This agreement is dated 26 June 2026.
PARTIES
Episap, the operator of the Episap clinical MDT service (Supplier)
the customer identified in the applicable order form, subscription record or other written ordering document (Customer)
BACKGROUND
The Supplier is the proprietor of the Services.
The Customer desires to access and use the Supplier's Services for its internal business purposes.
The Supplier agrees to provide access to the Customer to use the Supplier's Services in accordance with the terms and conditions of this Agreement.
AGREED TERMS
Definitions and interpretation
Definitions
Agreement: this Software as a Service agreement between the Supplier and the Customer.
Aggregated Statistics: data and information related to the Customer's use of the Services that is used by the Supplier in an aggregate and de-identified manner, including to compile statistical and performance information related to the provision and operation of the Services.
APP: an Australian Privacy Principle as defined in the Privacy Act.
APP Entity: the definition given in the Privacy Act.
ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
Authorised User: the Customer's employees, consultants, contractors, and agents:
who are authorised by the Customer to access and use the Services under the rights granted to the Customer under this Agreement; and
for whom access to the Services has been purchased.
Business Day: a day on which banks are open for business in Sydney, other than a Saturday, Sunday or public holiday in that city.
Commencement Date: the date this Agreement is to commence set out in Part 1 of Schedule 1.
Confidential Information: includes the following:
any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of a party or any of its Related Bodies Corporate, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customer lists.
Customer Data.
the terms of this Agreement.
Corporations Act: the Corporations Act 2001 (Cth).
Customer Data: other than Aggregated Statistics, any information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorised User through or in connection with the Services, including patient-case information and meeting content entered by authorised users.
Data Breach Investigation: an investigation as required to be carried out in accordance with clause 13.4(c).
Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information the Supplier has collected, held, used or disclosed in the course of or relating to this Agreement.
Documentation: the Supplier's user manuals, handbooks and guides relating to the Services provided by the Supplier to the Customer either electronically or in hard copy form.
Eligible Data Breach: an eligible data breach as that term is defined in the Privacy Act.
Feedback: any communications or materials provided by the Customer or an Authorised User to the Supplier by mail, email, telephone or otherwise, suggesting or recommending changes to the Supplier IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions or the like.
Fees: the fees as specified in Part 2 of Schedule 1.
Force Majeure Event: the definition given in clause 15.9(a).
Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
GST: the definition given to that term in the GST Act.
GST Act: the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Law: the definition given to that term in the GST Act.
Initial Term: the definition given in clause 12.1.
Insolvency Event: the occurrence of any one or more of the following events in relation to a party:
it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
any step is taken to appoint a receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;
an administrator is appointed to it under section 436A, section 436B or section 436C of the Corporations Act;
a controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;
an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
any step is taken to enter into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;
a notice is issued under section 601AA or section 601AB of the Corporations Act and not withdrawn or dismissed within 15 Business Days;
a writ of execution for an amount in excess of $10,000 is levied against it or a material part of its property that is not dismissed within 15 Business Days;
it ceases to carry on business or threatens to do so, other than in accordance with the terms of this Agreement; or
anything that occurs under the law of any jurisdiction that has a substantially similar effect to any of the events set out in paragraphs (a) to (k) of this definition.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, topography rights and database rights, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist now or in the future, anywhere in the world.
Interest Rate: for a given date, the daily cash rate set by the Reserve Bank of Australia and displayed at or about 10:30 am (Sydney time) on that date on the Reserve Bank of Australia website.
Notice: the definition given in clause 14.1.
Personal Information: personal information as that term is defined in the Privacy Act.
Privacy Act: the Privacy Act 1988 (Cth).
Privacy Policy: the Supplier's privacy policy detailed on the Supplier's website located at https://episapient.com/privacy as amended from time to time.
Related Body Corporate: the definition given in section 9 of the Corporations Act.
Renewal Term: the definition given in clause 12.2.
Security Measures: the Supplier's data security measures detailed in Schedule 2 or on the Supplier's website located at https://episapient.com as amended from time to time.
Sensitive Information: sensitive information as that term is defined in the Privacy Act.
Service Levels: the service levels described in Schedule 3 as amended from time to time.
