2.1 HCL Responsibilities

In consideration for Customer's payment of the Fees, HCL will:

1. (a)
   (Professional Services) provide the Professional Services (if any) set out in a SOW. HCL will control the manner and means by which the Professional Services are performed and reserves the right to determine personnel assigned;
2. (b)
   for the duration of the Subscription Period:

   1. (i)
      (Subscription to SystemView) grant Customer a non-transferable, non-exclusive right to install, access and use SystemView in the Customer Environment, and to allow such access and use by Customer's Authorised Users, for Customer's internal business purposes subject to any licence parameters set out in the SOW. Customer may maintain a reasonable number of copies of SystemView on the Customer Environment for backup and recovery purposes, provided use of the copies is strictly limited to back up or disaster recovery purposes; and
   2. (ii)
      (Support Services) provide the Support Services in accordance with HCL's Support Policy. The Support Services includes Updates to SystemView as they become generally available to HCL's customers. Customer is responsible for implementing (or engaging HCL to implement, as part of Professional Services) any Updates.

2.2 Customer Responsibilities

1. (a)
   In order for HCL to effectively provide SystemView and the Services, Customer will provide any information and assistance reasonably requested by HCL (or specified in the SOW and/or Order Form) for that purpose and will:

   1. (i)
      provide HCL with timely (and safe) access to the Customer's premises, facilities and Customer Environment as reasonably required by HCL to deliver the Services;
   2. (ii)
      allocate appropriately skilled staff with sufficient capacity as directed by HCL to complete all Customer assigned tasks and deliverables;
   3. (iii)
      supply adequate resources (both infrastructure and personnel) to enable HCL to provide the Services;
   4. (iv)
      determine who is an Authorised User and their level of user role access to SystemView;
   5. (v)
      register each Authorised User on SystemView — and in doing so, provide accurate, current and complete information as requested or directed by SystemView or the Documentation, and promptly update this information to maintain its accuracy, currency and completeness;
   6. (vi)
      control each Authorised User's level of access to SystemView at all times, and may revoke or change an Authorised User's access, or level of access;
   7. (vii)
      establish and maintain a method for remote access to SystemView and the Customer Environment for HCL as required for HCL to provide the Services; and
   8. (viii)
      perform such other responsibilities allocated to it in this Agreement.
2. (b)
   Customer acknowledges that HCL's delivery, implementation and support obligations for SystemView are dependent on Customer's timely and effective performance of its responsibilities under clause 2.2(a) and other timely decisions and approvals.

2.3 Data Obligations

Customer will provide clean and accurate data for the set up and running of SystemView. HCL reserves the right to charge Customer for any data that may require additional time spent to cleanse in order to import into SystemView. HCL will notify Customer in writing of these potential additional charges prior to incurring the additional time required to cleanse Customer data.

2.4 Customer Use of SystemView

Customer is responsible for:

1. (a)
   all activities that occur in, or are related to, each Authorised User's use of SystemView or via Customer login credentials (including any use of SystemView by an unauthorised third party as a result of Customer not having kept login credentials and/or the Customer Environment secure). Customer will, as soon as is practically possible, notify HCL if Customer becomes aware of any unauthorised use of any login credentials or any other breach of security that may impact on SystemView;
2. (b)
   implementing (or engaging HCL to implement, as part of Professional Services) any particular Authorised User access rights within Customer's instance of SystemView;
3. (c)
   otherwise configuring (or engaging HCL to configure) SystemView (as allowed by SystemView), to meet Customer's particular needs, including loading organisation and reference data relevant to the Customer's organisation;
4. (d)
   Customer Data stored on or transmitted through SystemView, including that it is and remains accurate, complete and current, and in order to maintain the integrity of SystemView overall, HCL may (on as much prior notice as is practically possible), on reasonable grounds, monitor, block, modify or remove Customer Data from SystemView, and will not be liable in any way for doing so;
5. (e)
   all output and results obtained from the input and processing by Customer (or any Authorised User) of Customer Data via SystemView (Customer Output), and Customer acknowledges that, except to the extent expressly stated otherwise in the Order Form and/or SOW, HCL accept no responsibility (or liability) to Customer or any third party with respect to the use, completeness or accuracy of such Customer Output;
6. (f)
   ensuring that: (i) Customer and Customer's personnel follow Customer's own clinical governance frameworks and clinical procedures in every setting where SystemView is used; and (ii) all users of SystemView have access to the HCL Training Materials prior to and during their use of SystemView;
7. (g)
   maintaining appropriate access and uptime within Customer's infrastructure;
8. (h)
   providing stable network infrastructure and access to Authorised Users;
9. (i)
   responding to, and remediating, support requests by HCL to Customer within appropriate and agreed processes and timeframes;
10. (j)
    ensuring source data meets the SystemView minimum data set requirements, noting that incomplete or non-conformant MDS data affects SystemView functionality and outputs;
11. (k)
    the accuracy of organisation reference data, ward/area mappings, specialty codes etc. used to populate SystemView configuration tables. Customer acknowledges that errors in this data directly affect analytics outputs of SystemView for which HCL is not responsible;
12. (l)
    where identifiable patient/clinician data access is enabled, ensuring role assignments comply with applicable Privacy Laws and health records legislation; and
13. (m)
    ensuring source system extracts are delivered per agreed schedules. HCL will not be liable for stale or incomplete outputs resulting from Customer-side extract delays or failures.

