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Terms of Use

The Platform is supplied by Pryzm Health Pty Ltd ABN 56 627 926 694 of Unit 30609, 9 Lawson St, Southport, Queensland, Australia (‘we’ or ‘us’ or ‘our’).

The terms ‘You’ and ‘Your’ refer to the company, business, individual or other legal entity who is a party to this agreement, the details of which are provided in Your Account (defined below).

Our platform allows You to manage the process and workflow associated with conducting a Clinical Trial (‘Platform’).

Your access to, and use of, the Platform is governed by these Terms of Use. Please read and review this agreement carefully. By clicking the ‘accept’ icon, You indicate to us that You have read and understood the terms of this agreement and You agree to abide by them. If You do not agree to the terms of this agreement, do not click the ‘accept’ icon.

These Terms of Use were last updated on 25 March 2020.

1. Term

1.1. This agreement takes effect on the Commencement Date and, subject to early termination in accordance with clause 13, continues on a year-to-year basis unless terminated:

1.1.1. by us on no less than 30 days’ notice before the commencement of the following year; or

1.1.2. by You on 30 days’ notice after our notice to you reminding you of your right to terminate this agreement in accordance with this clause,
(Term).

2. Requirements

2.1. To use the Platform, You must:

2.1.1. create an Account with a unique username and password;

2.1.2. in Your Account, provide Your business’s full name, ABN and contact details including a valid e-mail address, and any other details we may request; and

2.1.3. pay the Annual Fee using one of our third-party payment providers in accordance with clause 5.

2.2. If our third-party payment providers do not allow You to use their services, You will not be able to use the Platform.

3. The Platform

3.1. Subject to Your compliance with the terms of this agreement, we grant to You the non-exclusive, non-transferrable, non-sub-licensable right to use the Platform and Our Materials during the Term for the purpose of conducting Clinical Trials.

3.2. You must:

3.2.1. not assign, sublicense, license, sell, lease, rent or otherwise make the Platform or Our Materials available to third parties (other than Authorised Users) or use the Platform or Our Materials to provide outsourced or bureau services to any third party;

3.2.2. ensure that any access to and use of the Platform and Our Materials is solely for the purpose of Your Clinical Trial(s); and

3.2.3. ensure that both You and Your personnel take all reasonable steps to safeguard access to the Platform.

3.3. All rights not expressly granted to You under this agreement are reserved to us.

3.4. You must not, and must ensure that Your Authorised Users do not:

3.4.1. copy, modify, translate, enhance or adapt the Platform or Our Materials;

3.4.2. copy the look and feel, layout and design of the Reports or any visual or graphical elements used in the Reports;

3.4.3. attempt to reverse engineer, disassemble, or decompile the Platform or determine or attempt to determine any source code, algorithms, methods or techniques used or embodied in the Platform;

3.4.4. advertise or attempt to create any competitive product or any service which has features or functionality the same as or similar to the features and functionality of the Platform or copy any features, functions, graphics or interfaces of the Platform;

3.4.5. exploit or use the Platform or Our Materials otherwise than as permitted under this agreement;

3.4.6. attempt to create any competitive product or any service which has features or functionality the same as or similar to the features and functionality of the Platform or copy any features, functions, graphics or interfaces of the Platform;

3.4.7. transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable;

3.4.8. infringe the Intellectual Property Rights of any person;

3.4.9. interfere with or disrupt the Platform, or other systems, equipment or networks connected to the Platform;

3.4.10. remove any product identification, proprietary, copyright or other notices contained in the Platform, Our Materials or the Reports;

3.4.11. introduce malware, virus or any other harmful code to the Platform;

3.4.12. use the Platform in a manner which causes damage to the Platform any of our equipment or infrastructure, or our reputation or brand;

3.4.13. circumvent or disclose the user authentication or security of the Platform; or

3.4.14. make any use of the Platform, Our Materials or the Reports that violates any applicable law.

3.5. You acknowledge and agree that:

3.5.1. You and Your Authorised Users are solely responsible, at Your cost, for providing all equipment, and facilities and connectivity necessary to use and access the Platform (Your Systems);

3.5.2. our ability to provide the Platform will be dependent on You complying with Your obligations to ensure that Your Systems are compatible with, and remain compatible with, the Platform.

3.6. We reserve the right to monitor use of the Platform by You or any other person.

3.7. We will use commercially reasonable security measures consistent with industry standards (such as password and firewall protection and encryption) in providing the Platform.