Services: the Software as a Service offering described in Part 4 of Schedule 1 supplied (or to be supplied) by the Supplier to the Customer as amended, updated, altered, modified or enhanced from time to time.
Service Suspension: any suspension described in clause 2.6(a), clause 2.6(b) or clause 2.6(c).
Supplier IP: any and all Intellectual Property Rights in the Services and the Documentation and any templates, formats, dashboards and the like as modified or improved from time to time that are accessible by or generated from the Customer's use of the Services, excluding any Customer Data. For the avoidance of doubt, Supplier IP includes any Aggregated Statistics and any information, data, or other content derived from the Supplier's monitoring of the Customer's access to or use of the Services, but does not include Customer Data.
Support Services: the services described in Schedule 4 as amended from time to time.
Term: the definition given in clause 12.1.
Third-Party Products: any third-party products described in Part 5 of Schedule 1 provided with or incorporated into the Services.
Interpretation
In this Agreement, the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
References to clauses, Schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the Schedules, annexures, appendices, attachments and exhibits to, this Agreement.
References to parties are references to the parties to this Agreement.
References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.
Words denoting the singular include the plural and words denoting the plural include the singular.
Words denoting any gender include all genders.
The word "person" includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.
A reference to a law includes:
legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
any constitutional provision, treaty or decree;
any judgment;
any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
A reference to time is a reference to Sydney time unless otherwise specified.
A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
If any act is required to be performed under this Agreement on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day.
A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
Specifying anything in this Agreement after the terms "include", "including", "includes", "for example", "such as" or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
This Agreement includes all Schedules, annexures, appendices, attachments and exhibits to it.
A reference to "writing" or "written" includes email.
References to a document in "agreed form" are to that document in the form agreed by the parties and initialled by them or on their behalf for identification.
Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
An agreement other than this Agreement includes a deed, undertaking or legally enforceable agreement or understanding whether in writing or not.
If there is any conflict between the terms of the main body of this Agreement and the terms of this Agreement's Schedules and attachments, the terms of the main body of this Agreement will prevail.
Access and use
Right to access
Subject to the terms and conditions of this Agreement, the Supplier grants the Customer a non-exclusive, non-transferable right for its Authorised Users to access and use the Services during the Term, solely for the Customer's internal use in accordance with the Documentation.
Provision of access
The Supplier will provide to the Customer the necessary passwords and network links or connections to allow the Customer to access the Services.
Licence grant
Subject to the terms and conditions contained in this Agreement, the Supplier grants to the Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with clause 15.3) licence to use the Documentation during the Term solely for the Customer's internal purposes in connection with its use of the Services.
Use restrictions
The Customer warrants and represents that, in accessing or using the Services, it will not, and will not permit Authorised Users to:
copy, modify or create derivative works of the Services or Documentation, in whole or in part;
rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or Documentation;
reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;
remove any proprietary notices from the Services or Documentation; or
use the Services or Documentation in any manner or for any purpose that infringes, or involves an unauthorised use or disclosure of Intellectual Property Rights or other rights of any person, or that violates any applicable law.
Reservation of rights
The Supplier reserves all rights not expressly granted to the Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to the Customer or any third party any Intellectual Property Rights or other right, title or interest in or to the Supplier IP.
Suspension of access
Notwithstanding anything to the contrary in this Agreement, the Supplier may temporarily suspend the Customer's or one or more Authorised User's access to any portion or all of the Services if:
the Supplier reasonably determines that:
there is a threat or attack on any of the Supplier IP;
the Customer's or any Authorised User's use of the Supplier IP disrupts or poses a security risk to the Supplier IP or to any other customer or vendor of the Supplier;
the Customer, or any Authorised User, is using the Supplier IP for fraudulent or illegal activities; or
the Supplier's provision of the Services to the Customer or any Authorised User is prohibited by applicable law;
any vendor of the Supplier has suspended or terminated the Supplier's access to or use of any third-party services or products required to enable the Customer to access the Services; or
in accordance with clause 5.2.
