Standard terms of use

1. Introduction

1.1 Service: Noted Limited (referred to in this agreement as we, us and our) has developed the Noted System. The Noted System is a health software system. The Noted System is made available to users as a service via the internet, called "the Service" in this agreement.

1.2 Application of Terms: This agreement sets out the basis on which we will provide and support, and you (as a user) may access and use, the Service.

1.3 EU and US users: By your acceptance of, and agreement to be bound by these Standard Terms of Use, you also agree that you are party to and bound by:

1.3.1 For EU users, Schedule 1; and

1.3.2 For US users, Schedule 2.

2. Subscription

2.1 Commencement of Subscription Period: Your use of the Service is subject to payment of the Fee by you or by someone else on your behalf, such as an organisation of which you are a member that has an agreement for the Service with us covering its members (the Organisation). The subscription fee that forms part of the Fee is payable monthly in advance and is calculated based on the number of Users. Unless we deduct the Fee from your account or it is paid by the Organisation, you must pay the Fee by the 20th of the month following the date of invoice and electronically in cleared funds without any set-off or deduction.

3. Provision of Service

3.1 Service: Subject to this agreement, we will provide the Service to you during the Subscription Period. You acknowledge that:

(a) we do not provide you with internet access or any computer equipment or software required to access the Service; and

(b) we may change the Service from time to time to provide bug fixes and/or new, replacement or improved features or functionality.

3.2 Optional Services: We may also from time to time offer optional services relating to the Service, such as special purpose software applications or reports. You may request any such services by contacting us. We will be under no obligation to provide such services until we have provided notice confirming our acceptance of your request.

3.3 Grant of Rights: Subject to this agreement, we grant you a non-exclusive, non-transferable, non-sub-licensable right to use the Service during the Subscription Period solely in connection with your lawful internal business purposes (Permitted Purpose).

3.4 Additional Fees: You acknowledge that we may charge additional fees if:

(a) as part of the ordinary development of its product, we add further functionality to the Noted System or

(b) at your or the Organisation's request, we develop additional functionality that is outside our planned product development and is not applicable to our other clients.

3.5 Reasonable Price: Where we intend to charge an additional fee under clause 3.4b, the parties, or we and the Organisation as the case may be, will enter into good faith negotiations to determine a reasonable price for the additional functionality.

3.6 Collaboration: You agree to work collaboratively with us to, among other things, provide us with data and feedback about the Service and the Noted System in a timely manner.

4. Your Responsibilities

You must:

4.1 No Other Use: not use the Service for any purpose other than the Permitted Purpose;

4.2 No resale: not resell or make available the Service to any third party, or otherwise commercially exploit the Service, without our prior written consent;

4.3 Third party information: ensure you have included such statements in your privacy policy as may be required in connection with any use of the Service, and ensure you have obtained any necessary consents and authorisations from individuals for the collection, storage, disclosure and use of all data and other information obtained from and/or relating to them which you store using the Service;

4.4 Login and Password: keep your log-in name and password secure and secret, and notify us immediately if you become aware of any unauthorised person accessing the Service using your log-in name and password;

4.5 Access: not permit anyone other than you to access or use the Service without our prior written consent;

4.6 Instructions: comply with our reasonable instructions relating to access to, and use of, the Service;

4.7 Laws: comply with all applicable laws when accessing and using the Service, including but not limited to all applicable laws relating to confidentiality and privacy;

4.8 Dealings: not sub-license, assign, transfer, lease, rent, distribute or resell the Service, or any rights to access or use the Service, to any other person without our prior written consent;

4.9 Security and Integrity: not attempt to undermine the security or integrity of our computing systems or networks (including the Noted System) or, where the Service is hosted by a third party, that third party's computing systems and networks;

4.10 Impairment: not use, or misuse, the Service in any way which may impair the functionality of the Service, or other systems used to deliver the Service or impair the ability of any other user to use the Service;

4.11 Unauthorised Access: not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access;

4.12 Harmful/Offensive/Illegal Content: not transmit, or input into the Service, any:

(a) files that may damage any other person's computing devices or software;

(b) content that may be offensive; or

(c) material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you or the relevant User do not have the right to use);

4.13 Copy or Modify etc: not, except as and to the extent permitted by law, copy, reproduce, translate, adapt, modify or create derivative works of the Service or any computer programs used to deliver the Service by any means or in any form without our prior written consent; and

4.14 Reverse Engineering: not reverse assemble or decompile the whole or any part of the Service or any computer programs used to deliver the Service.

5. Our Responsibilities

5.1 Care, Skill and Diligence: We will, in providing the Service and any other services under this agreement, act with reasonable care, skill and diligence.

5.2 Service Availability: We will use reasonable endeavours to ensure that the Service is available and providing (in all material respects) the functionality described in the Specifications at all times other than when we need to suspend access to the Service in order to carry out any software upgrades or other maintenance. If for any reason we have to interrupt the Service for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity. We do not guarantee that your access to, or use of, the Service will be uninterrupted, error or virus free.

5.3 Support: In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, email us at support@noted.com, or contact us via our Help and Support page.