3.8. You further acknowledge that if You choose to place Your Data on the Platform, You do so at Your own risk. We do not access Your Data except in accordance with clause 5. You are solely responsible for backing up Your Data.

3.9. We will use reasonable endeavours to provide You with assistance to help You use the Platform by e-mail during Business Hours (Support).

3.10. We will provide the Support as soon as reasonably practical having regard to various factors including the availability of our resources and personnel, Your availability and time zones.

3.11. We may, on reasonable notice to You, change or modify the Platform at any time to improve the general functionality of the Platform. You acknowledge that we are not obliged to change or modify the functionality of the Platform under this clause.

Access

3.12. We agree that the license granted under clause 3.1 will extend to Authorised Users subject to the following terms:

3.12.1. before an Authorised User is provided with access to the Platform and Our Materials, that Authorised User must accept the terms of our Authorised User Agreement;

3.12.2. an Authorised User’s access to the Platform and Our Materials will be terminated or suspended if Your access to the Platform is terminated or suspended.

3.13. You:

3.13.1. must ensure that each Authorised User complies with the terms of this agreement and the Authorised User Agreement; and

3.13.2. acknowledge that You will be responsible for the acts and omissions of each Authorised User as if they were Your acts and omissions.

4. Your Data

4.1. You acknowledge and agree that the control and possession of Your Data will solely remain with You at all times and we will have no responsibility in relation to Your Data.

4.2. You grant to us the non-exclusive, royalty-free licence to:

4.2.1. use, reproduce, modify, upload, display, publish, communicate, distribute or otherwise make available Your Data for the purpose of us providing the Platform to You and Your Authorised Users;

4.2.2. use Your Data for our internal business purposes, including further developing the Platform including improving its functionality and algorithms.

4.3. You acknowledge that depersonalised aggregated data collected from the Platform may be provided by us to third parties.

4.4. You acknowledge that You are responsible for:

4.4.1. entering Your Data into the Platform;

4.4.2. the content of Your Data supplied by You; and

4.4.3. complying with the Privacy Act 1988 (Cth) whether or not the Act applies to You and all other applicable laws, rules and regulations in relation to Your Data.

4.5. You warrant that You have obtained all permissions necessary for us to deal with Your Data as contemplated by this agreement and that we are lawfully able to deal with Your Data as contemplated by this agreement.

4.6. You indemnify us in relation any loss, damage, costs or expenses, whether direct or indirect, we suffer or incur as a result of Your breach of clause 5.5.

4.7. We may remove any of Your Data if we reasonably consider that it breaches any law or third party rights or otherwise does not comply with the terms of this agreement.

4.8. Where either party becomes aware of a Data Breach:

4.8.1. that party must immediately notify the other party of the Data Breach (Data Breach Notice);

4.8.2. the parties will meet as soon as practicable, and in no event more than 24 hours after provision of the Data Breach Notice, to discuss in good faith appropriate next steps regarding investigation and handling of the Data Breach, including the parties’ respective responsibilities; and

4.8.3. each party must provide all reasonable assistance to the other to ensure each party is in compliance with its obligations under applicable privacy legislation, including the Privacy Act 1988 (Cth).

5. Fees

5.1. We will charge You and You will pay the Access Fee yearly in advance to access the Platform. The first payment will be charged on the Commencement Date.

5.2. We may increase our annual Access Fee for the following year on providing no less than 30 days’ notice to You prior to commencement of that following year.

5.3. We may provide additional features and functionality (including the ability to add further users to the Platform) as requested by You in Your Profile (Additional Services). We will charge You for the Additional Services when You request them.

5.4. We use third parties to process payments on our behalf. You may be required to accept a third-party payment provider’s terms and conditions before You are able to pay us using their service. If we are unable to successfully process any payment, we or our third-party payment provider will notify You and we may temporarily suspend Your access and Your Authorised Users’ access to the Platform until such time as You pay any outstanding payments.

5.5. You warrant that the payment details You provide to our third-party payment provider are current, correct and complete, that You are an authorised user of the account or credit or debit card given to our provider and Your nominated account or credit or debit card will cover the Access Fee.

5.6. Amounts specified in this agreement are exclusive of GST. Where a party (Supplier) makes a taxable supply to another party (Receiver) under or in connection with this agreement, the Receiver must pay to the Supplier an additional amount equal to the GST payable on the supply. Terms used in this clause 5.6 have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

6. Intellectual Property

6.1. You acknowledge that:

6.1.1. we own all Intellectual Property Rights in the Platform, Our Materials and any Feedback;

6.1.2. this agreement does not assign to You any Intellectual Property Rights in the Platform, Our Materials or any Feedback.