Obligations of Supplier: Service Suspension
The Supplier will use reasonable endeavours to:
provide Notice of any Service Suspension to the Customer and to provide updates regarding resumption of access to the Services following any Service Suspension; and
resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
Collection and use of Aggregated Statistics
Notwithstanding anything to the contrary in this Agreement, the Customer acknowledges and agrees that the Supplier:
may monitor the Customer's use of the Services and collect and compile Aggregated Statistics based on Customer Data input into the Services;
retains all right, title, interest and Intellectual Property Rights in the Aggregated Statistics; and
may make Aggregated Statistics publicly available in compliance with applicable law and use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify the Customer, any patient, any Authorised User or the Customer's Confidential Information.
Customer responsibilities
Customer responsible for use of Services and Documentation
The Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by the Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
Customer responsible for Authorised Users
Without limiting the generality of clause 3.1, the Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement will be deemed a breach of this Agreement by the Customer.
Customer to notify Authorised Users
The Customer must use reasonable endeavours to make all Authorised Users aware of this Agreement's provisions as applicable to such Authorised User's use of the Services, and must cause Authorised Users to comply with such provisions.
Third-Party Products
The Supplier may make Third-Party Products available to the Customer from time to time and such Third-Party Products are subject to their own terms and conditions. The Supplier does not control and has no liability for Third-Party Products.
Service Levels and Support Services
Service Levels
The access rights granted under clause 2.1 entitle the Customer to the Service Levels for the Term.
Support Services
The access rights granted under clause 2.1 entitle the Customer to the Support Services during the Term.
Fees and payment
Fees
The Customer must pay the Supplier the Fees as set forth in Part 2 of Schedule 1 without offset or deduction.
Suspension for failure to make payment
If the Customer fails to make any payment when due, and such failure continues for 14 days or more, without limiting the Supplier's other rights and remedies, the Supplier may suspend the Customer's and its Authorised Users' access to any portion or all of the Services until such amounts are paid in full.
Goods and services tax
Definitions
Words used in this clause 6 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
GST
Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.
To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the Customer is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
The Customer must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
Whenever an adjustment event occurs in relation to any taxable supply to which clause 6.2(b) applies:
the Supplier must determine the amount of the GST component of the consideration payable; and
if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
Reimbursements
If either party is entitled under this Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.
Confidential Information
Confidentiality obligations
Each party (in this clause 7 a Recipient) must keep secret and confidential and not disclose any Confidential Information that is disclosed to the Recipient by the other party, its representatives or advisers except:
where the information is in the public domain as at the date of this Agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, provided that the Recipient has, to the extent practicable having regard to those obligations and the required timing of the disclosure, consulted with the other party as to the form and content of the disclosure;
where the disclosure is expressly permitted under this Agreement;
if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this Agreement or to conduct their business generally, in which case, the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person; or
if the party to whom the information relates has consented in writing before the disclosure.
Use only in accordance with agreement
The Recipient must not use the other party's Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement.
Ensuring compliance
Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient's obligations under this clause 7.
Intellectual property
Ownership of Supplier IP
The Customer acknowledges that the Supplier owns all right, title and interest, including all Intellectual Property Rights, in and to the Supplier IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title and interest, including all Intellectual Property Rights, in and to the Third-Party Products.
Ownership of Customer Data
The Supplier acknowledges that the Customer owns all right, title and interest, including all Intellectual Property Rights, in and to the Customer Data.
Limited licence to Customer Data
The Customer grants to the Supplier a non-exclusive, royalty-free, worldwide licence to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for the Supplier to provide, secure and support the Services to the Customer, and to use de-identified Aggregated Statistics as permitted by this Agreement.
Feedback
The Customer acknowledges and agrees that the Supplier is free to use, without any attribution or compensation to any party, any Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
Assignment of Feedback
The Customer hereby assigns to the Supplier all of its right, title and interest in and to any ideas, know-how, concepts, techniques or other Intellectual Property Rights contained in any Feedback.
Warranties
Warranty disclaimer
The Services and Documentation are provided as is and the Supplier excludes all rights, representations, conditions, warranties, guarantees, undertakings, remedies or other terms in relation to the Services to the maximum extent permitted by law.
Supplier warranty
The Supplier warrants to the Customer that:
the Services will operate in substantial conformity with the applicable Documentation during the Term;
the Supplier will not materially decrease the functionality or overall security of the Services during the Term; and
the Supplier will use reasonable endeavours designed to ensure that the Services, when and as provided by the Supplier, are free of any viruses, malware or similar malicious code.