2.5 Restrictions on the Use of SystemView

1. (a)
   Customer must not (and must not authorise any person to):

   1. (i)
      make SystemView (including any SystemView Content) or the Documentation available to any third party not authorised by HCL to access and use it;
   2. (ii)
      sell, resell, license, sublicense, distribute, rent or lease SystemView (including any SystemView Content) or the Documentation;
   3. (iii)
      modify or reverse engineer SystemView (to the extent such restriction is permitted by law);
   4. (iv)
      integrate or link SystemView with other software, without HCL's prior written consent;
   5. (v)
      use SystemView in any way that is unlawful or in violation of any applicable laws;
   6. (vi)
      wilfully interfere with or disrupt the integrity of SystemView;
   7. (vii)
      use any elements or functionalities of SystemView to create a program or set of programs similar or identical to SystemView or any part of SystemView;
   8. (viii)
      release, publish, and/or otherwise make available to any third party the results of any performance, security or functional evaluation of SystemView without the prior written approval of HCL;
   9. (ix)
      alter or remove any proprietary notices or legends contained on or in SystemView or the Documentation; or
   10. (x)
       use SystemView for any purpose where a failure or fault of SystemView could lead to death or serious bodily injury of any person (including any Patient).
2. (b)
   SystemView may contain links to other websites, which are provided for Authorised Users' convenience only. HCL does not endorse (and is not responsible or liable for) those websites, their operators, functionality, content or the goods and services that they describe or make available.

2.6 Customer Environment

Customer will, for the duration of the Subscription Period:

1. (a)
   ensure that SystemView is only installed on (and not outside) the Customer Environment, and not relocated by Customer between any Customer Environment without prior written notification to HCL of at least sixty (60) days;
2. (b)
   ensure that the Customer Environment meets and complies with the minimum system requirements set out in the Documentation; and
3. (c)
   not make any changes to the Customer Environment that will, or are likely to, materially adversely affect the operation or use of SystemView without the prior written consent of HCL.

2.7 Service Acknowledgements

Customer acknowledges that:

1. (a)
   Customer is responsible for ensuring that SystemView, and the scope of Services, meets with Customer's requirements;
2. (b)
   Customer may select certain products, content, other materials, methodologies, processes or services supplied by a Third Party Licensor, for use/integration with SystemView. If Customer does so, Customer will be required to enter into a direct agreement with the relevant Third Party Licensor. HCL has no responsibility or liability for such products, content, materials or services of Third Party Licensors; and
3. (c)
   HCL may develop new functionality of or extensions to SystemView to which it may offer as a new release, version or module to its customers (and not an Update). Additional fees may apply should Customer wish to acquire that new functionality / extension.

3.1 HCL's Security Measures

During the Subscription Period, HCL will maintain and implement:

1. (a)
   organisational measures and applicable policies and procedures to help protect any Customer Data that is Processed by it in performance of this Agreement; and
2. (b)
   a security program under which HCL documents, implements and maintains the physical, administrative, and technical safeguards necessary to comply with the law, including applicable Privacy Laws,

as further described in HCL's Security Policy.

3.2 Customer's Security Measures

HCL does not host SystemView (inclusive of the Customer Data) or control the Customer Environment. Accordingly, Customer acknowledges that it:

1. (a)
   will implement appropriate technical and organisational measures to help protect SystemView, the Customer Environment and Customer Data; and
2. (b)
   is responsible for properly configuring and using SystemView and taking its own steps to maintain appropriate security, protection and backup of its data, including Customer Data.

