BACKGROUND

(A) The Supplier is in the business of providing the Available Services.

1. B) The Customer wishes to obtain, and the Supplier wishes to provide the Available Services on the terms set out in this agreement

1. Definitions and interpretation

1.1         Capitalised terms or expressions used in this agreement have the meanings set out in this clause.

.          APP: means an Australian Privacy Principle as defined in the Privacy Act.

.            APP Entity: has the meaning given in the Privacy Act.

.          Applicable Laws: all applicable laws, statutes, regulations, and codes from time to time in force.

.         Available Services: the services as set out in Schedule 1

.           Business Day: a day on which banks are open for business in Victoria and aligned to the same across other states, other than a Saturday, Sunday, or public holiday in that city.

.         Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

.         Change Order: has the meaning given in cause 9.1.

. Commencement Date: the date when the agreement has been signed by all the parties.

. Conclusion Date: 12 months from the signed commencement date for the Statement of Work.

.         Consumer Price Index: The Consumer Prices Index (All Groups) (Australia) published by the Australian Bureau of Statistics.

.         Control: the definition given to that term in section 50AA of the Corporations Act, and the expression change of control shall be construed accordingly.

.         Corporations Act: The Corporations Act 2001 (Cth).

.         Customer’s Employees: any employee, director, officer, agent, consultant, contractor (including sub-contractors), and Customer Representatives of the Customer, who participates in the Employee Benefit Program or is provided with the Supplier’s Available Services outside of that Employee Benefit Program.

.         Customer Employee Data: means Personal and Sensitive Information about a current or former Customer Employee, and includes all information collected to provide, or in providing the Available Services to a Customer Employee.

.         Customer’s Equipment: any equipment, including tools, systems, cabling, or facilities, provided by the Customer, its agents, subcontractors, or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a Statement Of Work.

.         Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Works, including the items provided pursuant to clause 5.1b)

.          Customer’s Representative: has the meaning given in clause 5.2a).

. Data Breach Investigation: an investigation as required to be carried out in accordance with clause 13.5c)

.          Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information the Supplier has collected, held, used, or disclosed in the course of or relating to this agreement.

.          Deliverables: any output of the Works to be provided by the Supplier to the Customer as specified in a Statement Of Work and any other documents, products and materials provided by the Supplier to the Customer in relation to the Works (excluding the Supplier’s Equipment and Customer Employee Data).

.           Eligible Data Breach: an eligible data breach as that term is defined in the Privacy Amendment (Notifiable Data Breaches) Act 2016 (Cth), occurring on or after 22 February 2018.

.           Employee Benefit Program: a program that is operated by the Customer to provide benefits to its Customer Employees (or some thereof) and as part of that program, the Customer provides access to the Supplier’s Available Services under the terms of this agreement.

.           Government Agency: any government or governmental, administrative, monetary, fiscal, or judicial body, department, commission, authority, tribunal, agency, or entity in any part of the world.

.           GST: goods and services tax chargeable under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

.           GST Law: has the same meaning as “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

.           Health and Safety Legislation: means: (a) all relevant State and Territory laws, awards, proclamations, together with any directions on safety or notices issued by any relevant authority; (b) any relevant codes of practice or compliance codes; and (3) any Customer or client of the Customer’s policies, processes, or procedures or such others notified under this agreement, relating to occupational health and safety or work health safety.

.           Interest Rate: the most recent cash rate announced and published by the Reserve Bank of Australia.

.           Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, circuit layout designs, topography rights and database rights, plant variety and plant breeder rights, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and technical data), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future anywhere in the world.

.           Losses: means claims, actions, liabilities, expense, losses, damages, and costs (including, but not limited to, legal costs on a full indemnity basis, whether incurred by or awarded against a party) and includes those losses arising out of any third-party claim.

.           Mandatory Policies: the Customer’s business policies and codes listed in. (if appropriate), as amended by notification to the Supplier from time to time.

.           Milestone: a date by which a part or all of the Works is to be completed, as set out in a Statement Of Work.

.           Personal Information: has the meaning given to it in the Privacy Act.

.           Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.

.           Reference Charges: the standard charges for the Available Services or the method for their

procedures or such others notified under this agreement, relating to occupational health and safety or work health safety.

.           Sensitive Information: has the meaning given to it in the Privacy Act.

.           Reference Charges/Agreement Charges: the sums payable for the engagement mechanism

.           Statement Of Work: a detailed plan, agreed in accordance with clause 3 describing the services to be provided by the Supplier.

.           Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Works, including any such items specified in a Statement Of Work, but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.