6.2. You acknowledge that the functionality of the Platform includes the generation of reports (Reports). We own the Intellectual Property Rights in the look and feel, layout, design, visual elements and graphical elements used in the Reports. You agree not to reproduce the Reports other than in connection with the conduct of the relevant Project managed through the Platform.

6.3. You acknowledge that any Feedback provided to us may involve the creation of Intellectual Property Rights and that we may incorporate the Feedback (including any Intellectual Property Rights therein) into future versions of the Platform and Our Materials at our sole discretion.

6.4. You:

6.4.1. assign to us, all right, title and interest (including all Intellectual Property Rights) in any Feedback upon the date of creation;

6.4.2. will do all things, including signing documents, as reasonably requested by us, in order to perfect such assignment.

6.5. You acknowledge that any Feedback provided will not necessarily result in changes to the Platform or Our Materials provided under this agreement or in future versions of the Platform or Our Materials.

6.6. You must not use, publish or disclose any Feedback to any third party.

7. Confidential Information

7.1. Each party must:

7.1.1. take all such reasonable precautions as may be necessary to maintain the confidentiality of the Confidential Information of the other party; and

7.1.2. only disclose the Confidential Information of the other party to those of its Representatives who need to know for the purposes of this agreement.

7.2. Without limiting clause 7.1, each party must not, without the prior written consent of the other party:

7.2.1. communicate or make available any Confidential Information of the other party to any person;

7.2.2. use the Confidential Information of the other party for any purpose other than for the purposes of this agreement; or

7.2.3. use the Confidential Information of the other party for its own gain or in any manner which may cause loss to the other party.

7.3. The parties’ obligations under this clause 7 do not apply to any Confidential Information which a party can show:

7.3.1. was in its possession at the time of disclosure to it and was not acquired in breach of an obligation of confidence or under an obligation of confidence;

7.3.2. is in the public domain; or

7.3.3. is acquired from a third party, provided that it was not acquired by the third party unlawfully or in breach of an obligation of confidence.

7.4. A party may disclose Confidential Information to the extent required by law where the disclosure is required by the operation of law or in order to comply with any rules or regulations of any internationally recognised securities exchanges.

7.5. Notwithstanding anything else to the contrary in this agreement, we may use Your Confidential Information (including Confidential Information in Your Data) to the extent necessary to:

7.5.1. allow us to incorporate the Feedback into future versions of the Platform and Our Materials in accordance with clause 6.3 above;

7.5.2. develop, enhance, use and commercially exploit Your Data in accordance with the terms of this agreement and any Feedback which is incorporated in the Platform or Our Materials.

8. Acknowledgements

8.1. You acknowledge that:

8.1.1. You have been solely responsible for Your selection of the Platform to achieve Your intended results and for Your use of and the results obtained from Your use of the Platform;

8.1.2. You are responsible for the accuracy of Your Data entered into the Platform;

8.1.3. we provide no warranty or assurance that use of the Platform will result in any particular outcomes including outcomes related to health, efficiency or productivity;

8.1.4. You are solely responsible for Your access to the Platform through Your internet services provider and that we will not be responsible for any connectivity issues or any damage to equipment used by You and Your Authorised Users to access the Platform;

8.1.5. the Platform is hosted by a third party and we are not responsible for the unavailability of the Platform or Your Data; and

8.1.6. the Platform contains content (e.g. Your Data and data provided by Your Authorised Users), over which we exercise no editorial control.

9. Your Warranties

9.1. You warrant that You:

9.1.1. have all the rights and authority necessary to enter into and perform Your obligations under this agreement;

9.1.2. Your Data will not infringe or breach the rights of any third party; and

9.1.3. You and Your Authorised Users will comply with all requirements and restrictions under this agreement, as well as all applicable laws, rules and regulations.

10. Exclusions and Limitations of Liability

10.1. All terms, warranties and representations not expressly stated in this agreement, are excluded from this agreement to the extent permitted by law.

10.2. You acknowledge that to the extent permitted by law, we are not liable to You or any third party for any loss or damage in connection with Your use of the Platform or any interaction, transaction or relationship (legal or otherwise) arising through use of the Platform.