3.3 Customer Security Contact

Customer is responsible for ensuring HCL at all times has updated and accurate Customer contact information for the appropriate person for HCL to notify regarding data security issues relating to SystemView.

4.1 Confidentiality

1. (a)
   If a party (recipient) receives Confidential Information from or on behalf of the other party (discloser), recipient must hold it in confidence and not (unless with discloser's prior written consent) disclose or use it except as required to perform this Agreement or as required by law. Confidential Information may be disclosed to recipient's employees, agents, professional advisors and contractors on a need-to-know basis only. Recipient will, on request of discloser, return to discloser all Confidential Information in its possession or certify the destruction of it.
2. (b)
   Nothing in this Agreement will (i) preclude HCL from using any ideas, methods, concepts and know-how developed in the course of providing SystemView and/or Services; or (ii) limit HCL's rights to provide similar products and/or services to other customers.
3. (c)
   HCL may use any feedback provided by Customer (or any Authorised User), related to SystemView and/or Services for any purpose in connection with SystemView without requiring consent, and Customer grants HCL a perpetual, irrevocable, non-exclusive, sublicensable royalty and fee free worldwide licence to do so.

4.2 Privacy

1. (a)
   Where the Customer Data includes any Personal Information (including any Patient Data), Customer must (i) comply with all applicable Privacy Laws in respect of that Personal Information; and (ii) have all necessary consents for their Personal Information to be provided to HCL for the purpose of HCL's performance of this Agreement (including HCL's Processing of that information in accordance with HCL's Privacy Policy).
2. (b)
   HCL will, to the extent that Personal Information is included in Customer Data that is Processed by HCL:

   1. (i)
      comply with any applicable Privacy Laws when accessing, collecting, storing, transferring, using or otherwise handling such Personal Information;
   2. (ii)
      notify Customer promptly (and at least within seventy-two (72) hours) on HCL becoming aware of any suspected or actual breach of Privacy Laws and will take all reasonable steps to remediate, and mitigate the effects of, the breach; and
   3. (iii)
      provide all reasonable assistance to Customer in relation to any complaint or request made by any individual in relation to their Personal Information held by HCL.

5.1 Payment

1. (a)
   Customer will pay the fees set out and in accordance with an Order Form and/or SOW (Fees), without deduction or set-off. Unless otherwise provided in this Agreement all Fees are non-refundable and non-cancellable. Unless otherwise provided in an Order Form and/or SOW: (i) all Fees owed to HCL will be paid in the currency stated in the Order Form and/or SOW, (ii) invoiced payments will be due within 30 days after the date of Customer's receipt of each invoice, and (iii) the Fees for the initial Subscription Period will be invoiced in accordance with the Order Form. If Customer wishes to dispute an invoice, it must provide written notice to HCL within 30 days after receipt of the invoice.
2. (b)
   HCL may reasonably increase the Fees at the end of the initial Subscription Period or any renewal, by providing at least 30 days' notice. All Fees will also increase annually in line with the greater of 5% or inflation (as reflected in the Northern Ireland Consumer Prices Index produced by the UK Office for National Statistics).
3. (c)
   If any Fees are not paid by the due date, then unless Customer has raised a bona fide dispute before such due date, HCL may: (i) charge interest at the lesser of 5% per month compounded, or the maximum amount allowed by law, for the overdue period; and/or (ii) if Customer account is fourteen (14) days or more overdue, with prior written notice, suspend Customer's access to and use of SystemView, without liability, until such amounts are paid in full.

5.2 Taxes

All Fees payable by Customer under this Agreement are exclusive of applicable taxes and duties, including withholding taxes, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively Taxes) but always excluding any Taxes assessed on HCL's income or revenue. Customer must pay all Taxes imposed on the supply of SystemView and Services. If Customer is legally entitled to an exemption from any Taxes, Customer is responsible for providing HCL with legally-sufficient tax exemption certificates for each taxing jurisdiction.