Capacity and authority
Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement and that those signing this Agreement are duly authorised to bind the party for whom they sign.
Indemnity
Customer indemnities
The Customer indemnifies the Supplier against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Supplier for any claims brought by a third party against the Supplier to the extent arising out of or in connection with:
use of the Services by the Customer or any Authorised User in a manner that breaches this Agreement; or
any allegation that the Customer Data infringes, or involves an unauthorised use or disclosure of a third party's Intellectual Property Rights.
Intellectual Property Rights indemnity
The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the Customer's use of the Services, or the Customer's receipt of the benefit of the use of the Services, in each case in accordance with this Agreement, infringes, or involves an unauthorised use or disclosure of a third party's Australian Intellectual Property Rights (Claim) and will be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim, provided that if any third party makes a Claim, or notifies an intention to make a Claim, against the Customer that may reasonably be considered likely to give rise to a liability under this indemnity, the Customer:
as soon as reasonably practicable, gives Notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed), except where required by law;
gives the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses that may be incurred, takes such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
Exclusions from Intellectual Property Rights indemnity
Without prejudice to clause 10.5, the Supplier's obligations under clause 10.2 will not apply to the extent any Claim is caused or contributed to by:
use of the Services by the Customer or any Authorised User in breach of this Agreement or in combination with Third-Party Products; or
Customer Data or Third-Party Products.
Termination if infringement cannot be remedied
If:
use of the Services is determined in a court of law to be infringing;
the Supplier is advised by a barrister of at least ten years' call that use by the Customer of the Services in accordance with this Agreement is likely to constitute infringement of a third party's rights; or
an injunction or similar order is granted in connection with a Claim that prevents or restricts the use by the Customer of the Services in accordance with this Agreement,
and the Supplier is unable, after best efforts, to procure for the Customer the right to continue using the Services (as the case may be) or to provide the Customer with functionally equivalent non-infringing services, either party may terminate this Agreement.
Mitigation
Nothing in this clause 10 will restrict or limit a party's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under any indemnity in this Agreement.
Limitation of liability
Warranty disclaimer
Subject to the other terms of this clause 11, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law.
Liability cap
Subject to the other terms of this clause 11, the Supplier's maximum aggregate liability to the Customer in any 12-month period for any loss or damage arising out of or in connection with this Agreement, including any breach by the Supplier of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the greater of:
$1,000; and
100% of the charges paid by the Customer under this Agreement in the 12-month period preceding the matter or event giving rise to the claim.
Exclusion of special, indirect or consequential loss
Subject to the other terms of this clause 11, each party excludes any liability to the other, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement, including any:
loss of profits;
loss of production;
loss of agreements or contracts;
loss of, or damage to, goodwill;
loss of reputation;
loss of sales or business;
loss of business opportunity;
loss of anticipated savings; and
loss, or corruption, of software, data or information.
No liability for Service Suspension
Subject to the other terms of this clause 11, the Supplier will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorised User may incur as a result of a Service Suspension.
Liabilities that are not limited or excluded
Nothing in this Agreement:
is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services; or
limits or excludes a party's liability:
for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
for fraud or fraudulent misrepresentation by it or its employees, as applicable;
where liability cannot be limited or excluded by applicable law;
for repudiation or abandonment of this Agreement;
for breach of confidentiality under clause 7;
for breach of privacy and data protection obligations under clause 13;
for infringement of a third party's Intellectual Property Rights, including under clause 10.1 and clause 10.2;
for breach of any payment, access control, confidentiality, privacy, security or clinical governance obligation that cannot be limited or excluded by applicable law.
ANY OTHER LIABILITIES NOT LIMITED.
Proportionate liability
Notwithstanding anything else in this clause 11, the Supplier's liability will be reduced to the extent the loss or damage is caused by or contributed to by the Customer, the Customer's employees, agents or contractors.
Term and termination
Term
The initial term of this Agreement begins on the Commencement Date and, unless terminated earlier pursuant to this Agreement's provisions, will continue in effect until 12 months from such date (Initial Term).