6. Data/Privacy

6.1 This clause 6 does not apply to EU users.

6.2 Data Access: Subject to your rights under applicable laws, your right to edit the Data is contingent on full payment of any Fees payable when due. Your right to read-only access to the Data will be unaffected, subject to deletion of the Data under clauses 6.7 or 9.

6.3 Sharing Your Data: Subject to clause 7 below, we will not disclose or share your Data held in the Service except:

(a) where we are required by law to do so;

(b) to our service providers involved in providing the Service or as otherwise reasonably required to provide the Service to you; or

(c) where you have requested that we provide, or consented to us providing, your Data to a third party.

6.4 Data breaches: We are not liable, in any circumstances, for breaches of the applicable laws caused by you.

6.5 Data Security: While we adhere to best practice policies and procedures to keep your Data secure and confidential and have entered into appropriate arrangements requiring our service providers to keep your Data secure and confidential, we cannot guarantee that there will never be any unauthorised access to, or loss of, your Data. We expressly exclude liability for any loss of Data no matter how caused.

6.6 Use of Data: You consent to the collection, transfer, manipulation, storage, disclosure and other uses of your Data for the purposes of delivering the Service. We may store the Data in New Zealand and Australia and may access the Data from anywhere in the world.

6.7 Personal Information: We collect personal information about you for the purposes of providing the Service and all related purposes relating to this agreement. You have the right to ask for a copy of any personal information we hold about you, and to ask for it to be corrected if you think it is wrong.

6.8 Trial Subscription: Data input into the Service during the Trial Subscription will be deleted if you fail to upgrade to a Paid Subscription within 120 days of the Commencement Date.

7. Intellectual Property and Confidentiality

7.1 Ownership:

(a) We (or our licensors) own all Intellectual Property Rights in or relating to the Service and the Noted System. We will also own any new Intellectual Property Rights in anything developed by or on behalf of us in the course of providing, supporting or maintaining the Service as such rights arise.

(b) As between you and us, you own the Data.

7.2 Contributions or Suggestions: In the course of your use, you may make contributions or suggestions relating to the Service. To the extent that any such suggestions or contributions result in the creation of new Intellectual Property Rights relating to the Service, such Intellectual Property Rights will be owned by us. If requested, you agree to sign such documents as might be requested to assign such Intellectual Property Rights to us.

7.3 Confidentiality: Each party must, unless it has the prior written consent of the other party:

(a) keep confidential at all times the Confidential Information of the other party;

(b) effect and maintain adequate security measures to safeguard the other party's Confidential Information from unauthorised access or use; and

(c) disclose the other party's Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party's Confidential Information is aware of, and complies with, clauses 7.3a and b.

7.4 The obligation of confidentiality in clause 7.3a does not apply to any disclosure or use of Confidential Information:

(a) for the purpose of performing a party's obligations, or exercising a party's rights, under these Terms;

(b) as required by law (including under the rules of any stock exchange);

(c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

(d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

(e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

8. Liability

8.1 No Warranties: The provision of, access to, and use of, the Services is on an "as is" basis and at your own risk. To the extent permitted by law, we disclaim and exclude all representations, warranties and conditions, whether express, implied or statutory, relating to the Service and any other services we supply to you under this agreement. Without limiting the foregoing:

(a) we do not warrant that the access to or use of the Service will be uninterrupted or error free;

(b) we do not warrant that the Services will meet your requirements or that it they will be suitable for any particular purpose; and

(c) all warranties of fitness for purpose and non-infringement are excluded.

8.2 Consumer Guarantees: You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade and that the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms. You and we agree it is fair and reasonable that this clause 8.2 applies.

8.3 Adequacy: You must satisfy yourself as to the adequacy, appropriateness and compatibility of the Service for your requirements.

8.4 No Liability: To the maximum extent permitted by law, we will have no liability to you (or any other person) under or in connection with this agreement (whether in contract, tort or otherwise), for any Losses resulting, directly or indirectly, from any use of, or reliance on, the Service.

8.5 Back-stop Liability Provisions: If, notwithstanding clauses 8.1, 8.2, 8.3 and 8.4, we are liable to you under or in connection with this agreement or the Service or the Data then, to the fullest extent permitted by applicable law:

(a) we will have no liability to you in respect of any:

(i) indirect, consequential or special Losses suffered or incurred by you;

(ii) loss of data, profits, revenue, business or goodwill; or

(iii) Losses suffered or incurred by you, to the extent to which these result from any act or omission by you or your Users (including any breach of this agreement); and

(b) our maximum aggregate liability under or in connection with this agreement, the Data or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to 12 months' subscription fees.

8.6 Indemnity: you agree to indemnify us from and against any claim, cost or liability, including reasonable legal fees, arising directly or indirectly out of the use of the Service by you or any person for whom you are responsible in law.

9. Cancellation, Suspension and Termination

9.1 Cancellation by you: You may cancel your Subscription at any time by giving us notice in accordance with the process outlined via the Service. If you cancel your Subscription before the end of a month for which you have already paid, the Service will end immediately and you will not be charged again.