10.3. To the extent that any consumer guarantee under the Australian Consumer Law applies to goods or services provided by us under this agreement, our liability is limited, at our option, to:

10.3.1. in the case of goods, replacing or repairing the goods or supplying equivalent goods, or paying for the cost of replacing or repairing the goods or of acquiring equivalent goods; and

10.3.2. in the case of services, resupplying the services, or paying the cost of resupplying the services.

10.4. Except as provided in clause 10.3, our maximum total aggregate liability for all loss, damage, cost or expense arising under or in relation to this agreement, whether in contract, tort (including negligence), equity, under statute or on any other basis is limited to the Access Fees received by us under this agreement in the 12 month period preceding the event giving rise to the liability.

10.5. To the maximum extent permitted by law, we are not liable for any:

10.5.1. lost profits, lost revenue, loss of opportunity, loss of data, loss of management time or failure to realise anticipated savings, property damage, loss of or damage to reputation or goodwill, personal injury, loss of life, accident, harm, incurred or suffered by a person; or

10.5.2. special, indirect, incidental or consequential damages, losses, costs, or expenses.

10.6. Our liability to You under or in relation to this agreement is reduced to the extent that Your acts or omissions, or those of a third party, contributed to or caused the liability.

10.7. You indemnify us from and against any damage, loss, cost, expense, harm or liability incurred by us arising out of or in connection with or in respect of any claim, demand, suit, action or proceeding by any person against us where such damage, loss, cost, expense, harm or liability arose out of, in connection with, or in respect of:

10.7.1. any act or omission (including negligence) of You, Your employees, contractors or agents in relation to a Project managed through the Platform; and

10.7.2. any claim that the use of Your Data as contemplated in this agreement has breached the Privacy Act 1988 (Cth) or infringes any third party’s rights.

11. Suspension

11.1. We may temporarily suspend Your access and Your Authorised Users’ access to the Platform if:

11.1.1. we reasonably consider that You, any Authorised User or any person who accesses the Platform through You are using the Platform for an unlawful or improper purpose;

11.1.2. You are in breach of any obligations under this agreement; or

11.1.3. without limiting clause 11.1, You fail to pay any amount when due under this agreement.

12. Termination

12.1. Either party may terminate this agreement by notice to the other party if the other party commits a material breach of a term of this agreement and the breach has not been remedied within 14 days after receiving notice of the breach.

12.2. Notwithstanding clause 12.1, we may terminate this agreement immediately by notice to You if You:

12.2.1. or any of Your employees or agents, have used the Platform or Our Materials in breach of this agreement;

12.2.2. we know of or suspect any fraudulent or dishonest activity in relation to Your Account or Your use of the Platform or Our Materials;

12.2.3. become, threatens or resolves to become or are in jeopardy of becoming subject to any form of insolvency administration;

12.2.4. cease or threaten to cease conducting business in the normal manner except through amalgamation or merger; or

12.2.5. enter into or propose to enter into a scheme, composition or arrangement with any of Your creditors.

12.3. On termination or expiry of this agreement:

12.3.1. Your access (and Your Authorised User’s access) to the Platform will be terminated; and

12.3.2. You must pay us any outstanding fees due under this agreement.

12.4. You must give notice to us no later than 7 days after termination that You wish to export and retrieve Your Data. We will assist You with exporting and retrieving Your Data subject to You paying the applicable fees which will be calculated on a time and materials basis.

12.5. The obligations of the parties under this agreement that by their nature would continue beyond expiration or termination of this agreement survive any expiration or termination.

13. Force majeure

13.1. We will not be liable to You if the performance of our obligations to You is delayed, impeded or prevented by any act or event beyond our control.

13.2. If we are unable to perform our obligations, we must use reasonable endeavours to resume performance in accordance with this agreement as soon as possible.

14. Dispute resolution

Procedure for dispute resolution

14.1. The parties agree that a dispute arising under this agreement will be dealt with as follows:

14.1.1. the party claiming that there is a dispute will give the other party a notice setting out the nature of the dispute;

14.1.2. within 10 Business Days, each party will nominate a representative not having any prior involvement in the dispute;

14.1.3. the representatives will try to settle the dispute by direct negotiation between them;

14.1.4. if a resolution is not reached within a further 20 Business Days (Negotiation Period), the dispute must be submitted to mediation. The mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of the end of the Negotiation Period, by a person authorised by the Chair of Resolution Institute or the Chair’s designated representative;

14.1.5. the mediation will be held in New South Wales;

14.1.6. the Resolution Institute Mediation Rules current as at the date of the dispute will apply to the mediation; and

14.1.7. if a resolution is not reached within 20 Business Days of a mediator being appointed, either party may commence legal proceedings.