Renewal
This Agreement will automatically renew for additional successive 12-month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party Notice of non-renewal at least 30 days prior to the expiration of the then-current term.
Fee increase
The Supplier will provide Notice of any applicable increase to the Fees 30 days or more before the beginning of a Renewal Term.
Termination for convenience
Without affecting any other right or remedy available to it, the Customer may terminate this Agreement on giving not less than 30 days' Notice to the Supplier, provided that a Notice to terminate served under this clause 12.4 does not expire before the Initial Term.
Consequences of termination for convenience
On termination by the Customer under the terms of clause 12.4:
all rights to use the Services and the Documentation granted to the Customer and any Authorised User under this Agreement will cease; and
the Customer will immediately pay to the Supplier any sums due to the Supplier under this Agreement.
Termination for default
Without affecting any other right or remedy available to it, a party (Non-Defaulting Party) may terminate this Agreement with immediate effect by giving notice to the other party (Defaulting Party) if:
the Defaulting Party fails to pay any undisputed amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
the Defaulting Party commits a material breach of any other term of this Agreement and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the Defaulting Party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
an Insolvency Event occurs in relation to the Defaulting Party (and the Corporations Act does not prevent the Non-Defaulting Party from terminating this Agreement because of that Insolvency Event).
Survival of obligations
The following clauses survive termination or expiry of this Agreement together with any other term that by its nature is intended to do so:
clause 7 (Confidential Information);
clause 8.3 and clause 8.4 (Intellectual property);
clause 10 (Indemnity);
clause 11 (Limitation of liability);
clause 12 (Term and termination);
clause 13 (Privacy and data protection); and
clause 15.16 (Governing law and jurisdiction); and
Schedules 1 and 2.
Privacy and data protection
Application of the Privacy Act
The Supplier warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
The Customer warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
Supplier's privacy obligations
If the Supplier collects, holds, uses or discloses Personal Information in the course of or relating to this Agreement, the Supplier must:
handle all Personal Information in accordance with the Privacy Policy;
only use Personal Information for the purpose of performing its rights and obligations under this Agreement;
not disclose Personal Information to any third party (including any contractor and subcontractor) without the Customer's prior written consent or as required by law; and
not disclose Personal Information to a person not located in Australia without the express written consent of the Customer, except as disclosed in the Privacy Policy or otherwise permitted by this Agreement.
Customer's privacy obligations
The Customer warrants that it:
will not provide any Sensitive Information to the Supplier unless that information is necessary for the Supplier to perform its obligations under this Agreement and then only with the Supplier's specific written consent; and
has:
made all necessary notifications required by APP 5, on behalf of itself and the Supplier to;
obtained all necessary consents required by APP 6 from; and
obtained consent as required by APP 8.2(b), on behalf of itself and the Supplier from,
the individuals whose Personal Information it is disclosing to the Supplier in the course of this Agreement to enable the Supplier to lawfully use the Personal Information and perform its obligations in accordance with this Agreement.
Data Incident and Data Breach Investigation
If the Supplier becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, the Supplier must:
immediately take reasonable steps to, and bear any costs of, containing and resolving the Data Incident and preventing any further serious harm to affected individuals (for the avoidance of doubt, this obligation is ongoing);
immediately notify the Customer in writing stating:
the nature and details of the Data Incident;
the specific Personal Information affected;
the actions taken by the Supplier including those required at clause 13.4(a); and
the recommended next steps for each of the parties and the affected individuals;
identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 20 days of becoming aware of the Data Incident (Data Breach Investigation);
provide a full, unedited and unredacted copy of the report of the Data Breach Investigation in clause 13.4(c) to the Customer on completion (for the avoidance of doubt, the Supplier agrees not to withhold any information from the report and expressly waives its right to any claim of privilege (including legal professional privilege) to any part of report); and
engage in regular open and good faith discussions with the Customer regarding:
the conduct and outcomes of the Data Breach Investigation;
its ongoing actions to contain and resolve the Data Incident and prevent any further serious harm to affected individuals in clause 13.4(a);
in the case of an Eligible Data Breach, whether the Customer or the Supplier will make the relevant notifications under the Privacy Act and whether and to what extent any public or media statements will be made (in each case, the Customer's decision to be final); and
where the Supplier is making the relevant notifications at clause 13.4(e)(iii), the Supplier must subject the notifications to the Customer for approval before they are made (such approval to be given promptly and not to be unreasonably withheld).