9.2 Suspension or Termination of Access to Service: Subject to your rights to access Data under applicable laws and these terms of use (including the applicable schedules), we may terminate your use of the Service at our sole discretion, for any reason, at any time, including (but not limited to):

(a) your Trial Period has expired, you have not upgraded to a Paid Subscription, and it is within 120 days of the Commencement Date;

(b) you have cancelled your Subscription;

(c) any fees or charges payable by or on your behalf under this agreement are 10 Business Days or more overdue for payment; or

(d) you have committed a material breach of this agreement,

and you have failed to pay those fees or charges in full or remedy that material breach to our satisfaction within 10 Business Days of receiving a notice from us specifying the relevant non-payment or breach and advising our intention to suspend or terminate access to the Service.

9.3 Where 9.2 applies, we will suspend the Service for up to 90 days. You may reactive your Subscription, subject to our agreement to do so, during this time. During the suspension of the Service, you will not have editable access to your Data, but you will be able to export your Data in a common electronic form, such as JSON. We do not warrant that the format of the Data will be compatible with any software. At the end of 90 days, unless you have reactivated your Subscription, your Data will be deleted and will not be able to be recovered.

9.4 Termination of this agreement does not affect either party's rights and obligations that accrued before that termination.

9.5 On termination of this agreement, unless your fees have been paid by the Organisation, you must pay all Fees for the provision of the Service prior to that termination.

9.6 We are not responsible for any loss you suffer, and no compensation is payable by us to you, as a result of the suspension and/or termination of this agreement for whatever reason, and you will not be entitled to a refund of any Fees that you or the Organisation have already paid.

9.7 Survival: Clauses which, by their nature, are intended to survive termination of this agreement continue in force, including clause 7 (Intellectual Property and Confidentiality) and clause 8 (Liability). This includes clauses in the schedules, as applicable.

10. Amendments

10.1 Amendments Proposed via Service: We may from time to time request that you accept certain amendments to this agreement (save for the provisions of Schedule 1 which may not be modified as set out in that Schedule) when you log-in to use the Service. Any such amendments will be effective if you accept them in the manner provided for acceptance. If you do not accept any such amendments, you will not be able to use the Service for the time being and you must contact us, in which case we will discuss the amendments with you and, if you will not agree to the amendments, either withdraw the amendments, agree revised amendments with you, or allow you to terminate this agreement.

11. General

11.1 Governing Law and Jurisdiction: These Terms, save for the terms in Schedule 1 and 2, are governed by the laws of New Zealand. You and we submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to them. The terms in Schedules 1 and 2 (and their annexes) shall be governed by the laws set out in that Schedule.

11.2 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

11.3 Dispute Resolution: The parties agree to attempt to amicably resolve any dispute concerning any rights or obligations of either of them under this agreement by doing the following:

(a) the party claiming a dispute has arisen will give written notice to the other specifying the nature and particulars of the dispute and will give a reasonable period of time for the other party to remedy the dispute; and

(b) the parties will endeavour, in good faith, to amicably negotiate and resolve the dispute between themselves.

11.4 Termination: If the parties fail to amicably resolve any such dispute within a reasonable period after the issuance of written notice, the party who issued the notice is entitled to terminate the agreement by giving written notice to the other party.

11.5 Entire Agreement: This agreement (including any Schedules hereto) together with any Letter of Agreement, records the entire understanding and agreement of the parties relating to the matters dealt with in this agreement. This agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.

11.6 Assignment: Neither party may transfer, sell, or assign this agreement, or any of its rights, obligations or duties under, without the prior written consent of the other party, such consent not to be unreasonably withheld.

11.7 Further Assurances: Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of this agreement.

12. Definitions And Interpretation

12.1 Definitions: In this agreement, unless the context indicates otherwise:

agreement means these Terms (including the Schedules hereto) together with any Letter of Agreement;

BAA means the Business Associate Agreement attached hereto as Schedule 2;

Business Day means Monday to Friday (New Zealand time) other than any public holiday observed in Wellington, New Zealand;

Data means any data input by you into the Service and any information or data the Service generates for you based solely on the input of such data;

Data Processing Agreement means the terms included as Schedule 1;

Commencement Date means the date that you commence using the Service;

EU user means users subject to EU law.

Fees means the fees set out on our website or in the applicable Letter of Agreement;

Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care or a lack of funds for any reason.

including and similar words do not imply any limitation;

Intellectual Property Rights means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know‑how and trade secrets, and operating manuals and training manuals;

Losses includes any loss, damage, liability, damages, cost or expense, including legal costs on a solicitor and own client basis;

Noted System means our electronic medical record system called Noted;

Organisation has the meaning set out in clause 2.1.

Paid Subscription means a subscription to the Service for a monthly fee;

Period means the duration of this agreement as selected by you on registering for the Service or set out in the applicable Letter of Agreement;

Permitted Purpose is defined in clause 3.3;

Personal Information has the meaning to that term in the Privacy Act 1993;

Service means the service involving the provision of access to the Noted System via the internet and all related activities performed by us as described on our website or in the applicable Letter of Agreement;

Specifications means the specifications published by us or made available on our website (or any replacement URL) or set out in the Letter of Agreement describing the features and functionality of the Service, as updated from time to time;

Letter of Agreement means any quote, Letter of Agreement, or services agreement to which these Terms are attached or incorporated by reference;

Subscription Period means the period commencing on the Commencement Date until termination, provided all fees payable in respect of your use of the Service are made;

Terms means these Standard Terms of Use;

Trial Period means a 30 day period from the Commencement Date;

Trial Subscription means a free subscription to the Service for the Trial Period;

User means each person registered by you to use the Service;

US user means users subject to US law; and

you means you or the person on whose behalf you are entering into the agreement.