6.1 Ownership

1. (a)
   Customer owns all rights, title and interest (including Intellectual Property Rights) in the Customer Data. Customer grants to HCL a non-exclusive, royalty-free, non-transferable, worldwide licence to use, copy, modify or communicate the Customer Data to the extent necessary for HCL to perform or exercise its rights under this Agreement (including to produce Analytics Data).
2. (b)
   HCL (or HCL's relevant licensors) retain all right, title, Intellectual Property Rights and other proprietary interests in or relating to: (i) SystemView (including in the SystemView Content), including any derivative works, modifications, or improvements; (ii) all new materials, works, or deliverables created by or on behalf of HCL under this Agreement; and (iii) any data insights in aggregated and de-identified form (including data models, trained algorithms, analytics and machine learning models, use cases, automated processes, software tools, methods, ideas, concepts, know-how, and intelligent systems) gained, generated, developed, or derived from the Processing of any Customer Data and/or any use of SystemView (Analytics Data).
3. (c)
   Customer must ensure that: (i) Customer has all necessary rights to provide HCL with access to Customer Data and to transmit it through, or upload it onto, SystemView; and (ii) Customer's Authorised Users have all necessary rights to provide HCL with access to Customer Data.
4. (d)
   HCL will only use Customer Data to perform its obligations and exercise its rights under this Agreement, unless the relevant owner of that data provides consent for HCL to use that data for additional purposes.

6.2 HCL Indemnity

1. (a)
   HCL will indemnify Customer against any amount Customer is finally ordered to pay to a third party by a Court of competent jurisdiction (or settlement agreed by HCL) which arises from a claim alleging that Customer's (or any Authorised User's) use of SystemView in accordance with this Agreement infringes the Intellectual Property Rights of that third party (IP Claim).
2. (b)
   If an IP Claim occurs, or in HCL's opinion is reasonably likely to occur, HCL may, at its expense and at its sole discretion: (i) procure the right to allow Customer to continue to use SystemView on the same terms, or (ii) modify or replace SystemView or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, HCL may terminate this Agreement on as much prior written notice as is practically possible and refund to Customer the prorated portion of prepaid Fees attributable to the remaining applicable period of the Subscription Period.
3. (c)
   Notwithstanding the foregoing, HCL will have no obligations under this clause 6.2 to the extent the IP Claim is attributable to: (i) any modification of SystemView not made by or on behalf of HCL; (ii) any combination or use of SystemView with products or services not provided by HCL (including the Customer Environment); (iii) Customer's failure to use Updates made available by HCL (where use of that Update would have avoided the infringement); (iv) use of SystemView not in accordance with this Agreement; or (v) any open source components embedded in SystemView.

6.3 Customer Indemnity

Customer indemnifies HCL against any amount HCL is finally ordered to pay to a third party by a Court of competent jurisdiction (or settlement agreed by Customer) which arises from a claim alleging that HCL's (or any HCL Group member's) access to or use of any Customer Data in accordance with this Agreement infringes the Intellectual Property Rights, confidentiality or privacy rights of that third party.

6.4 Indemnity Process

1. (a)
   If a party (the indemnified party) wishes to enforce an indemnity under clause 6.2 or 6.3 in relation to any third party claim, it will: (i) give notice to the other party (the indemnifying party) as soon as practicable, not make any admissions with respect to the claim, and provide all reasonable information and assistance requested by the indemnifying party; (ii) permit the indemnifying party, at the indemnifying party's expense, to have sole control of the defence and all settlement negotiations and litigation.
2. (b)
   The indemnities under clauses 6.2 and 6.3 represent each party's exclusive remedy and liability for infringement of third party Intellectual Property Rights.

7.1 Mutual Warranties

Each party represents and warrants that: (a) it has the legal power to enter into this Agreement; and (b) it will comply with all applicable laws in the performance of this Agreement.

7.2 HCL Warranties

1. (a)
   (SystemView warranty) SystemView (including each Update) will materially perform in accordance with the applicable Documentation, for a period of 60 days from the date SystemView is installed in the Customer Environment or the Update is made available for initial download by Customer (the Warranty Period), provided the Customer provides written notice of a claim within the Warranty Period. If HCL is not able to correct any reported non-conformity with this warranty, then either party may terminate the Order Form for SystemView and Customer, as its sole remedy, will be entitled to receive a refund of Fees paid under that Order Form, provided Customer removes all copies of SystemView from the Customer Environment and ceases any further use of SystemView. This warranty will not apply if the error or non-performance was caused by: (i) any modification(s) to SystemView other than by or behalf of HCL; (ii) misuse of SystemView, or use not in accordance with this Agreement or the Documentation; or (iii) Customer's Environment, or any other hardware, software or services not provided by HCL.
2. (b)
   (Professional Services warranty) for a period of 30 days from the date of delivery of any Professional Services, that the Professional Services will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable SOW. HCL's entire liability and Customer's sole and exclusive remedy for any breach of this warranty will be for HCL to re-perform the non-conforming Professional Services, or if HCL is unable to deliver conforming Professional Services within a reasonable time, to terminate the applicable SOW and refund any Fees paid for the relevant non-conforming Professional Services.