Data security
Security measures include authenticated access, role-aware access controls, client-side encryption for patient identifying information where implemented, separation of identity data from clinical case content where practical, de-identification controls, tamper-evident audit records, backups, incident response procedures and secure configuration of hosting and communication providers.
Notices
Form of Notice
A notice or other communication to a party under this Agreement (Notice) must be:
in writing and in English;
signed by the sender or a person authorised to sign on behalf of the sender;
addressed to that party in accordance with the details in the table below (or any alternative details given in writing to the sending party):
| Party | Address | Attention | |
|---|---|---|---|
| Supplier | Australia | Legal notices | matthewjduff@icloud.com |
| Customer | As specified in the order form or subscription record | Customer legal notices contact | As specified in the order form or subscription record |
How Notice is given and received
A Notice must be given by one of the methods set out in the table below.
A Notice is regarded as given and received at the time set out in the table below. However, if this means the Notice would be regarded as given and received outside the period between 9.00 am and 5.00 pm (addressee's time) on a Business Day (Business Hours Period), then the Notice will instead be regarded as given and received at the start of the following Business Hours Period.
| Notice delivery method | When Notice is regarded as given and received |
|---|---|
| By hand to the nominated address | When delivered to the nominated address. |
| By pre-paid post to the nominated address | At 9.00 am (addressee's time) on the second Business Day after the date of posting. |
| By email to the nominated email address | Five hours after the time sent unless the sender receives an automated message that the email has not been delivered. |
General
Variation
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
No waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
Words or conduct referred to in clause 15.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
Assignment, novation and other dealings
Except where this Agreement provides otherwise, any rights of a party that arise out of or under this Agreement are not assignable by the party without the prior written consent of the other parties, whose consent must not be unreasonably withheld.
A breach of clause 15.3(a) by a party entitles the other parties to terminate this Agreement.
Clause 15.3(b) does not affect the construction of any other part of this Agreement.
Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart is an original, and is evidence of the intention of each party who has executed that counterpart to be bound by its terms. All counterparts taken together constitute one instrument.
The parties agree that:
transmission by or on behalf of any party to the other parties of a complete executed counterpart of this Agreement (but, for the avoidance of doubt, an isolated signature page will not be sufficient for this purpose) by email (attached in PDF, JPEG or other agreed format) or other form of electronic file sharing and distribution that may be agreed between the parties as being appropriately reliable for the purpose of evidencing due execution, will constitute exchange of an executed counterpart of this Agreement;
where one of the methods of exchange in clause 15.4(b)(i) is used, the transmitting party must provide the other parties with an original of the relevant executed counterpart as soon as reasonably possible thereafter (but any delay in providing any original counterpart does not prejudice the validity of the obligations formed on exchange under this clause 15.4(b)(ii); and
a copy of an original executed counterpart transmitted by a method specified in clause 15.4(b)(i), instead of the original, is sufficient evidence of the execution of the original and may be produced in evidence for all purposes in place of the original.
Severability
If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
Clause 15.5(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement.
No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
Further action
Each party must at its own expense do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to:
bind the party and any other person intended to be bound by this Agreement;
show that it is complying with this Agreement; and
give full effect to this Agreement and the transactions contemplated by this Agreement,
and use all reasonable endeavours to procure that any third parties do the same.
Time of the essence
Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.
Force majeure
Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event). In such circumstances, the time for performance must be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 30 weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving 30 days' Notice to the affected party.
The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
Relationship of the parties
Nothing in this Agreement gives a party authority to bind any other party in any way.
Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.
Exercise of rights
No party is required to act reasonably in exercising any right, power, authority, discretion or remedy under or in connection with this Agreement, including the granting or withholding of any approval or consent, unless expressly required to do so by the terms of this Agreement.
Any party may (without being required to act reasonably) make any consent or approval required to be given by it under or in connection with this Agreement, or a waiver of any of its rights, powers, authority, discretion or remedies arising under or in connection with this Agreement, subject to conditions that must be complied with by the party seeking to rely on the consent, approval or waiver.
Remedies cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
Entire agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
No reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.
Default interest
If any sum due for payment under this Agreement is not paid on the due date, the Customer must pay interest on the amount unpaid at the Interest Rate plus 2%.
Interest payable under clause 15.15(a) accrues on a day-to-day basis from the due date up to and including the date of actual payment.
Interest payable under clause 15.15(a) may be capitalised by the Supplier on a monthly basis OR OTHER CAPITALISATION METHOD.
Governing law and jurisdiction
This Agreement is governed by the law in force in New South Wales, Australia.
Each party irrevocably:
submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement; and
waives any right it has to object to the venue of any legal process in those courts on the basis that the process has been brought in an inconvenient forum or that those courts do not have jurisdiction.
Agreement details
Commencement Date
26 June 2026
Fees
Fees are as specified in the applicable order form, subscription record or invoice. Unless otherwise agreed in writing, Fees are invoiced in advance for the relevant subscription period and are payable within 14 days of invoice.
Number of Authorised Users
Maximum number of Authorised Users: as specified in the applicable order form or subscription record.
Services
Episap, a case-first multidisciplinary team (MDT) software-as-a-service application for preparing, scheduling, running and documenting MDT meetings, managing patient-case records, consent requests, invitations, meeting notes, recommendations, follow-up summaries and related audit records.
Third-Party Products
Third-party products may include Supabase for authentication, database and storage infrastructure; LiveKit for optional real-time video; Resend for email delivery; Twilio for SMS delivery; hosting, analytics, monitoring and security providers; and any other provider identified in the Documentation or applicable order form.
Policies
Privacy Policy
The current Episap Privacy Policy is available at https://episapient.com/privacy.
Security Measures
Security measures include authenticated access, role-aware access controls, client-side encryption for patient identifying information where implemented, separation of identity data from clinical case content where practical, de-identification controls, tamper-evident audit records, backups, incident response procedures and secure configuration of hosting and communication providers.
Service Levels
Definitions
In this Schedule 3, the following definitions are used:
Available: the Services are available for access and use by the Customer and Authorised Users over the internet or private network and operating in substantial conformity with the applicable Documentation.
Availability Requirement: the definition given in paragraph 2.
Exception:
act or omission by the Customer or any Authorised User;
access to or use of the Services by the Customer or any Authorised User that does not strictly comply with this Agreement;
the Customer's or its Authorised User's internet or private network connectivity;
Force Majeure Event;
failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by the Supplier under this Agreement;
Scheduled Downtime; or
suspension of the Services pursuant to clause 2.6.
Scheduled Downtime: the definition given in paragraph 5.
Service Credit: the definition given in paragraph 3.1.
Service Level Failure: a material failure of the Services to meet the Availability Requirement.
Service Period: each calendar month during the Term.
Availability Requirement
Subject to the terms and conditions of this Agreement, the Supplier will use reasonable endeavours to make the Services Available at least 99.5% of the time as measured over a Service Period, excluding unavailability as a result of any Exception (Availability Requirement).
Service Credits
In the event of a Service Level Failure, the Supplier will issue a credit to the Customer in the amount of 10% of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred (each a Service Credit), subject to the following:
The Supplier has no obligation to issue any Service Credit unless:
the Customer reports the Service Level Failure to the Supplier immediately on becoming aware of it; and
requests a Service Credit in writing within 30 days of the Service Level Failure.
In no event will a Service Credit for any Service Period exceed 50% of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to the Customer under this Agreement will be issued to the Customer in the calendar month following the Service Period in which the Service Level Failure occurred.
Liability
Clause 3 of Schedule 3 is the Supplier's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
Scheduled Downtime
The Supplier will use reasonable endeavours to:
schedule downtime for routine maintenance of the Services outside ordinary Australian business hours where practical; and
give the Customer at least 24 hours prior notice of all scheduled outages of the Services (Scheduled Downtime).
Support Services
Support is available by email at matthewjduff@icloud.com. Episap will use reasonable endeavours to respond to support requests during Australian business days.
Executed as an agreement.
| Signature blocks for the Supplier and Customer are to be inserted at execution. |
|---|