12.2 Terms of use: Save for the terms in Schedules 1 and 2, if these Terms are inconsistent in any respect with the applicable Letter of Agreement, the Letter of Agreement prevails. The terms of Schedules 1 and 2 (as applicable) shall prevail over any inconsistent terms.

Schedule 1 – Applicable to all EU users

Data Processing Agreement

1. Definitions and interpretation

The following definitions and rules of interpretation apply in this Schedule 1.

1.1 Definitions:

Agreement: the terms of this Schedule 1

Authorised Persons: the persons or categories of persons that the Customer authorises to give the provider personal data processing instructions as identified from time to time.

Business Purposes: the services described in Annex A.

Customer: you or your Organisation (if applicable).

Data Subject: an individual who is the subject of Personal Data.

Data Protection Legislation: all legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Personal Data: personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

Standard Contractual Clauses (SCC): the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.

Terms of Use: the contract between Noted Limited and you to which this Agreement is Schedule 1.

The data exporter means the controller who transfers the personal data; The data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC.

The sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract.

The applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State of the EU in which the data exporter is established.

Technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

1.2 This Agreement is subject to the terms of the Terms of Use and is incorporated into the Terms of Use. Interpretations and defined terms set forth in the Terms of Use apply to the interpretation of this Agreement.

1.3 The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.

1.4 In the case of conflict or ambiguity between:

(a) any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;

(b) the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail;

(c) any of the provisions of this Agreement and the provisions of the Terms of Use, the provisions of this Agreement will prevail; and

(d) any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.

1.5 The clauses of this Schedule shall be governed by the law of the Member State in which the data exporter is established.

1.6 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

1.7 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

1.8 The parties undertake not to vary or modify the Clauses in this Schedule where mandated by the SCC. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

2. Personal data types and processing purposes

2.1 The Customer and the Provider acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and the Provider is the processor.

2.2 The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.

2.3 The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A which forms an integral part of the Agreement.

3. Third-party beneficiary clause

3.1 The data subject can enforce against the data exporter this clause 3, clause 4.1(b) to clause 4.1(i), clause 5.1(a) to clause 5.1(e) and clause 5.1(g) to clause 5.1(j), clauses 18.1 to 18.2, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4 and clauses 14.1 to 14.2 as third-party beneficiary.

3.2 The data subject can enforce against the data importer this clause, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4 and clauses 14.1 to 14.2, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.3 The data subject can enforce against the sub-processor this clause 3, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2, clauses 11.1 to 11.4 and clauses 14.1 to 14.2, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

4. Obligations of the data exporter

4.1 The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Annex B to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5.1(b) and clause 7.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Annex B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and

(j) that it will ensure compliance with clause 4.1(a) to clause 4.1(i).

5. Provider's obligations

5.1 The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/ or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Annex B before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex B which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

5.2 The Provider must promptly notify the Customer if, in its opinion, the Customer's instruction would not comply with the Data Protection Legislation.

5.3 The Provider will reasonably assist the Customer with meeting the Customer's compliance obligations under the Data Protection Legislation, taking into account the nature of the Provider's processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

5.4 The Provider must promptly notify the Customer of any changes to Data Protection Legislation that may adversely affect the Provider's performance of the Terms of Use.

6. Provider's employees

6.1 The Provider will ensure that all employees:

(a) are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data;

(b) have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and

(c) are aware both of the Provider's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.

7. Cooperation with supervisory authorities

7.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

7.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

7.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to clause 1.7. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5.1(b).

8. Security

8.1 The Provider must at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data including, but not limited to, the security measures set out in Annex B. The Provider must document those measures in writing and periodically review them to ensure they remain current and complete.

8.2 The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

(a) the pseudonymisation and encryption of personal data;

(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

(d) a process for regularly testing, assessing and evaluating the effectiveness of security measures.

9. Personal Data Breach

9.1 The Provider will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will, where practicable, restore such Personal Data at its own expense.

9.2 The Provider will without undue delay notify the Customer if it becomes aware of:

(a) any accidental, unauthorised or unlawful processing of the Personal Data; or

(b) any Personal Data Breach.

9.3 Where the Provider becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Customer with the following information:

(a) description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;

(b) the likely consequences; and

(c) description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.

9.4 Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer's handling of the matter, including:

(a) assisting with any investigation;

(b) providing the Customer with physical access to any facilities and operations affected;

(c) facilitating interviews with the Provider's employees, former employees and others involved in the matter;

(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and

(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.

9.5 The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer's prior written consent, except when required to do so by law.

9.6 The Provider agrees that the Customer has the sole right to determine:

(a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's discretion, including the contents and delivery method of the notice; and

(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

9.7 The Provider will cover all reasonable expenses associated with the performance of the obligations under clause 9.2 and clause 9.4 unless the matter arose from the Customer's specific instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will indemnify the Provider against expenses incurred.

9.8 The Provider will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to a Personal Data Breach to the extent that the Provider is found to have caused such a Personal Data Breach.