14.2. This clause does not apply to legal proceedings by either party seeking urgent interlocutory relief.

15. Notices

16.1. Any notice You send to us must be sent to contact (at) pryzm.health. Any notices we send to You will be sent to the email address You have provided to us in Your Account.

16.2. A notice, consent, approval or other communication under this agreement:

16.2.1. must be sent by e-mail using the details described in clause 16.1 (or such replacement details as a party may provide); and

16.2.2. is treated as having been given and received when emailed, or if the sender receives a computer generated receipt of notification of the delivery, on receipt of the notification acknowledging receipt of the email.

16. General Provisions

Relationship of the parties

16.1. Nothing in this agreement creates an agency, partnership, joint venture or employment relationship between the parties or any of their respective employees, agents or contractors.

Amendments

16.2. This agreement may only be varied in writing and signed by both parties.

Entire Agreement

16.3. This agreement constitutes the entire understanding between us and You to the exclusion of any previous communications, representations or agreements between the parties whether verbal or written.

Assignment

16.4. We may assign our rights and novate our obligations under this agreement at any time by notice to You.

16.5. You may only assign a right under this agreement with our prior written consent.

16.6. For the purposes of clause 16.5, You are deemed to have assigned Your rights under this agreement if the management or control of You is transferred to any person other than those persons who manage or control You as at the date of this agreement.

Further assurance

16.7. Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this agreement and all transactions incidental to it.

Severance

16.8. If any part of this agreement is void or unenforceable that part will be severable from and will not affect the enforceability of the remaining provisions. If such a severance goes to the essence of this agreement, either party may terminate this agreement immediately by notice.

Waiver

16.9. A failure or delay by a party to exercise any right or remedy it holds under this agreement or at law does not operate as a waiver of that right.

Governing law and jurisdiction

16.10. This agreement is governed by the laws in force in the State of Queensland. The parties submit to the non-exclusive jurisdiction of the Courts of Queensland.

17. Definition and Interpretation

17.1. In this agreement, the following definitions apply:

Access Fees means the subscription fees notified to You during the creation of Your Account as varied from time to time in accordance with clause 5.2.

Account means the user account created by You in order to access the Platform which contains, among other things, Your business or company name and contact details.

Authorised Users means Your employees, representatives, agents, contractors, consultants and Project participants who You permit to access and use the Platform subject to the terms of the Authorised User Agreement.

Authorised User Agreement means the Authorised User Agreement located at [insert website link].

Business Hours means 9am to 5pm on Business Days, Australian Eastern Standard Time.

Commencement Date means the date we grant You access to the Platform.

Confidential Information of a party means any information of whatever kind disclosed by that party to the other party in relation to this agreement that:

(a) is by its nature confidential; or

(b) is designated by a party as confidential; or

(c) the receiving party knows or reasonably ought to know is confidential,

and in our case includes the Access Fees, and in Your case includes Your Data.

Data Breach means, in our case, any:

(a) unauthorised access to;

(b) unauthorised disclosure of; or

(c) loss of,

Your Data, and, in Your case, any:

(a) unauthorised access to the Platform; or

(b) unauthorised disclosure of or loss any data on the Platform.

Data Breach Notice has the meaning given to it in clause 4.8.1.

Feedback means any and all feedback, comment, critique and analysis arising as a result of Your use (including Your Authorised Users’ use) of the Platform and Our Materials, including any ideas for improvements or new functionality.

Intellectual Property Rights means all patents, trade marks and designs (whether registered or not), copyright, know-how, trade secrets and circuit layout rights.

Our Materials means any materials (not including Your Data) produced by, on behalf of, or with Us related to the performance of this agreement.

Platform has the meaning given to it in the preamble to this agreement.

Project means a process, project, workflow or task and includes a clinical trial.

Representatives means a party’s officers and employees.

Term has the meaning given to it in clause 1.1.

Your Data means all data, content, materials and information relating to You and Your operations, Projects, personnel and Project participants whether entered, stored, generated by or processed through the Platform.

Your Systems has the meaning given to it in clause 3.5.1.

17.2. In this agreement, unless the context otherwise requires:

17.2.1. the singular denotes the plural and vice versa;

17.2.2. other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;

17.2.3. a person includes a company, trust, partnership, joint venture, association, body corporate or governmental agency;

17.2.4. a reference to a thing includes a part of that thing;

17.2.5. a reference to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision; and

17.2.6. a reference to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced.