Terms & Conditions
- 1. WHEREBY
Assure is engaged by [Short] to provide Employee Assistance Program (“EAP”) services to Eligible Parties in [Location] for the Term on the terms and conditions of this Agreement.
- 2. DEFINITIONS
2.1. In this Agreement
a) “Additional Services” means the EAP Services described as additional services in Schedule 1 of this Agreement and any other EAP Services that are not Included Services.
b) “Associated Entities” includes the organisations or partnerships trading as [Company] and each of the employees, agents, officers, directors, advisers, partners, consultants, contractors and associated entities of [Company].
c) “Assure Marks” means the Assure trademarks nominated by Assure from time to time.
d) “Assure Material” means any material provided by or to which access is given by Assure to [Short] for the purposes of this Agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
e) “Client Material” means any material provided by or to which access is given by [Short] to Assure for the purposes of this Agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means.
f) “Confidential Information” means:
i. all information acquired in connection with the EAP Services, including any personal information relating to:
a. Eligible Parties; and
b. clients of, and organisations and persons engaged by, [Short] and its Associated Entities;
ii. counselling records and files, matters discussed by Eligible Parties in counselling sessions; and
iii. the business of [Short] or its Associated Entities including know how, trade secrets, financial information, marketing information and business plans.
g) “EAP Services” means the Included Services and Additional Services described in Schedule 1 of this Agreement.
h) “Eligible Party” means each employee of [Short], its Associated Entities, and their Immediate Family Members (together referred to as “Eligible Parties”).
i) “Fees” means the fees for the particular EAP Services set out in Schedule 1 of this Agreement and any adjustment in Schedule 1 of this Agreement payable by [Short] to Assure.
j) “Immediate Family Members” includes a person’s:
i. spouse or partner (including a partner of the same sex, former spouse or de facto spouse);
ii. child of any age (including adopted child, step-child, foster child, ex-nuptial child);
iii. parent (including a foster parent or a legal guardian);
v. any other relation who currently resides with the employee;
vi. any other relation as mutually agreed between Assure and [Short].
k) “Included Services” means the EAP Services described as included services in Schedule 1 of this Agreement.
l) “Term” has the meaning given by clause 3(a).
- 3. DURATION AND TERMINATION
a) Subject to clauses 3(b) – (d), the parties agree that this Agreement commences on [Start Date] and, subject to earlier termination in accordance with clause 3(c) or 3(d), continues to [End Date].
b) This Agreement may be renewed or extended by written agreement of the parties, with any changes as considered necessary or reasonable by the parties. If either party wishes to extend the Term, it must give 30 days’ written notice to the other prior to the expiration of the Term.
c) Either party may terminate this Agreement at any time by giving 90 days written notice to the other party.
d) Either party may immediately terminate this Agreement by written notice to the other party if the other party:
i. breaches its obligations under this Agreement and fails to remedy such breach within 30 days of receiving written notice of the breach; or
ii. becomes subject to any form of insolvency administration or arrangement with creditors generally or becomes unable to pay its debts as and when they fall due.
e) Upon expiry or termination of this Agreement accrued rights and remedies are not affected. Expiry or termination of this Agreement will not affect clauses 5 (“Confidentiality and Intellectual Property”), 7 (“Publicity’), 9 (“Waiver”) and 10 (“Liability”) or any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination or expiry of this Agreement.
f) Without limiting any other rights or remedies of [Short], in the event of early termination by either [Short]or Assure (except in the event of termination by Assure under clause 3(d)), Assure will refund any portion of the fee paid in advance by [Short] and which relates to that part of the Term that falls after the early termination date.
g) For clarity, no amount is refundable by Assure to [Short] if this Agreement is terminated by Assure under clause 3(d).
a) For Early Access purposes, Eligible Parties may be permitted early access prior to the Commencement Date listed in the Service Agreement. As such, the same Terms and Conditions will apply to their early access. All early access cases are charged on a sessional basis at the EAP rate detailed in Schedule 1 of the Service Agreement. In addition, these cases will not contribute to utilisation (Annual Fee Contracts only) nor be included in reporting numbers, as they fall outside the official Commencement Date.
- 4. EAP SERVICES AND FEES
4.1. Assure must provide the Included Services for the Term.
4.2. From time to time [Short] may request that Assure provides Additional Services.
4.3. If Assure accepts a request contemplated by clause 4.2, Assure must endeavour to provide the Additional Services contemplated by that request.