10. Cross-border transfers of personal data

10.1 The Provider (or any subcontractor) must not transfer or otherwise process Personal Data outside the European Economic Area (EEA) without obtaining the Customer's prior written consent (as provided for in clause 10.2 below).

10.2 The Customer hereby consents to the transfer and processing of Personal Data by the Provider outside the EEA as set out in Annex A.

10.3 Where such consent is granted, the Provider may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:

(a) the Provider is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Provider must identify in Annex A the territory that is subject to such an adequacy finding; or

(b) the Provider participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Provider (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the General Data Protection Regulation ((EU) 2016/679). The Provider must identify in Annex C the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Provider must immediately inform the Customer of any change to that status; or

(c) the transfer otherwise complies with the Data Protection Legislation for the reasons set out in Annex A.

10.4 If any Personal Data transfer between the Customer and the Provider requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting Personal Data to the Provider outside the EEA), the parties will complete all relevant details in, and execute, SCC, and take all other actions required to legitimise the transfer.

11. Subcontractors/Sub-processing

11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.

11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in clause 18.2 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.

11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

11.5 Those subcontractors approved as at the commencement of this Agreement are as set out in Annex C. The Provider must list all approved subcontractors in Annex C.

11.6 Where the subcontractor fails to fulfil its obligations under such written agreement, the Provider remains fully liable to the Customer for the subcontractor's performance of its agreement obligations.

11.7 The Parties consider the Provider to control any Personal Data controlled by or in the possession of its subcontractors.

11.8 On the Customer's written request, the Provider will audit a subcontractor's compliance with its obligations regarding the Customer's Personal Data and provide the Customer with the audit results. The Customer shall pay the reasonable costs of the Provider in carrying out such an audit.

12. Complaints and data subject requests

12.1 The Provider must, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:

(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and

(b) information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.

12.2 The Provider must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation.

12.3 The Provider must notify the Customer within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.

12.4 The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request, for which the Customer shall pay the reasonable costs for such assistance.

12.5 The Provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer's request or instruction, as provided for in this Agreement or as required by law.

13. Term and termination

13.1 This Agreement will remain in full force and effect so long as:

(a) the Terms of Use remains in effect; or

(b) the Provider retains any Personal Data related to the Terms of Use in its possession or control (Term).

13.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Terms of Use in order to protect Personal Data will remain in full force and effect.

13.3 The Provider's failure to comply with the terms of this Agreement is a material breach of the Terms of Use. In such event, the Customer may terminate any part of the Terms of Use authorising the processing of Personal Data effective immediately on written notice to the Provider.

13.4 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations, the parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within a reasonable period, they may terminate the Terms of Use on written notice to the other party.

14. Data return and destruction

14.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

14.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in clause 14.1. The Customer shall meet the reasonable costs of the audit.

14.3 At the Customer's request, the Provider will give the Customer a copy of or access to all or part of the Customer's Personal Data in its possession or control in a common electronic format, such as JSON. This may be by provision of a secure internet link from where the Customer may download the Personal Data. The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.

14.4 On termination of the Terms of Use, or termination of the authority to process the Customer's Personal Data for any reason or expiry of the term of the Terms of Use, the Provider will return all or any Personal Data related to the Terms of Use and this Agreement in its possession or control in a common electronic format, such as JSON (this may be by provision of a secure internet link from where the Customer may download the Personal Data). The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.

14.5 The Provider will certify in writing that it has destroyed the Personal Data if requested to do so by the Customer.

15. Records

15.1 The Provider will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Customer, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 8.1 (Records).

15.2 The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider's compliance with its obligations under this Agreement and the Provider will provide the Customer with copies of the Records upon request.

15.3 The Customer and the Provider must review the information listed in the Annexes to this Agreement periodically to confirm its current accuracy and update it when required to reflect current practices.

16. Audit

16.1 The Customer will pay the Provider's reasonable costs of any audit carried out under these clauses.

16.2 At the Customer's written request, the Provider will:

(a) conduct an information security audit before it first begins processing any Personal Data and repeat that audit periodically;

(b) produce a written report that includes detailed plans to remedy any security deficiencies identified by the audit;

(c) provide the Customer with a copy of the written audit report; and

(d) remedy any deficiencies identified by the audit within a reasonable period.

17. Indemnity

17.1 The Customer shall indemnity the Provider against all against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Provider as a result of the Customer's specific instructions, negligence, wilful default or breach of this Agreement.

18. Liability

18.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

18.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 18.1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.

18.3 The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

18.4 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in clauses 18.1 and 18.2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

ANNEX A Personal Data Processing Purposes and Details

Data exporter

The data exporter is the Customer.

Data importer

The data importer is Noted Limited

Data subjects

The personal data transferred may include:

  • the Customer,
  • Customer's staff and contractors,
  • Customer's clients and their families,
  • Customer's suppliers.

Categories of data

The personal data transferred concern the following categories of data:

  • Demographic information, including name, contact details and date of birth;
  • Financial information, including insurance information
  • Occupational information
  • The information as described in special categories of data below

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

  • Racial or ethnic origin
  • Religious beliefs
  • Health data
  • Genetic data
  • Sexual history
  • Sexual orientation

Processing operations

The personal data transferred will be subject to the following basic processing activities:

  • Storage
  • Modifying
  • Exporting
  • Correlation
  • Viewing
  • Printing
  • Deletion as initiated by the Customer in accordance with the functionalities offered by the Noted System

ANNEX B Legal Basis for processing and approved subcontractors

This Annex B forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/ legislation attached):

1. Information Security Program

Noted will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to:

a. help Customers secure Customer Data against accidental or unlawful loss, access or disclosure;

b. identify reasonably foreseeable and internal risks to security and unauthorised access to Noted systems; and

c. minimise security risks, including through risk assessment and regular testing.

Noted will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:

1.1 Network Security

Noted systems will be electronically accessible to employees, subcontractors and any other person as necessary to provide the Services. Noted will maintain access controls and policies to manage what access is allowed to Noted systems by each user, including the use of firewalls or functionally equivalent technology and authentication controls. Noted will maintain corrective action and incident response plans to respond to potential security threats.

1.2 Physical Security

Noted's physical facilities are maintained in a secured (locked) state. Locks and alarm systems are in place. Noted provides access to its physical facilities only to those employees and contractors who have a legitimate business need for such access privileges. All electronic access and storage devices are secured at the end of each work day. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked.

2. Continued Evaluation

Noted will conduct periodic reviews of the security of its systems and the adequacy of its information security program as measured against industry security standards and its policies and procedures. Noted will continually evaluate the security of its electronic systems and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

ANNEX C Approved Subcontractors

The Provider's legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions:

  • Located in a country with a current determination of adequacy: New Zealand
  • Standard Contractual Clauses between Provider as "data exporter" and Provider affiliate or subcontractor as "data importer".

Approved Subcontractors:

  • Amazon Web Services, Inc

Schedule 2 – applicable to all US users

Business Associate Agreement

NOTE: Terms not otherwise defined herein will have the meanings ascribed to them in the TERMS OF USE.

"Business Associate" means "us."

"Covered Entity" means "you."

"Party" means either Business Associate or Covered Entity.

"Parties" means both Business Associate and Covered Entity, together.

Introduction

A. In conjunction with the performance of the Service provided by Business Associate to Covered Entity as described in the Terms of Use, Covered Entity will make available or transfer to Business Associate certain Protected Health Information (defined below), which is confidential and must be afforded special treatment and protection under the Privacy Rule (defined below) and the Security Rule (defined below), including the amendments to such rules contained in the HITECH Act (defined below).

B. The Parties acknowledge and agree that such Protected Health Information can be used or disclosed only in accordance with this Agreement, the Privacy Rule, and the Security Rule.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, Covered Entity and Business Associate, intending to be legally bound, agree as follows:

1. Definitions. Terms used, but not otherwise defined, in this Agreement have the same meaning as those ascribed to the terms in the Health Insurance Portability and Accountability Act of 1996 (as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (the "HITECH Act")) and the regulations promulgated thereunder as set forth in the Code of Federal Regulations ("C.F.R.") at Title 45, Part 160, Part 162 and Part 164, and other applicable laws (collectively, "HIPAA"). The following terms shall have the meaning ascribed to them in this Section. Other capitalized terms shall have the meaning ascribed to them in the context in which they first appear.

1.1 "Breach" means the acquisition, access, use, or disclosure of Protected Health Information in a manner not permitted by the Privacy Rule which compromises the security or privacy of the Protected Health Information, as described in 45 C.F.R. 164.402.

1.2 "Electronic Protected Health Information" means individually identifiable health information that is transmitted or maintained by electronic media as described in HIPAA.

1.3 "HHS" means the U.S. Department of Health and Human Services.

1.4 "Individual" means the person who is the subject of the Protected Health Information, has the same meaning as the term "individual" as defined in HIPAA, and includes a personal representative in accordance with 45 C.F.R. 164.502(g).

1.5 "Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information, C.F.R. at Title 45, Parts 160 and 164.

1.6 "Protected Health Information" has the same meaning as the term "protected health information" as described in HIPAA, limited to the information created or received by Business Associate from, or on behalf of, Covered Entity.

1.7 "Required by Law" has the same meaning as the term "required by law" as defined in HIPAA.

1.8 "Secretary" means the Secretary of HHS or his or her designee.

1.9 "Security Rule" means the Standards for the Security of Electronic Protected Health Information, C.F.R. at Title 45, Parts 160, 162 and 164.

1.10 "Unsecured Protected Health Information" has the same meaning as the term "Unsecured protected health information" as defined in 45 C.F.R. 164.402.

2. Permitted Uses and Disclosures by Business Associate.

2.1 General Uses and Disclosures. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity if such use or disclosure by Business Associate complies with the Privacy Rule's minimum necessary policies and procedures required of Covered Entity, and if such use or disclosure of Protected Health Information would not violate the Privacy Rule or the Security Rule if done by Covered Entity.

2.2 Limits on Uses and Disclosures. Business Associate agrees that Business Associate shall be prohibited from using or disclosing the Protected Health Information provided or made available by Covered Entity for any purpose other than as expressly permitted or required by this Agreement, or as Required by Law.

2.3 Use for Management, Administration, and Legal Responsibilities. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information for the proper management and administration of Business Associate or to carry out Business Associate's legal responsibilities.