.           Supplier Personnel: means an individual (or incorporated business and their authorised employees, officers, agents or subcontractors), who is employed or contracted by the Supplier as an independent contractor, to provide health services as either a registered health practitioner or other health service provider, including as a: psychologist, social worker, counsellor, or psychotherapists, and provides those services via a Telehealth Consultation or otherwise to Employee Customers.

. Supplier’s Representative: has the meaning given in clause 4.3.

. Telehealth Consultations: means a telehealth appointment booked by an Employee Customer to receive Telehealth Services by a Supplier Personnel.

. Telehealth Services: means the delivery or facilitation of health and related services, including mental health and psychological services, client education, health information services, and self-care via telecommunications and digital communications technologies. 

. Third Party Software: means any software described in the Statement of Work as being software, which is owned by a third party, but which will be supplied by or via the Supplier and forms part of the Available Services.

. Works: the services which are provided by the Supplier under a Statement Of Work, including services which are incidental or ancillary to the Works.

1.2                 In this agreement the following rules of interpretation apply, unless the contrary intention appears, or context otherwise requires:

(a)                headings and subheadings are for convenience only and do not affect the interpretation of this agreement;

(b)                references to clauses, Schedules, annexures, appendices, attachments, and exhibits are references to the clauses of, and the Schedules, annexures, appendices, attachments and exhibits to, this agreement;

(c)                references to parties are references to the parties to this agreement;

(d)                references to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives;

(e)                words denoting the singular include the plural and words denoting the plural include the singular;

(f)                 words denoting any gender include all genders;

(g)                the word “person” includes any individual, corporation or other body corporate, partnership, joint venture, trust, association, and any Government Agency;

(h)               a reference to a body (other than a party to this agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions;

(i)                a reference to any agreement or document (including this agreement) includes any amendments to or replacements of that document;

(j)                a reference to a law includes:

(i)                 legislation, regulations, and other instruments made under legislation and any consolidations, amendments, re-enactments, or replacements of them;

(ii)                any constitutional provision, treaty, or decree;

(iii)               any judgment;

(iv)               any rule or principle of common law or equity,

and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts;

(k)                any promise, agreement, representation, or warranty given or entered into on the part of two or more persons binds each of them severally;

(l)                any promise, agreement, representation, or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally;

(m)                no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this agreement;

(n)                 if a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day

(o)                a reference to time is a reference to Victorian time unless otherwise specified;

(p)                a reference to a day is to be interpreted as the period of time commencing at midnight and ending twenty-four (24) hours later;

(q)                 if any act is required to be performed under this agreement by a party on or by a specified day and the act is performed after 11.59 pm on that day, the act is deemed to be performed on the next day;

(r)                a reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency;

(s)                specifying anything in this agreement after the terms “include”, “including”, “includes”, “for example”‘, “such as” or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;

(t)                   this agreement includes all Schedules, annexures, appendices, attachments and exhibits to it;

(u)                references to a document in agreed form are to that document in the form agreed by the parties and initialled by them or on their behalf for identification;

(v)                where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(w)                an agreement other than this agreement includes a deed, undertaking or legally enforceable agreement or understanding whether in writing or not; and 

(x)                if there is any conflict between the terms of the main body of this agreement and the terms of this agreement’s Schedules and attachments, the terms of the main body of this agreement will prevail.

2. Commencement and term

2.1                 This agreement starts on the Commencement Date and, unless terminated earlier in accordance with clause 17 ends when either party gives to the other party three (3) months’ written notice to terminate, such notice to terminate only:

(a)                to be served after the first anniversary of the Commencement Date; and

(b)                taking effect on the completion of all Statements Of Work entered into before the date on which the notice to terminate is served.

2.2                 If there are no uncompleted Statements Of Work as at the date notice to terminate is served under clause 21. such notice will terminate this agreement with immediate effect.

2.3                    The parties will not enter into any further Statements Of Work after the date on which notice to terminate is served under clause 2.1.

3. Statements of work

3.1                       During the Term, the Customer may procure any of the Available Services by agreeing a Statement Of Work with the Supplier in accordance with this clause 3.

3.2                The Supplier will provide the Works from the date specified in the relevant Statement Of Work.

3.3                Each Statement Of Work must be agreed in the following manner:

(a)                the Customer must ask the Supplier to provide any or all of the Available Services and provide the Supplier with as much information as the 

Supplier reasonably requests in order to prepare a draft Statement Of Work for the Available Services requested;

(b)                following receipt of the information requested from the Customer the Supplier must, as soon as reasonably practicable either:

(i)                  inform the Customer that it declines to provide the requested  Available Services; or

(ii)                 provide the Customer with a draft Statement Of Work;

(c)                if the Supplier provides the Customer with a draft Statement Of Work pursuant to clause 3.3b)ii) the Supplier and the Customer must discuss and agree that draft Statement Of Work; and

(d)                 both parties agree to sign the draft Statement Of Work when it is agreed.