7.3 Disclaimer

1. (a)
   Except as expressly provided in this Agreement and to the maximum extent permitted by law, HCL makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose. HCL does not warrant that SystemView will be error-free or uninterrupted.
2. (b)
   Nothing in this Agreement excludes, restricts or modifies any condition, warranty or liability which may at any time be implied by applicable law where to do so is illegal or would render any provision of this Agreement void (Non-Excludable Guarantee). Wherever allowed by law, HCL's liability for breach of a Non-Excludable Guarantee is limited, at HCL's option, to either repairing SystemView, or reperforming the relevant Service or paying the cost of doing so.
3. (c)
   Customer acknowledges and agrees that: (i) HCL does not provide medical services or practise medicine; (ii) SystemView simply transmits, processes and presents information, and is not a replacement for qualified medical professionals or clinical judgement; and (iii) any decisions relating to patient care or medical practice made using SystemView, and any outcomes arising from those decisions, remain entirely as the Customer's responsibility and risk.

9.1 Term

1. (a)
   This MSA starts on the date that Customer accepts HCL's offer for SystemView on the Microsoft commercial marketplace and will continue for an initial period of twenty-four (24) months (Initial Term). Thereafter, this MSA shall automatically renew for one successive period of twelve (12) months (the Renewal Term) unless either party provides written notice of non-renewal at least ninety (90) days prior to the expiry of the Initial Term. Either party may terminate this MSA upon written notice to the other party if there is no Order Form or SOW currently in effect.
2. (b)
   The term of an Order Form or SOW will be as set out in the Order Form or SOW (as applicable). Each Order Form will terminate upon expiration of the applicable Subscription Period set out in the Order Form, unless renewed in accordance with the terms of the Order Form.

9.2 Termination

Subject to any stay of termination as may be required by laws, this Agreement (and all related Order Forms and SOWs) may be terminated by a party:

1. (a)
   if the other party materially breaches any provision of this Agreement (including a failure to pay properly invoiced and undisputed Fees and Customer has been provided with 30 days prior written notice of that outstanding payment) and the breach remains uncured 30 days after being provided with a reasonably detailed notice of the breach; or
2. (b)
   effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within 90 days.

9.3 Effect of Termination

1. (a)
   Upon termination by Customer pursuant to clause 9.2, HCL will refund Customer any prepaid subscription Fees for SystemView that was to be provided (on a pro rata basis) after the effective date of termination. Termination for any reason will not relieve Customer of the obligation to pay any outstanding Fees under all Order Forms and SOWs.
2. (b)
   On termination or expiry of this Agreement: (i) the Subscription Period will end, and Customer's right to use SystemView will cease, and Customer will destroy (or return) all copies of SystemView and the Documentation; (ii) each party will return or destroy any Confidential Information of the other party in its possession or control; (iii) Customer will promptly pay HCL for any Services provided to the effective date of termination or expiry; and (iv) HCL will assist Customer, on request, with data extraction in a standard format for a reasonable fee.
3. (c)
   Clauses relating to confidentiality and privacy (including clause 3), Intellectual Property (including clause 6), limitations and exclusions of liability/warranties (including clauses 7 and 8), and termination (including this clause 9) and any other provision which by its nature should survive will survive termination or expiry of this Agreement.

11.1 Defined Terms

11.2 Interpretation

In this Agreement, unless the context otherwise requires: (a) headings are for ease of reference only and do not affect the meaning of this Agreement; (b) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; (c) words in the singular number include the plural and vice versa, "includes" means includes without limitation, and any gender includes the other genders; (d) the word "acknowledge" is to be interpreted as "acknowledge and agree"; (e) a reference to "$" or "dollar" is to the Australian dollar; (f) a reference to legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them; and (g) if the date on or by which any act must be done under this Agreement is not a business day (at HCL's location), then the act must be done on or by the next business day.