied with Documentation that fully describes in a manner in which Customer can readily understand and apply, processes and procedures relevant to the provision of the Services (including Documentation specifically required by the Service Specifications). Customer may make as many copies of the Documentation as it requires, but may distribute or disclose the contents of the Documentation only as reasonably necessary for the purposes contemplated by this Agreement.
(e) Pricing is based on the following assumptions as to the average nature of a document:
(i) 1-2 pages on average and a maximum of 16 pages;
(ii) file size not exceeding 500KB on average and a maximum of 10 mb; and
(iii) file format of .jpeg, .pdf., or .png.
The Customer will use all reasonable efforts to:
(a) diagnose an incident as being attributable to a Defect or likely Defect with the Data Extraction Services; and
(b) if reasonably determined to be a Defect or likely Defect, obtain all relevant information, and promptly refer the incident to the Supplier as set out in clause
2.3 Upgrades and Releases
The Supplier will from time to time release updates to its systems that provide the Data Extraction Service or other relevant services (such as the support communication channels). Updates are typically intended to improve the service, enhance the resilience of; or extend functionality of the service. The Supplier will undertake update activities in a responsible and careful manner and provide information to the Customer of such updates where the Supplier believes such an update is relevant for the service provision.
2.4 Maintenance Requirements
As part of its service provision, the Supplier will undertake scheduled maintenance on its systems to ensure their continued smooth operation or to apply updates (Scheduled Maintenance). In most instances such maintenance should not affect the provision of service; however from time to time such maintenance requirements will require the service to be temporarily suspended.
(a) Unless otherwise agreed, Scheduled Maintenance will occur between 9pm and 12am Friday or Saturday evenings or otherwise during periods of the lowest utilisation of the Data Extraction Service to ensure minimal impact to the user base of the Data Extraction Services.
(b) In all cases of planned maintenance causing temporary service interruption, the Supplier will provide advance warning to the Customer of any such service interruption, typically 7 working days but otherwise at least 3 working days in advance of the work being done during the Scheduled Maintenance window. Information may include services that will be disrupted, the level of disruption etc.
(c) In emergency situations, the Supplier may be required to take Data Extraction Services offline with short or no warning (Emergency Maintenance). Emergency maintenance may be considered such as if there is a critical equipment or third party service failure, a significant cyber attack or other reasonable causes. In such cases, the Supplier will attempt to alert the Customer as soon as possible using reasonable endeavours including all information Customer reasonably requires detailing the emergency maintenance.
(d) The Supplier will perform maintenance tasks diligently and with prior preparation as far as reasonably possible to expedite any maintenance tasks that may cause service interruption.
3. Invoice Generation Timeline for Services
3.1 Usage Fees
For the Data Extraction Services, the Supplier will provide monthly invoices with a summary of charges incurred on a monthly basis from the commencement of the Initial Term. Invoicing will be for charges occurred in arrears of when they were incurred.
4. Service Levels
4.1 Quality of Servies
Subject to paragraph (d) below, Supplier will use reasonable endeavours to meet the following Data Extraction quality standards (Data Extraction Quality).
(a) Data Extraction Quality of more than 80% accuracy per measurement batch subject to measurement details outlined in paragraph (c) below. For clarity, accuracy is measured by comparing the predictions provided by the Supplier and the original document in accordance with the Service Specification.
(b) Data Extraction Quality is to be measured by manual verification over a volume of 250 documents randomly selected by the Supplier from the documents processed in the previous six months.
(c) The parties agree to conduct a good-faith review of the Data Extraction Quality service level requirement and measurement every six months from the Commencement Date of this service schedule.
4.2 Response Service Level Requirements
(a) Before notifying Supplier of a Defect, Customer must first use reasonable efforst to resolve the issue.
(b) Where the Customer notifies the Supplier of a Defect in the Data Extraction Services as set out in paragraph (a) (Service Request), Supplier will use reasonable endeavours to respond to the Defect according to the following Defect severity levels as reasonably determined by the Supplier:
|Severity Level||Description||Response Time|
|Severity Level 1||A major issue is where the Data Extraction Services are not available or are causing major problems, with significant business impact, to the Customer in the operation of their normal business||Within 30 minutes of the Service Request|
|Severity Level 2||A significant issue where a non-critical function is not operating or where a critical issue affects a minority of the Customer’s business operations.||Within 60 minutes of the Service Request|
|Severity Level 3||A minor issue where a non-critical function is not operating or where service degradation is occurring with limited customer impact.||Within 4 hours of the Service Request|
|Severity Level 4||Routine minor technical errors that have minimal impact on service delivery.||Within 1 Business Days of the Service Request|
(i) Response means notification by the Supplier to Customer that the Supplier has received a Service Request relating to the Defect, has allocated one or more people to assess the Defect, and that those people have started assessing the Defect.
(d) The Response times above:
(i) are subject to the Customer providing all information and access (including access to facilities, systems and personnel) as reasonably required by the Supplier to respond to the issue; and
(ii) do not apply where the Defect is attributable to a breach of the Agreement by the Customer, including use of the Data Extraction Services by Customer personnel in a manner or for a purpose not reasonably contemplated by the Agreement or the Documentation, and not authorised in writing by the Supplier.
(e) The Customer must log a Service Request via the following method for all issues:
Level 3 and Level 4 issues will be responded to during normal business hours.
Level 1 and Level 2 issues will be responded to on the day they are received.
To assist our team to trouble shoot the issue, please attach an example invoice.(D4h