3.4                Unless otherwise agreed, the SOW Charges must be calculated in accordance with the Reference Charges.

3.5                   Once a Statement Of Work has been agreed and signed in accordance with clause 3.3d), no amendment will be made to it except in accordance with clause 9. 

3.6                  Each Statement Of Work will be part of this agreement and will not form a separate contract to it, and it may include special terms and conditions that form part of the Supplier and Customer’s assignment and are set out in the Statement of Work.

3.7                  If there is an inconsistency between the terms set out in this document and the terms set out in a Statement Of Work, this document prevails to the extent of the inconsistency.

4. Supplier’s obligations

4.1                 The Supplier must use reasonable endeavours to provide the Works, and deliver any Deliverables to the Customer, in accordance with a Statement Of Work in all material respects.

4.2                The Supplier must use reasonable endeavours to meet any performance dates specified in a Statement Of Work, but any such dates will be estimates only and time for performance by the Supplier will not be of the essence of this agreement.

4.3                The Supplier must identify a representative who is appointed in respect of the relevant Works to be performed (Supplier’s Representative).

4.4                The Supplier:

(a)                warrants that the Supplier’s Representative has authority to contractually bind the Supplier on all matters relating to the relevant Works under that Statement Of Work (including by signing Change Orders); and

(b)                may replace the Supplier’s Representative and any Supplier Personnel from time to time where reasonably necessary in the interests of the Supplier’s business.

4.5                The Customer acknowledges the primary duty of care placed upon it by Health and Safety Legislation to its Customer Employees, and without limiting that duty in any way, the Supplier and Supplier Personnel must use reasonable endeavours to observe health and safety and security requirements that apply at the Customer’s premises, and that have been communicated to it under clause 5.1 d), provided that it will not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.

5. Customer’s obligations

5.1                 The Customer must:

(a)                provide reasonable assistance to the Supplier in all matters relating to the Works;

(b)                provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under this agreement or otherwise reasonably required by the Supplier in connection with the works and ensure that they are accurate and complete;

(c)                 Per clause 5.1 (b) this data will be held and treated according to clause 13 of this agreement

(d)                 provide, for the Supplier, its Customer Employees, access to the Customer’s premises, data and other facilities as reasonably required by the Supplier including any such access as is specified in a Statement Of Work;

(e)                inform the Customer Employees of any requirements, policies or procedures of the Supplier that relate to the Available Services, including those set out in the Statement Of Work, and ensure that those Customer Employees, who participate  in  the  Available Services are    provided    with    all  necessary information about the operation and provision of the Available Services; and

(f)                reasonably co-operate with the Supplier to ensure the effective, safe, and successful implementation and establishment of the Available Services as part of the Customer Employee Benefit Program.

5.2                  The Customer:

(a)                must identify in each Statement Of Work a representative who is appointed in respect of the relevant Works to be performed (Customer’s Representative); and

(b)                warrants that the Customer’s Representative has authority to contractually bind the Customer on all matters relating to the relevant Works under that Statement Of Work (including by signing Change Orders).

5.3                The Customer must ensure that the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all relevant industry standards or requirements and those of the Supplier to provide the Available Services.

5.4                 Before the date on which the Works are due to start, the Customer must obtain and maintain all necessary licences and consents and comply with all relevant legislation (to the extent related to the Customer’s business, premises, staff or equipment) as required to enable the Supplier to provide those Works, including in relation to the:

(a)                installation of the Supplier’s Equipment;

(b)                use of all Customer Materials; and

(c)                use of the Customer’s Equipment.

5.5                The Customer must keep, and maintain, the Supplier’s Equipment in accordance with the Supplier’s instructions from time to time and not use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation, and is at the Customer’s risk at all times, expect to the extent that its damage or destruction is caused, or contributed to, by the Supplier.

5.6               The Customer must comply with any additional responsibilities as set out in the relevant Statement Of Work.

5.7                 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, or Customer Employees then, without prejudice to any other right or remedy it may have, the Supplier will be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

6. Subcontracting

6.1                   The Customer acknowledges and agrees that the Supplier may subcontract any obligations under this Agreement without the prior written consent of the Customer.

6.2                   The Supplier will use reasonable endeavours to ensure that the Supplier Personnel comply with the terms of this agreement and enter into an agreement that imposes the same or similar obligations as the Supplier has under this agreement.

7. Supplier Personnel (roles and responsibilities)

7.1                   The Customer acknowledges and agrees that:

(a)                the Supplier Personnel are each responsible for providing Telehealth Services via the Telehealth Consultations or by other means to the individual Customer Employees in either their registered or health provider capacity and remain liable for carrying out and completion of any of those Telehealth Services that they provide. To the extent permitted by law, the Customer discharges the Supplier from any obligation, or Losses caused by or arising from the acts, defaults, negligence or wilful misconduct of its Supplier Personnel, except to the extent that any negligent act or omission or wilful misconduct by the Supplier or its employees caused or contributed to the relevant liability;

(b)                it must satisfy itself that the Supplier Personnel meet its requirements under the Statement of Works;

(c)                 the Supplier Personnel perform the Work, and are approved by the Customer to do so;

(d)                where there is any complaint made about the conduct or otherwise of a Supplier Personnel by it or a Customer Employee, that it must notify the Supplier in writing of the complaint within at least five (5) Business Days from when the complaint was first brought to its attention. Where there is a complaint, the Supplier may do any or all of the following:

(i)                   secure a substitute Supplier Personnel acceptable to the Customer and within a reasonable timeframe;

(ii)                 restrict access to a Customer Employee by a Supplier Personnel; and/or

(iii)               take any other steps that the Supplier considered reasonable to address the Customer’s complaint.

If securing a replacement creates additional costs and expenses for the Supplier, the Supplier and Customer agree to discuss the allocation of those costs and expenses between the parties.

7.2                 In respect to the Supplier Personnel listed in Schedule 5, the Supplier must use reasonable endeavours to ensure that:

(a)                the Supplier Personnel have the necessary, relevant expertise, accreditation and the appropriate types and amounts of insurance to perform the Work as required by relevant laws, and will use reasonable care and skill in the selection of the Supplier Personnel, but does not warrant that the provision of Telehealth Services by the Supplier Personnel to a Customer Employee will either maintain or improve any condition or health concern;

(b)                if reasonably requested, the Supplier will provide a copy of the relevant independent contractor agreement to the Customer.

8. Non-solicitation

The Customer must not, without the prior written consent of the Supplier, at any time from the date on which any Works commence to the expiry of three (3) months after the completion of such Works, canvass, solicit, interfere with or entice away, or attempt to canvass, solicit, interfere with or entice away, from the Supplier or employ or engage or attempt to employ or engage any person who is, or has been, engaged as an employee, consultant, contractor or subcontractor of the Supplier in the provision of such Works in the twelve (12) month period prior to completion of the Works.

9. Changes

9.1                       Either party may propose changes to the scope or execution of the Works, but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order is a document which sets out the proposed changes and the effect that those changes will have on:

(a)                 the Works;

(b)                the SOW Charges;

(c)                 the timetable for the Works; and

(d)                any of the other terms of the relevant Statement Of Work.

9.2                If the Supplier wishes to make a change to the Works, it must provide a draft Change Order to the Customer.

9.3                If the Customer wishes to make a change to the Works:

(a)                it must notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed change; and

(b)                the Supplier must, as soon as reasonably practicable after receiving the information at clause 9.3a) provide a draft Change Order to the Customer.

9.4                If the parties:

(a)                agree to a Change Order, they must sign it and that Change Order will amend the relevant Statement Of Work; or

 are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 29.

(b)             The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 9 in a time and materials basis at the Supplier’s daily rates specified.

10. Charges, Payments and Session Availability

10.1                In consideration of the provision of the works by the Supplier, the Customer must pay the agreed charges aligned to agreed engagement mechanism.

10.2 The agreed engagement mechanism is outlined in the agreement table and forms the basis of this agreement.

10.3  The number of hours per employee as sponsored by the Customer will be detailed in the pricing table and form part of the engagement mechanism per section 10.2

10.4  The invoicing of the agreed engagement mechanism whilst detailed in this service agreement, will be aligned to the Master Service Agreement provided by the Citation group and align to the invoicing terms detailed.

10.5 Annual roll over of agreed maximum number of sessions allocated per client shall refresh for a subsequent 12 months from the date of initial agreement and continue at such frequency until continuation of the provisioned service is concluded per section 17.

10.6 Fair Use Policy:  In the case that all sessions budgeted for are utilised before the end of the contractual term, the remaining value of the contract is to be invoiced in full or in the event of new contract being agreed to with a reforecast of contract value, the remaining value of the existing agreement will be added to and recalculated against future contract/engagement.

10.7            The agreement mechanism and stated charges exclude the following, which will be payable by the Customer monthly in arrears, following submission of an appropriate invoice and agreement in a Statement Of Works:

(a)                the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Works; and

(b)                the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Works as such items and their cost are approved by the Customer in advance from time to time.

10.8             The Supplier in discussion with the customer may increase the Reference Charges and any SOW Charges not calculated in accordance with the Reference Charges on an contractual basis with effect from each noted anniversary of the date of this agreement.

10.9              Any increase in the Reference Charges will affect:

(a)                the SOW Charges (to the extent that they are calculated in accordance with the Reference Charges) in Statements Of Work in force at the date the increase takes effect; and

(b)                the calculation of the SOW Charges for Statements Of Work entered into after the date the increase takes effect.

(b)                the Supplier may suspend part or all the Works until payment has been made in full.

(c)                 All sums payable to the Supplier under this agreement:

(i) are GST chargeable on those sums on delivery of a GST invoice; and

(ii) are inclusive of GST for services that have GST applicability (e.g. Psycho-ed services and webinars)

(iii) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) unless otherwise negotiated)

10.10 If this contract is terminated (as per section 17) and is a result of a customer related concern or initiated, any amounts paid will be forfeited by the customer. 

10.11 CPI Increase. You acknowledge and agree that our fees under this Agreement will be subject to an annual/contractual increase in accordance with the increase in the consumers price index (“CPI”) for the previous term (e.g.12 months). The percentage increase will be taken to be the most recent figure for CPI published in the quarter prior to the 12-month anniversary of the Agreement and not to exceed 4%.

11. Intellectual Property Rights

11.1                       In relation to any Deliverables:

(a)                the Supplier and its licensors will retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;

(b)                the Supplier grants to the Customer, or will procure the direct grant to the Customer of, a non-exclusive, royalty- free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the sole purpose of receiving and using the Works and the Deliverables in its business; and

(c)                the Customer must not sub-license, assign or otherwise transfer the rights granted in clause 11.b)

11.2                       In relation to the Customer Materials, the Customer:

(a)                and its licensors will retain ownership of all Intellectual Property Rights in the Customer Materials; and

(b)                grants to the Supplier a non- exclusive, royalty-free, non- transferable licence to copy and modify the Customer Materials for the term of this agreement for the sole purpose of providing the Works to the Customer.

11.3                       Notwithstanding any other clause under this agreement, the Customer acknowledges and agrees:

(a)                that all Customer Employee or Patient Data will remain the property of the Supplier; and

(b)                the Customer must not do or request to be done anything that would mean that the Supplier or the Supplier Personnel breach any relevant laws concerning the handling of that Customer Employee or Patient Data.

12. Compliance with laws and policies

12.1               In performing its obligations under this agreement, the Supplier must comply with:

(a)                the Applicable Laws; and

(b)                the Mandatory Policies, provided that the Customer gives the Supplier not less than one (1) months’ notice of any change to such policies.

12.2                  Changes to the Works required as a result of changes to the Applicable Laws or the Mandatory Policies shall be agreed via the change control procedure set out in clause 9.

13. Privacy 

13.1                       The Supplier warrants that for the purposes of this agreement, it agrees it is an APP Entity and complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.

13.2                       The Customer warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.

13.3                       If the Supplier collects, holds, uses, or discloses Personal Information in the course of or relating to this agreement, the Supplier must:

(a)                handle all Personal Information in accordance with the Supplier’s privacy policy;

(b)                only use Personal Information for the purpose of performing its obligations under this agreement; and

(c)                 other than in the performance of its Available Services and in accordance with its privacy policy, not disclose Personal Information to any third party without the Customer Employees’ prior written consent or as required bylaw.

13.4                       The Customer warrants that it:

(a)                will not provide any Sensitive Information to the Supplier or Supplier Personnel unless that information is necessary for the Supplier or Supplier Personnel to perform its obligations under the agreement and then only with the Supplier or Supplier Personnel’s specific written consent; and

(b)                has:

(i)                 made all necessary notifications required by APP 5, on behalf of itself, the Supplier and Supplier Personnel to; and

(ii)                obtained all necessary consents required by APP 6 from,

the individuals whose Personal Information it is disclosing to the Supplier or Supplier Personnel in the course of this agreement, including its Customer Employees, to enable the Supplier and Supplier Personnel to lawfully use the Personal Information and perform its obligations in accordance with this agreement; and

(c)                will not request access to Customer Employees’ Personal or Sensitive Information that is held or stored by the Supplier or Supplier Personnel unless such as request complies with the Privacy Act and all other applicable privacy laws.

13.5              If the Supplier becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, the Supplier must:

(a)                immediately take reasonable steps to contain the Data Incident and prevent any further serious harm to affected individuals;

(b)                immediately notify the Customer in writing stating the:

(i)                 nature and details of the Data Incident;

(ii)                specific Personal Information affected; and

(iii)                actions taken by the Supplier at clause 13.5a)

(c)                identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within twenty (20) days of becoming aware of the Data Incident (Data Breach Investigation);

(d)                provide a copy of the report of the Data Breach Investigation in clause 13.5c) to the Customer on completion;

(e)                engage in discussions with the Customer regarding:

(i)                 the conduct and outcomes of the Data Breach Investigation; and

(ii)                 in the case of an Eligible Data Breach, whether the Customer or the Supplier will make the relevant notifications under the Privacy Act; and

(f)                   where it is agreed by the parties that the Supplier is making the relevant notifications, the Customer must

approve the notifications before they are made (such approval to be given promptly and not to be unreasonably withheld).

13.6                   Each party will ensure that its employees, contractors or advisors who are required to handle Personal Information in the course of this agreement are made aware of the obligations of that party in this clause 13.

13.7                Each party is responsible for the acts and omissions of its respective personnel (including subcontractors and advisors), and a breach by any such personnel is a breach by that party.

14. Confidentiality

14.1                 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives, or advisers) or the terms of this agreement, except:

(a)                where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);

(b)                if the Recipient is required to disclose the information by applicable law, provided that the Recipient has consulted with the provider of the information as to the form and content of the disclosure;

(c)                 where the disclosure is expressly permitted under this agreement;

(d)                if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this agreement or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;

(e)                where the disclosure is required for use in legal proceedings regarding this agreement; or

(f)                   if the party to whom the information relates has consented in writing before the disclosure.

14.2                 Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient’s obligations under this clause 14.

14.3               This clause 14 survives termination or expiry of this agreement.

14.4                The obligations of confidentiality in this clause 14 are not affected by the expiry or termination of this agreement.

15. Limitation of remedies and liability

15.1                 Nothing in this agreement limits or excludes the Supplier’s liability:

(a)                 for death or personal injury caused by its negligence or wilful misconduct;

(b)                for fraud or fraudulent misrepresentation by it; or

(c)                where liability cannot be limited or excluded by Applicable Laws.

15.2              Subject to clause 15.1 the Supplier, and its Supplier Personnel, exclude any liability to the Customer, and its Customer Employees, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including (but not limited to) any:

(a)                loss of profits;

(b)                loss of sales or business;

(c)                loss of production;

(d)                loss of agreements or contracts;

(e)                loss of business opportunity;

(f)                 loss of anticipated savings;

(g)                loss of or damage to goodwill;

(h)                loss of reputation; or

(i)                 loss of use or corruption of software, data, or information.

15.3              Subject to clause 15.1 the aggregate liability in respect of Losses based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, including any breach by the Supplier or Supplier Personnel of this agreement however arising in tort (including negligence), under any statute, law or other basis, will in no circumstances exceed three (3) times the total charges payable by the Customer to the Supplier under this agreement in that calendar year.

15.4                 This clause 15 survives the expiration or early termination of the agreement.

16. Insurance

16.1                 Each party has separately taken out or will take out and will maintain for the period the types and corresponding amounts of insurance required.

16.2                 Each party must, on request, promptly provide to the other party any certificates of currency for inspection.

16.3                 The Supplier warrants that the Supplier Personnel have taken out and will maintain for the period specified the types and corresponding amounts of insurance required.

16.4                 The Customer acknowledges and agrees that the Supplier Personnel are responsible in their own right for taking out, or having in place a third party professional indemnity insurance arrangement, that meets any registration standards for a health practitioner in the relevant area of practice, or if a registration standard is not in place, professional liability insurance as required.

17. Termination

17.1                 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a)                the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;

(b)                the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;

(c)                 the other party:

(i)                   is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise;

(ii)                 states that it is insolvent;

(iii)               is presumed to be insolvent under an Applicable Law (including under section 459C (2) or section 585 of the Corporations Act); or

(iv)               otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;

(d)                a liquidator or provisional liquidator is appointed to the other party;

(e)                an administrator is appointed to the other party under section 436A, section 436B or section 436C of the Corporations Act;

(f)                   a controller (as defined in section 9 of the Corporations Act) is appointed to the other party or any of its assets;

(g)                a receiver is appointed to the other party or any of its assets;

(h)                an application is made to a court for an order, or an order is made, that the other party may be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed to that other party, and that application is not withdrawn, struck out or dismissed within fifteen (15) Business Days of it being made;

(i)                    the other party enters an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;

(j)                    the other party proposes a winding- up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;

(k)                 the other party it is taken to have failed to comply with a statutory demand under section 459F (1) of the Corporations Act;

(l)                    a notice is issued to the other party under section 601AA or section 601AB of the Corporations Act;

(m)             the other party ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or

(n)                any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1 d)to clause 17.3 (inclusive).