2.4 Disclosure for Management, Administration, and Legal Responsibilities. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out Business Associate's legal responsibilities, provided that:

(a) The disclosure is required by Law; or

(b) Business Associate obtains reasonable assurances from the person to whom the Protected Health Information is disclosed that the Protected Health Information will remain confidential and will be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person.

3. Business Associate Obligations.

3.1 Appropriate Safeguards. Business Associate will establish and maintain reasonable and appropriate administrative, physical, and technical safeguards to:

(a) Prevent the use or disclosure of the Protected Health Information, other than as such use or disclosure is permitted by this Agreement; and

(b) Protect the confidentiality, integrity, and availability of the Electronic Protected Health Information that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity.

3.2 Reports of Improper Use, Disclosure, or Security Incidents. Business Associate agrees that it shall report to Covered Entity any:

(a) Use or disclosure of Protected Health Information not provided for, or allowed by, this Agreement; or

(b) Security incidents regarding the Electronic Protected Health Information of which Business Associate becomes aware.

3.3 Subcontractors and Agents. Business Associate will ensure that any agent, including a subcontractor, to whom Business Associate provides Protected Health Information, created or received by Business Associate on behalf of Covered Entity, agrees to:

(a) The same restrictions and conditions that apply to Business Associate in this Agreement to such Protected Health Information; and

(b) Implement reasonable and appropriate safeguards to protect the Electronic Protected Health Information.

3.4 Right of Access to Protected Health Information. Except as otherwise limited in this Agreement, Business Associate agrees to provide access to Protected Health Information in a Designated Record Set (if applicable and as defined in HIPAA) to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 C.F.R. 164.524, at the written request of Covered Entity.

3.5 Amendments to Protected Health Information. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set, if applicable, that Covered Entity directs or agrees to pursuant to 45 C.F.R. 164.526, at the request of Covered Entity or an Individual, and in a reasonable time and manner.

3.6 Access to Books and Records. Except as otherwise limited in this Agreement, Business Associate agrees to make Business Associate's internal policies, procedures, practices, books, and records relating to the use, disclosure, and safeguarding of Protected Health Information received from, or created or received by, Business Associate on behalf of Covered Entity available to the Secretary or Covered Entity, in a reasonable time and manner, for purposes of the Secretary's determining Covered Entity's compliance with the Privacy Rule and the Security Rule.

3.7 Documentation of Disclosures. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. 164.528.

3.8 Provide Accounting. Except as otherwise limited in this Agreement, Business Associate agrees to provide to Covered Entity or an Individual, in a reasonable time and manner, information collected in accordance with Section 3.7, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. 164.528.

3.9 Mitigation Procedures. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement.

3.10 Notification of Breach. During the term of this Agreement, Business Associate shall notify Covered Entity of any Breach of Unsecured Protected Health Information, not later than sixty (60) calendar days (except in the case of a delay by law enforcement in accordance with 45 C.F.R. 164.412) after Business Associate discovers such Breach. The notification will include, to the extent possible, the identification of each Individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during the Breach, as well as any other information available to Business Associate that Covered Entity is required to include in a notification to the Individual(s) under 45 C.F.R. 164.404(c).

4. Covered Entity Obligations.

4.1 Provide Notice. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. 164.520, as well as any changes to such notice, in a reasonable time and manner, when such copy of the notice or amended notice is required for compliance with the Privacy Rule.

4.2 Provide Changes of Authorization or Permission. Covered Entity shall provide, in writing and in a reasonable time and manner, Business Associate with any changes in, or revocation of, authorization or permission by an Individual to use or disclose Protected Health Information, if such changes affect Business Associate's permitted or required uses and disclosures.

4.3 Provide Restrictions. Covered Entity shall notify Business Associate, in writing and in a reasonable time and manner, of any restrictions to the use or disclosure of Protected Health Information changing Business Associate's obligations that Covered Entity has agreed to in accordance with 45 C.F.R. 164.522.

4.4 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule, the Security Rule, or this Agreement, if done by Covered Entity.

5. Term and Termination.

5.1 Term. The term of this Agreement shall commence when we first provide the Service, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity in compliance with Section 5.4.

5.2 Termination for Cause. Upon Covered Entity's knowledge of a material breach of this Agreement by Business Associate, Covered Entity shall provide written notice of such breach to Business Associate and provide an opportunity for Business Associate to cure the breach or end the violation, and if Business Associate does not cure the breach or end the violation within 30 days following the date Business Associate receives such written notice from Covered Entity, Covered Entity may immediately terminate this Agreement. Covered Entity may terminate this Agreement immediately without opportunity for cure if Business Associate and Covered Entity agree that cure is not reasonably possible or if Covered Entity deems such immediate termination to be appropriate under the circumstances.

5.3 Special Termination. In the event that any federal, state, or local law or regulation currently existing or hereinafter enacted, or any final or non-appealable construction or interpretation of such law or regulation (whether federal, state, or local) or enforcement of such laws or regulations hereinafter occurs that makes performance of this Agreement impossible or illegal, the Parties mutually agree to enter into a modification of this Agreement to make substantial performance of this Agreement possible. However, should the Parties be unable to agree upon an appropriate modification to comply with such requirements following 30 days of good faith negotiations, either Party may give written notice to immediately terminate this Agreement.

