Provider Agreement

Definitions

Set out in the table below are certain terms used in this Agreement and the meaning of that term:

Agreement or Agreement

means this Agreement between the Provider and Clear Labs and any terms and conditions attached hereto.

Claims

means, in relation to any person, a damage, loss, cost (including but not limited to legal costs), fine, penalty, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.

Clinic

means a healthcare clinic, centre, practice, or office within which one or more Providers provide healthcare services (which could be a sole practitioner or an entity or other association).

Commencement Date

means the commencement date of the Agreement, being the date of Provider's acceptance of these Terms & Conditions, whether by clicking on the “Accept” button, or completing a Clear Labs registration form to register for the Services, or by accessing or otherwise using the Services and/or the Platform.

Confidential Information

means all or any information concerning the business or affairs of a party, whether or not recorded in a material form, which is marked as being confidential or which, from its content or format, ought to reasonably be treated as being confidential and is not generally made available to the public. For the avoidance of doubt, Provider Information is not considered Confidential Information.

Intellectual Property Rights

means any and all intellectual and industrial property rights throughout the world and includes, without limitation all rights in copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), trade marks, irrespective of whether such rights are registered or capable of registration.

Law

means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in any relevant jurisdiction and includes the common law and equity as applicable from time to time.

Patient

means a patient of the Provider and who the Provider has shared the details of that person with Clear Labs to provide its Services.

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. This includes, but is not limited to, names, addresses, contact details, medical histories, and appointment details of Patients, as received by the Provider from the Platform. For the purposes of this Agreement, Personal Information also includes “sensitive information” as defined under the Privacy Act 1988 (Cth.)

Provider

means an individual that is a provider of healthcare services (either as a sole practitioner or with other practitioners within a Clinic).

Provider Information

means business information in respect of a Provider or Clinic published or made available to Clear Labs by the Provider, collected by Clear Labs from any available source at any time, or prepared by Clear Labs providing the Services to the Provider or information about a Patient provided by the Provider to Clear Labs in connection with the Services.

Services

means the bundled diagnostic workflow and healthcare coordination service provided by Clear Labs.

Term

means the period from the Commencement Date until termination of the Agreement in accordance with clause 9.

In this Agreement:

• headings are for convenience only and do not affect the interpretation of this Agreement.
• a reference to the singular includes the plural and references to the masculine include the feminine and vice versa.
• an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental agency.
• a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by laws amending, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute.
• a reference to a document includes an amendment or supplement to, or replacement or novation of, that document.
• a reference to a party to a document includes that party’s successors and permitted assigns.
• all amounts payable under this Agreement are to be calculated and paid in the lawful currency of Australia.

Engagement

This Agreement commences on and from the Commencement Date. It continues until terminated in accordance with this Agreement.

Clear Labs will provide the Services to the Provider during the term of this Agreement. The Services may include The Services may include pathology test coordination, sample collection access, laboratory processing and analysis, clinical review and oversight, results coordination and delivery and other administrative and operational services relating to services.

Clear Labs reserves the right to vary and update its operational workflows, clinical governance requirements, and service delivery processes at any time during this engagement and in its sole discretion. The Provider acknowledges and agrees that Clear Labs may be required to do so for various reasons including to improve its Services, enhance any feature or part of its Services or the Platform or increase its operational efficiency.

This Agreement governs the arrangement between Clear Labs and the Provider under which:

• Clear Labs will make available to the Provider the Platform;
• the Provider will use the Platform and Services in respect of its Patients; and
• the use and access to the Platform and Services are provided at no cost to the Provider.

The Provider is solely responsible for its provision of Provider Information, healthcare services and managing its relationship with its Patients.

Clear Labs Obligations

During the Term of this Agreement Clear Labs will:

• conduct itself in a diligent and professional manner with the appropriate degree of skill and care;
• comply with all relevant Laws; and
• handle Personal Information provided in accordance with its Privacy Policy (as it may be amended from time-to-time).

Clear Labs may, at any time, vary the scope of its Services (including enhancing or altering the functionality of the Platform) at its sole discretion.

Clear Labs will provide reasonable notice to the Provider of any significant changes that may affect the Provider's use of the Services, unless those changes are as a result of changes in Law.

Provider Obligations

Provider must:

• provide Clear Labs with documentation, information and other items necessary to enable Clear Labs to provider the Services to the Provider;
• conduct itself in a diligent and professional manner with the appropriate degree of skill and care when engaging with Clear Labs and with Patients;
• obtain and maintain all licences, qualifications, permits, and certifications required for it to provide its services to patients and provide Clear Labs with copies on request; and
• not do anything, or omit anything, which breach any Laws, regulations or best practice principles or which would damage the reputation of Clear Labs in any way;
• notify Clear Labs of any changes to the Provider’s licences, qualifications, permits, registrations, and certifications;
• notify Clear Labs of any complaints relating to the Services received by the Provider;
• comply with all applicable Laws;
• maintain all insurance policies which a reasonably prudent healthcare provider in the Provider's position would maintain, including but not limited to “Professional Indemnity” (including medical negligence if required) and “Public Liability” insurance in relation to the services offered by the Provider, and Cyber Insurance covering financial losses from cyber incidents;
• maintain as confidential and keep secure all information regarding a Patient and any other data received from Clear Labs, and not disclose or use any information regarding a Patient or any other data received from Clear Labs other than for the purposes of this Agreement or the provision of the relevant healthcare services (except, in the case of information regarding a Patient, with the consent of that Patient);
• comply with all applicable privacy and information Law and regulations so far as they relate to the Provider's collection of Patient Personal Information; and
• notify Clear Labs immediately of any unauthorised access of, or data breach relating to, the Services or the Platform.

Intellectual Property

Clear Labs retains exclusive ownership and control of the Intellectual Property Rights in the Platform and the Services, including in all Clear Labs know how, software, materials and methodologies used in providing or incorporated in the Services, which may incorporate any information, images and content provided by the Provider to Clear Labs under this Agreement. The Provider retains all rights to pre-existing information, images and content provided to Clear Labs.

Any feedback, comments, ideas, improvements, or suggestions (collectively, “Feedback”) provided by a Provider to Clear Labs with respect to the Platform and the Services becomes the sole and exclusive property of Clear Labs. By submitting Feedback, the Provider irrevocably assign to Clear Labs all of Provider's right, title, and interest in and to the Feedback, including any intellectual property rights therein. Clear Labs is entitled to the unrestricted use and dissemination of this Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to the Provider. The Provider hereby waives any moral rights it may have in such Feedback and agree that it has no recourse against Clear Labs for any alleged or actual infringement or misappropriation of any proprietary rights in its Feedback.

The Provider grants to Clear Labs a royalty-free licence to use, copy, reproduce, publish, modify, translate, adapt and otherwise exploit the Provider Information for the purpose of providing the Services.

Confidentiality

A Party which receives Confidential Information (“Recipient”) from the other Party (“Discloser”) must keep the Discloser's Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

The Recipient's obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.

At the Termination Date, or when earlier directed by the Discloser:

• all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
• the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.

The Confidential Information does not include information which:

• is generally available in the public domain; or
• was known by the Recipient prior to the Discloser disclosing the information to the other party.

The Recipient agrees that the Discloser may require any of the Recipient's personnel to sign a confidentiality Agreement in a form that the Discloser approves, as a condition of the Discloser's acceptance of any of the Recipient's personnel.

The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this Clause 6 by the Recipient.

The Recipient acknowledges that damages may be an inadequate remedy for breach of this Clause 6 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this Clause 6.

The obligations accepted by the Recipient under this Clause 6 survive termination or expiry of this Agreement.

Privacy and Data

Clear Labs will handle any Personal Information in accordance with its Privacy Policy, as updated from time-to-time. Clear Labs will handle any data or security breach in accordance with the Privacy Act 1988 (Cth) and its legislative requirements.

The Provider is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by the Provider to Clear Labs in connection with the Services so as to ensure that Clear Labs's dealings with that information comply with Clear Labs's obligations under any Privacy Laws.

The Provider must indemnify Clear Labs against, and must pay Clear Labs on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 7.2.

The Provider must:

• immediately notify Clear Labs in writing if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this Agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
• comply with any directive from Clear Labs as to which party will discharge any statutory reporting obligation arising from the incident;
• conduct or assist Clear Labs in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
• ensure compliance with all mandatory data breach reporting obligations arising out if the breach or suspected breach.

Warranties and Liability

The Provider represents and warrants to Clear Labs that each of the following statements is true and accurate at the date of this Agreement:

• it is validly existing under the Law of its place of incorporation or registration;
• it has the power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement; and
• it has taken all necessary action to authorise its entry into and performance of this Agreement and to carry out the transactions contemplated by this Agreement.

The Provider acknowledges and agrees that Clear Labs is not a healthcare provider and is not liable in any respect for the care of a Patient. As between the Provider and Clear Labs, the Provider is solely responsible for the care of a Patient;

The Provider agrees to indemnify, defend and hold harmless Clear Labs, its officers, directors, employees, contractors, agents, and affiliates, from and against any and all Claims arising out of or in connection with:

• any advice or treatment provided (or which Provider failed to provide) by the Provider to a Patient;
• the Provider's use of the Services; and/or
• a breach of Law, or a breach of any terms of this Agreement.

To the maximum extent permitted by law, Clear Labs excludes all Claims, rights, remedies, guarantees, conditions and warranties of or in favour of any Provider or third party implied or imposed in respect of goods and services related to the Provider's use of the Services and in particular:

• Clear Labs provides no warranty that the provision of the Services will be free of delays, uninterrupted, error free or free of viruses or bugs; and
• Clear Labs has no responsibility or liability for any loss or damage that a Provider incurs as a result of any failure to backup data stored on its own systems, including Patient records.

The total and aggregate liability of Clear Labs under this Agreement or any engagement of its Services for Loss suffered or sustained by the Provider in connection with the Services or Clear Labs' obligations under this Agreement, whether arising as a result of breach of contract, in tort (including negligence) or under statute and whether or not arising pursuant to an indemnity in this Agreement, is limited to the cost of providing the Services again or $100, whichever is lesser.

The Provider acknowledges that it does not rely on any representation, warranty or other provision made by Clear Labs, or its personnel, or on Clear Labs' behalf which is not expressly stated in this Agreement.

Clear Labs is not liable to the Provider in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that the Provider of an indirect or consequential nature. including any economic loss or other loss of turnover, profits, business or goodwill.

Term and Termination

The Agreement commences on the Commencement Date and will continue in effect until terminated pursuant to this clause 9.

If the Provider is in breach of this Agreement, or Clear Labs suspects the Provider may be in breach, Clear Labs reserves the right to suspend or terminate providing it the Services immediately without further notice.

Each party may terminate this Agreement for convenience by providing 30 days' written notice to the other party.

Notices

A notice or other communication connected with this Agreement (“Notice”) must be in writing and in English.

A Notice must be emailed to the recipient's email address as set out in the Clear Labs registration confirmation (includes email or other online notification) or as notified in writing from time to time.

Service of a Notice is deemed to have occurred, if sent by email – on the first day after it is sent, provided that the sender does not receive a message stating that delivery of the email has failed or the recipient is ‘out of the office’.

General

This Agreement contains all the terms and conditions agreed on by the parties. No oral agreements or representations will be valid or binding on the parties unless expressly contained in this Agreement or by a written amendment to this Agreement.

This Agreement may only be amended by Agreement by both parties. No term or condition in this Agreement will be deemed waived and no breach excused unless such waiver or excusal is in writing and signed by the affected party.

If any term or condition of this Agreement is found to be illegal or unenforceable, each such term or condition will be enforced only to the extent it is not illegal or unenforceable and all other Terms & Conditions and provisions of this Agreement will remain in full force and effect.

The provisions of clauses 5, 6, 7, 8, 10 and 11survive termination or expiry of this Agreement.

This Agreement is not to be interpreted against the interests of a party merely because that party proposed this Agreement or some provision of it or because that party relies on a provision of this Agreement to protect itself.

This Agreement is governed by the laws of the State of New South Wales. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with all matters concerning this Agreement.

Neither party is liable for any delay or failure to perform its obligations under this Agreement if the delay or failure is due to any event beyond its reasonable control, including without limitation, natural disasters, acts of God, virus outbreaks, acts of government, changes in Law or regulations, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, technical failures, or cyber attacks. The party affected by such an event shall notify the other party as soon as reasonably possible and shall use reasonable efforts to mitigate the effects of the event.

Clear Labs may, at any time, vary this Provider Agreement, including, but not limited to, adding or varying any fees and charges for the Services. Clear Labs will provide the Provider with at least 30 days' notice of any variation of these Terms & Conditions. A variation of terms takes effect on the date set out in the notice given by Clear Labs. If the Provider does not wish to continue to receive the Services after the variation of terms, then it may terminate this Agreement for convenience in accordance with clause 9. The Provider's continued use of the Services or the Platform after the effective date of the variation of the Terms & Conditions shall be deemed to constitute acceptance by the Provider of such amendments. Any rights or liabilities arising prior to the effective date of any amendment to this Agreement will be unaffected by the variation of the Terms & Conditions.