17.2                 For the purposes of clause 17.1b material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:

(a)                a substantial portion of this agreement;

In deciding whether any breach is material no regard will be had to whether it occurs by some accident, mishap, mistake, or misunderstanding.

17.3                 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:

(a)                the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven (7) days after being notified to make such payment; or

(b)                there is a change of control of the Customer.

17.4                On  termination  of  this  agreement  under this clause 17;

(a)                all existing Statements Of Work will terminate automatically;

(b)                the Customer must immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;

(c)                 the Customer must, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s

Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;

(d)              the Supplier must on request return any of the Customer Materials not used up in the provision of the Works; and

(e)                the following clauses will continue in force: clause 1 (Interpretation), clause 8 (Non-solicitation), clause 11 (intellectual property rights clause 14 (Confidentiality 15, Limitation of remedies and liability, this clause 17 (termination), clause 21 (Waiver), clause 23 (Severability), clause 29 (multi-tiered dispute resolution procedure) and clause 30 

(Governing law and jurisdiction), and any other provision that by its nature survives termination of this agreement.

17.5                 Termination or expiry of this agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

17.6 Either party may terminate with 30 days written notice (and not per section 17). Where the termination is supplier initiated, any outstanding fees paid in advance will be refunded.

18. Force Majeure

18.1                 Neither party is in breach of this agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party’s control (Force Majeure Event).

18.2                 If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

18.3                 On providing the notice in clause 18.2 Affected Party will be entitled to a reasonable extension of time for performing its obligations under the agreement, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.

18.4                 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

18.5                 If the delay due to the Force Majeure Event continues for more than three (3) months, the Non-affected Party may terminate this agreement immediately on providing notice to the Affected Party.

19. Assignment, novation, and other dealings

19.1                 The Customer may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all its rights or obligations under this agreement without the prior written consent of the Supplier.

19.2                 If the Customer breaches clause 19.1 the Supplier may terminate this agreement.

19.3                clause 19.2 does not affect the construction of any other part of this agreement.

19.4                 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

20. Variation

20.1 Subject to clause 9 an amendment or variation of any term of this agreement must be in writing and signed by each party.

21. Waiver

21.1                 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power, or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

21.2                 Words or conduct referred to in clause 21.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

22. Remedies cumulative

22.1  Words or conduct referred to in clause 21.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel. Except as provided in this agreement and permitted by law, the rights, powers, and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this agreement.

23. Severability

23.1                 If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

23.2                 Clause 23.1 does not apply if the severance of a provision of this agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this agreement.

24. Entire agreement

This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations, and discussions in respect of its subject matter.

25. Relationship of the parties

25.1                 Nothing in this agreement gives a party authority to bind any other party in any way.

25.2                 Nothing in this agreement imposes any fiduciary duties on a party in relation to any other party.

26.    Notices

26.1                 A notice or other communication to a party under this agreement (Notice) must be in writing and may be provided via post, or email to either of the Customer or Supplier Representatives.

26.2                 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

27. Counterparts

This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this agreement.

28. Third party rights

28.1                 The Customer agrees that this agreement gives rise to express rights to third party Supplier Personnel, and who may enforce relevant terms of the agreement as against the Customer and its Customer Employees.

29. Multi-tiered dispute resolution procedure

29.1                 A party to this agreement claiming that a dispute has arisen from or in connection with this agreement (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this clause 26.

29.2                 Compliance with this clause is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.

29.3                 A party to this agreement claiming that the Dispute has arisen must give a written notice to the other party or parties to this contract in accordance with clause 26 if this agreement, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.

29.4                 Following service of the Dispute Notice, the Representative of the Customer and the Representative of the Supplier must meet promptly and attempt in good faith to resolve the Dispute.

29.5                 If the Representative of the Customer and the Representative of the Supplier have for any reason been unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute must be referred to the Senior Representative of the Customer and the Director of the Supplier who must attempt in good faith to resolve it.

29.6                 If the Senior Representative of the Customer and Director of the Supplier are for any reason unable to resolve the Dispute within fourteen (14) days of it being referred to them, the parties will attempt to settle it in good faith by mediation administered by the Dispute Settlement Centre of Victoria, in accordance with its Guidelines for Commercial Mediation applicable at the time the matter is referred to them and which are deemed to be incorporated into this agreement.