4.4. [Short] must pay the Fees for the Included Services and any Additional Services in accordance with clause 4.
4.5. Assure must invoice [Short] for the Fees for the Included Services from time to time, plus or minus any adjustments contemplated by Schedule 1 of this Agreement.
4.6. If Assure accepts a request to perform any Additional Services as contemplated by clause 4.3, Assure must invoice [Short] for the Fees for those Additional Services from time to time.
4.7. [Short] must pay an invoice for Fees within 14 days of the date of the invoice.
4.8. If [Short] fails to pay any Fees in accordance with this Agreement, without limiting any other remedies available to Assure, Assure may defer performance of all EAP Services until the outstanding Fees are paid.
- 5. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
5.1. Assure acknowledges and agrees that, in the course of providing EAP Services, it may or will become aware of Confidential Information belonging to Eligible Parties and agrees to maintain the confidential nature of the Confidential Information in accordance with this clause 5.
5.2. Assure agrees that it must:
a) maintain the confidential nature of the Confidential Information;
b) only use the Confidential Information for the purposes of providing the EAP Services and ensure that only authorised personnel (including Assure’s sub-contractors) use and have access to the Confidential Information on a confidential basis and for the purpose of providing the EAP Services;
c) take reasonable steps to establish and maintain effective security measures to safeguard the Confidential Information from misuse, loss, unauthorised access, modification, copying or disclosure and use the same degree of care a reasonable person would use to protect that person’s Confidential Information;
d) comply with all applicable laws, codes of practice and guidelines (including privacy laws or data protection laws as may be in force from time to time) relating to privacy and the use of Confidential Information and the retention of records relating to the EAP Services;
e) not disclose to [Short] Confidential Information relating to an Eligible Party except with the written authority of that Eligible Party.
5.3. The parties acknowledge that Assure’s obligations of confidentiality under this clause 5 do not apply to the disclosure of any Confidential Information to the extent that:
i. it is required to be disclosed by Assure under any law or any order of any court or government agency or the rules of any securities exchange; or
ii. the information lawfully is or comes within the public domain (other than by breach of this clause).
5.4. Assure Material remains the property of Assure and nothing in this Agreement grants [Short] any intellectual property rights in the Assure Material or other intellectual property rights of Assure.
5.5. [Short] grants to Assure a non-exclusive, irrevocable, global, perpetual licence (including the right to sub-licence) to exercise the intellectual property rights in any Client Material in connection with Assure providing EAP Services.
- 6. TRADEMARKS
6.1. Assure grants to [Short] a non-exclusive, revocable licence to use the Assure Trade Marks for the Term for the sole purpose of implementing and promoting the EAP Services to Eligible Parties and solely in the manner approved by Assure from time to time.
6.2. [Short] must not bring Assure into disrepute or do or omit to do anything that is likely to bring Assure into disrepute.
- 7. PUBLICITY
Assure will not publicly advertise in any way its arrangements with [Short] or its Associated Entities or use [Short] or its Associated Entities as a reference point in any written solicitation to be engaged to provide services to any person (including, without limitation, any tender or response to tender) without the prior written consent of [Short] (which consent may be withheld in [Short]’s absolute discretion).
- 8. WARRANTIES
a) Assure will provide no less than a reasonable standard of care and level of service and abide by the standards of professional conduct consistent with the Australian Psychological Society Code of Ethics in performing the EAP Services.
b) Assure warrants that all personnel involved in the provision of the EAP Services have the required qualifications and experience to perform the EAP Services. At [Short]’s request, Assure must provide it with full particulars as to the qualifications and relevant experience of its personnel involved in performing the EAP Services for [Short] at any time.
- 9. NO WAIVER
Each party will observe all covenants, obligations and provisions contained in this Agreement. No waiver by either party of one breach of any covenant, obligation or provision in this Agreement contained or implied operates as a waiver of another breach of the same or of any other covenant, obligation or provision in this Agreement contained or implied.
- 10. LIABILITY
10.1 A reference to ‘Party’ or ‘Parties’ in Clause 10 refers to party as appropriate.
10.2. Subject to Clause 10.4 but notwithstanding any other provision in this Agreement to the contrary, to the maximum extent permitted by law, neither Party will be liable to the other Party for any claim for loss or damage, including Consequential Loss, arising under or in connection with this Agreement.