5.4 Effect of Termination.

(a) Except as otherwise limited in this Agreement, and except as provided in Section 5.4(b), upon termination of this Agreement, for any reason, Business Associate agrees to return all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, or, to the extent authorized by Covered Entity, destroy such Protected Health Information. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.

(b) Except as otherwise limited in this Agreement, in the event that Business Associate determines that returning, or as authorized by Covered Entity destroying, the Protected Health Information is not feasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction of the Protected Health Information not feasible. Upon mutual agreement of the Parties that return or destruction of Protected Health Information is not feasible, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction not feasible, for so long as Business Associate maintains such Protected Health Information.

(c) Except as otherwise limited in this Agreement, termination of this Agreement shall not relieve either Party from fulfilling any obligation under this Agreement that, at the time of termination, has already accrued to the other Party or which thereafter may accrue with respect to any act or omission that occurred prior to such termination.

6. General.

6.1 Amendments. Except as otherwise limited in this Agreement, the Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity (and if applicable, Business Associate) to comply with the requirements of the Privacy Rule, the Security Rule, and HIPAA. This Agreement may be amended only as set forth in Section 10.1 of the Terms of Use.

6.2 Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and the Parties' respective successors and permitted assigns.

6.3 Remedies Cumulative. All rights and remedies of the Parties under this Agreement shall be cumulative, and no such right or remedy shall exclude any other right or remedy allowed by law or equity.

6.4 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

6.5 Notices.

(a) Any notices or communications to be given under this Agreement by either Party to the other Party shall be deemed to have been duly given if given in writing and (i) personally delivered, (ii) sent by nationally recognized overnight courier, or (iii) sent by mail, certified, postage prepaid with return receipt requested, in each case, at the address for such other Party set forth below:

(A) If to Business Associate, addressed to:

Mr Scott Pearson
Noted Limited
Level 1
93 Cuba Street
Te Aro
Wellington 6011
New Zealand
Telephone Number: (617) 939 9292

(B) If to Covered Entity, addressed to Covered Entity at the address provided by Covered Entity hereunder.

(b) Notices delivered personally, by courier, shall be deemed communicated as of actual receipt. Mailed notices shall be deemed communicated as of 10:00 a.m. on the third business day after mailing. Any Party may change such Party's address for notice under this Agreement by giving prior written notice to the other Party of such change in the manner provided in this Section 6.6.

6.6 Cooperation. Both Business Associate and Covered Entity acknowledge that mutual cooperation and assistance is essential to each Party's performance under this Agreement; therefore, it will be the duty of both Parties to make all good faith efforts to fully cooperate in the performance of this Agreement.

6.7 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the United States of America.

6.8 Assignment. Business Associate may assign this Agreement on account of a merger, acquisition or other similar transaction affecting the ownership of Business Associate, without the Covered Entity's prior, express, and written consent. Except as set forth in the preceding sentence, neither Party shall assign this Agreement without the other Party's prior, express, and written consent, which consent shall not be unreasonably withheld, delayed, or conditioned.

6.9 Third Party Beneficiaries. Nothing in this Agreement shall be construed to create any third party beneficiary rights in any person or entity.

6.10 Waivers. The failure of a Party at any time or times to require performance of any provision of this Agreement shall in no manner affect such Party's right at a later time to enforce such provision. No waiver by a Party of any provision or breach of this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver in other any instance.

6.11 Force Majeure. Neither Party shall be liable or be deemed in breach of this Agreement for any failure or delay of performance that results, directly or indirectly, from acts of God, civil or military authority, public disturbance, acts of terrorism, accidents, fires, or any other cause beyond the reasonable control of either Party, and such non-performance shall not be grounds for termination.

6.12 Attorneys' Fees. Except as otherwise limited in this Agreement, if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, misrepresentation, or injunctive action in connection with any of the provisions of this Agreement, each Party shall bear their own legal expenses and other costs incurred in that action or proceeding.

6.13 Relationship. Business Associate is acting as an independent contractor of Covered Entity with respect to this Agreement. Nothing in this Agreement shall create or be deemed to create the relationship of employer/employee, partners, joint ventures, or principal-agent between the Parties. Except as otherwise set forth in this Agreement, (i) no Party shall have any authority to assume or create any obligation or responsibility whatsoever, express or implied, on behalf or in the name of the other Party or to bind the other Party in any manner whatsoever and (ii) no Party shall make any representation, warranty, covenant, agreement, or commitment on behalf of the other Party.

6.14 Regulatory References. A reference in this Agreement to a section in the Privacy Rule or the Security Rule means the section as in effect or as amended, and for which compliance is required.

6.16 Interpretation. In the interpretation of this Agreement, except where the context otherwise requires, (a) "including" or "include" does not denote or imply any limitation, (b) "or" has the inclusive meaning "and/or," (c) "and/or" means "or" and is used for emphasis only, (d) the singular includes the plural, and vice versa, and each gender includes each other gender, (e) captions or headings are only for reference and are not to be considered in interpreting this Agreement, (f) "Section" refers to a section of this Agreement, unless otherwise stated in this Agreement, and (g) "day" refers to a calendar day unless expressly identified as a business day. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits the Parties to comply with the Privacy Rule and the Security Rule.

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