29.7                 This clause 29 survives termination or expiry of this agreement.

30. Governing law and jurisdiction

30.1                 This agreement is governed by the law in force in Victoria, Australia.

30.2                 Each party irrevocably submits to the non- exclusive jurisdiction of courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.

30.3                 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 9 on the basis that:

(a)                any proceeding arising out of or in connection with this agreement has been brought in an inconvenient forum; or

(b)                the courts described in clause 30.2 do not have jurisdiction.

SCHEDULE 1 AVAILABLE SERVICES 

TELEHEALTH SERVICES

1)         The Supplier operates a website at www.connectpsychservices.com.au (‘Website’), and

http://www.connectmymind.online/ (‘Website’), facilitates the delivery of Telehealth Services by engaging Supplier Personnel who provide those Services to individual Employee Customers under the Customer’s ‘Customer’s Employee Benefit Program’.

2)         The Supplier operates the Telehealth Services via Telehealth Consultations, and other face to face means where necessary, and appropriate at the Customer’s premises and using its facilities.

3)         The Employee Customers’ Telehealth Consultations are facilitated through the Supplier Website, where Employee Customers are taken to Third Party Software (Patient Management System) to complete the booking of their online Telehealth Consultation.

4)         The Telehealth Services provided by the Supplier Personnel will be provided on a confidential basis to each Customer Employee.

5)         The Customer is not provided any Personal Information or Customer Employee Data from the Supplier or Supplier Personnel as part of the Available Services.

6)         Customer Employee Health Records for each Customer Employee are maintained by the Supplier and its Supplier Personnel through another Third-Party Software (Patient Management System).

7)         The supplier will provide a range of de-identified reporting to the Customer relating to (but not limited to)

1. therapeutic reasons for engagement and outcomes
2. demographic breakdowns
3. Other de-identified reporting attributes to assist the Customer in their business management.

ADDITIONAL CLIENT SERVICES

The Supplier may provide additional services to the Customer that are in addition to the Telehealth Services and are set out below, and included as part of the Services (all services are priced separately and individually and listed in the engagement mechanism agreement table):

• Webinars and Learning forums Management training and coaching Crises debriefing sessions
• Other services as discussed between the Supplier and the Customer.

Critical Incident Support

Critical Incident Support is provided by The Trauma Centre Australia who have been engaged by Connect Psych Services as a trusted partner to provide services to our customers.

Definitions:

Trauma – a psychological or behavioural state resulting from severe mental or emotional stress or physical injury 

Critical Incident – A life-threatening or severe event(s) that may lead to trauma

Trauma Centre Australia will provide the following services:

• 24/7 critical incident response line. If you or any of your team have witnessed or experienced a life-threatening incident and waiting until 8am to speak to someone is not an option, we can help. We now have an experienced triage and 24/7 counselling team who can take your call at any time and provide immediate support. 
• 24/7 critical incident response. Emergency critical incident response in the event of a traumatic event occurring in the workplace. Practitioners will be on-site to assist in the recovery process;

How to Engage Trauma Centre Australia 

Employees who find themselves in a crisis situation are encouraged to call the Trauma Centre phone number of 03 9205 9488. The Employee is required to advise they are a client of Connect Psych Services and from which organsiation they are calling from.

Additionally in the Employee’s RISE portal (https://booking.connectpsychservices.com.au), the Trauma Centre centre number will be displayed to the Employee upon clicking ‘Crisis Support’ in the menu.

When to Engage TCA and the Use of Emergency Critical Incident and Trauma Response Service 

1. a) This is a specialist service in response to emergency or urgent request for assistance. It is provided (but not limited to) for loss of life, life-threatening, or severe events such as death or severe injury in the workplace, suicide, assault, armed robbery, natural disaster, or other catastrophes. 
2. b) In the event of a critical incident, your organisation’s authorised staff should ensure the safety and well-being of all affected parties and contact official emergency services by dialling 000. Once affected people are safe, please make immediate contact with the Trauma Centre to engage services. You will be guided through what may need to be acted on and managed and triage affected persons. A plan of immediate response will be put in place to manage the critical incident. This may involve telephone contact, or advice regarding attendance to any immediate safety or medical needs, management of notification of significant parties including emergency services, family, other staff, and/or the public. Ideally, and subject to triage and location, Trauma Centre Australia will endeavour to offer a professional to be on-site within 3 hours of notification of the event.

Engagement Fees

Engagement with the Trauma Centre Australia through Connect Psych Services is outlined in pricing agreement table with the appropriate fee’s listed.