10.3. ‘Consequential Loss’ as referred to in Clause 10.2 means any indirect loss, loss of use, loss of production, loss of contracts or bargains, loss of amenity, loss of value, loss of revenue, loss of profits, loss of reputation, loss of savings or anticipated savings, loss of economic opportunities and loss from or due to corruption of data.
10.4. The limitation of liability in Clause 10.2 does not apply to:
a) a claim or claims for loss or damage for personal injuries including death directly caused or contributed to a Party in connection with this Agreement;
b) a claim or claims for loss or damage for property damage caused or contributed a Party in connection with this Agreement;
c) a claim or claims for or relating to any criminal or fraudulent act or omission or Wilful Misconduct by a Party in connection with this Agreement;
d) a claim or claims for or relating to the infringement of either Party’s intellectual property rights in connection with this Agreement;
e) a claim or claims by a Party for or relating to repudiation of the Agreement. (hereafter the Limitation of Liability Exception/s).
10.5. Any liability of a Party falling into one or more of the Limitation of Liability Exceptions in clauses 10.4(a) – 10.4(d) is limited to the proceeds available to the liable Party under the policies of insurance referred to in Clause 11.
10.6. Any liability of a Party falling into the Limitation of Liability Exception in Clause 10.4(e) is limited to any Fees paid by the liable Party under this Agreement in the twelve months prior to the other Party first suffering loss or damage.
10.7. ‘Wilful Misconduct’ as referred to in Clause 10.4(c) means any act or omissions done or omitted to be done deliberately or wilfully to cause loss and damage or with the intent to cause harm.
10.8. A ‘claim’ or ‘claims’ as referred to in Clause 10 includes and is not limited to any demand, action suit or proceeding of whatsoever nature whether informal or formal and commenced or to be commenced at any time.
10.9. For clarity, and without limiting clause 10.2, the Parties agree that clause 10.2 is to apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
10.10. If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by a Party in connection with this Agreement and that Party’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clause 10.2 does not apply to that liability and instead that Party’s liability for such failure is limited to (at that Party’s election), in the case of a supply of goods, that Party replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, that Party supplying the services again or paying the cost of having the services supplied again.
- 11. INSURANCE
Assure will hold and maintain insurance which insures it against claims and liabilities contemplated by the services performed under this Agreement (including appropriate public liability insurance and professional indemnity insurance).
- 12. REPRESENTATIVES OF EACH PARTY
Each party will nominate the principal points of communication and co-ordination for all matters pertaining to this Agreement.
- 13. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Queensland, Australia, and each party submits to the non-exclusive jurisdiction of the courts of Queensland, Australia. This Agreement constitutes the entire Agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement, and supersedes and cancels any previous agreement, understanding and arrangement relating thereto, whether written or oral. This Agreement may only be amended or varied by agreement in writing by the parties.
- 14. ACCURACY AND RELIANCE
[Short] represents and warrants, and it is a condition of this agreement, that:
a) all information provided by [Short] or on [Short]’s behalf to Assure is accurate and is not, whether by omission of information or otherwise, misleading;
b) [Short] has not withheld from Assure any document, information or other fact material to the decision of Assure to enter into this Agreement; and
c) [Short] did not rely upon any representation made to [Short] by Assure or any related body corporate of Assure prior to entry into this Agreement.
- 15. CONSENTS
Where this Agreement contemplates that Assure may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Assure may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless this Agreement expressly requires otherwise.
- 16. TAXES AND GST
16.1. Subject to clause 16.2., 16.3., 16.4., 16.5., and 16.6., [Short] must pay all taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed or levied in Australia or overseas in connection with the performance of this Agreement.
16.2. The consideration for a Supply made under or in connection with this Agreement does not include GST.
16.3. If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
a) the Recipient must pay the Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this Agreement for that Supply); and
b) the Supplier must give the Recipient a Tax Invoice for the Supply.
16.4. For clarity, the GST payable under clause 16.3. is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the Supplier is liable, however caused.
16.5. If either party has the right under this Agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
16.6. Where a Supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 16.3. applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
16.7. In this clause 16:
a) Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156-5 A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
b)capitalised terms that are not defined in this Agreement have the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).