1. Definitions
Capitalised terms used in these Ts&Cs and not defined in A. Agreement Details or B. Clinical Risk Protocol are defined in clause 12 of these Ts&Cs.
2. Term
2.1 This Agreement will commence on the Start Date and will, subject to clause 2.2, end on the End Date (Term).
2.2 If Orygen Digital is able to secure additional funding to support the provision of the Services to Agency beyond the End Date, Orygen Digital will notify the Agency in writing of the revised End Date, and the Term will extend to cover the additional period.
3. Services
3.1 Orygen Digital’s responsibilities
Orygen Digital will use commercially reasonable efforts to:
(a) make MOST and its Content available to the Agency, clinicians at the Eligible Clinical Service(s) and Eligible Young People;
(b) provide training and resource material (Documentation) to the Agency on how to use MOST to enhance clinical care, for distribution to the Eligible Clinical Service(s); and
(c) liaise directly with the Eligible Clinical Service(s), and provide support that facilitates the implementation of MOST within those Eligible Clinical Services,
(together, the Services);
(d) provide the Agency with:
(i) information regarding which Eligible Young People referred by the Eligible Clinical Service(s) have signed up to MOST (provided that Orygen Digital has obtained the appropriate informed consent from the Eligible Young Person, or their parent or guardian); and
(ii) aggregated data regarding MOST engagement and effectiveness in respect of Eligible Young People and clinicians from the Eligible Clinical Service(s); and
(e) have in place appropriate technical and organisational security of data measures to ensure that data on MOST is protected from misuse, interference and loss and from unauthorised or unlawful access, modification or disclosure and have in place appropriate backup and disaster recovery procedures consistent with standard industry practices.
3.2 The Agency’s responsibilities
The Agency will:
(a) work collaboratively with Orygen Digital to implement MOST within the Eligible Clinical Service(s) (including by adjusting processes and procedures to incorporate MOST);
(b) distribute the Documentation to the Eligible Clinical Service(s);
(c) encourage clinicians and, where relevant, administrative and operational staff at the Eligible Clinical Service(s) to attend training on MOST;
(d) ensure that clinicians at the Eligible Clinical Service(s) offer MOST to Eligible Young People (except in circumstances where it is not considered clinically appropriate); and
(e) be responsible for ensuring that those young people that are offered MOST meet the Eligibility Criteria.
3.3 Regular review and improvement
(a) The Parties agree to undertake regular reviews of the provision and receipt of the Services, to take place no less than four (4) times per year during the Term (or such other frequency as may be agreed by the parties) regarding the implementation of MOST in the Eligible Clinical Service(s), and for each Party to provide the other with feedback on the provision and receipt of the Services.
(b) Orygen Digital will take reasonable steps to continuously improve the safety, quality, performance and effectiveness of MOST, including by:
(i) regularly seeking feedback about MOST from the management and clinicians at the Eligible Clinical Service(s), so that MOST can continue to be developed and improved;
(ii) implementing a complaints and incident management system for users of MOST (including clinicians); and
(iii) conducting ongoing research and evaluation for the purposes of service improvement of MOST for young people and clinicians;
(c) In order to assist Orygen Digital in the continuous improvement described in clause 3.3(b), Agency will:
(i) encourage clinical and nonclinical staff of the Eligible Clinical Service(s) to provide Orygen Digital with feedback on the implementation of MOST; and
(ii) provide Orygen Digital with details of any complaints or incidents relating to MOST that arise through the Agency’s complaints and incidents management system.
4. Clinical governance
The Parties agree to act in accordance with the clinical governance structure articulated in the Clinical Risk Protocol.
5. Intellectual Property
(a) All rights (including all intellectual property rights) now existing or in future arising in MOST, the Contents and the Documentation, are owned or controlled by Orygen Digital.
(b) Agency acknowledges and agrees that it does not obtain any rights in MOST, the Contents or the Documentation other than the user rights granted in this agreement.
(c) Agency must not:
(i) copy, reproduce, store, transmit, publish, modify, create a derivative work from, reverse engineer, disassemble, decompile, or otherwise create derivate works from any part of MOST, the Contents or the Documentation;
(ii) cause any of MOST to be framed or embedded in another website;
(iii) commercialise any content, products or services in MOST, the Contents or the Documentation; or
(iv) distribute any portion of MOST, the Contents or the Documentation to any third party or make MOST, the Contents or the Documentation available to any third party other than to allow access to MOST for use by Eligible Young People and clinicians at the Eligible Clinical Service(s).
(d) Orygen Digital reserve the right to update and change MOST, the Contents and the Documentation from time to time.
(e) If Agency or any clinicians at the Eligible Clinical Service(s) sends or transmits by any means any communications or materials to Orygen Digital suggesting or recommending changes to MOST, the Contents or the Documentation, including new features or functionality relating thereto, or any other comments or feedback (Feedback), Orygen Digital is free to use such Feedback, without any attribution or compensation to any party.
6. Confidential Information
(a) Each party undertakes that it will keep confidential and not disclose to any person (other than to those of its personnel who have a need to know the Confidential Information for the purposes of this Agreement), any Confidential Information disclosed to or obtained by it in connection with this Agreement and, with respect to personal information and/or confidential client (consumer) information, will comply with the requirements of clause 7 below.
(b) Each party must take all reasonable security precautions in relation to the Confidential Information under its control.
7. Privacy
7.1 Privacy generally
Each party will comply with all obligations it has under the Privacy Act 1988 (Cth), the Privacy and Data Protection Act 2014 (Vic) or the Health Records Act 2001 (Vic) in relation to the protection of personal information and health information as defined in those Acts or with any obligations under any other privacy laws with which that party is required to comply in dealing with information (Privacy Laws) and nothing in this Agreement detracts from any such obligations.
7.2 Access to personal information/confidential client (consumer) information
(a) Without limiting the generality of clause 7.1, the Agency warrants that it will obtain, or ensure that clinicians at the Eligible Clinical Services managed by it obtain, any required consent to enable it or those clinicians to access, use and provide to Orygen Digital any personal information as required under this Agreement, including under the Clinical Risk Protocol.
(b) Without limiting the generality of clause 7.1, Orygen Digital warrants that it will obtain any required consent to enable it to access, use and provide to the Agency or any third parties any personal information as required under this Agreement, including under the Clinical Risk Protocol. Orygen Digital will obtain consent from an Eligible Young Person in order to access, use and provide to the Agency or any third parties any of their personal information as required under this Agreement, when the Eligible Young Person agrees to the terms of use when they first access MOST.
7.3 Use of non-personal information
As permitted by applicable laws, Orygen Digital may extract, use and disclose non-personal information from MOST for its own purposes, including but not limited to:
(a) maintenance of MOST including monitoring for safety, security and quality purposes;
(b) improvement of MOST or the Services;
(c) development of new products and services; or
(d) collection and compilation of non-personal information, including Anonymised Statistics, and aggregation with other data or creation of derived data sets thereof, provided that, when non-personal information is used for external purposes, in no event shall the identity of Agency or Eligible Clinical Service(s) be identifiable.
7.4 Notice of privacy breach
Each party will notify the other as soon as practicable after it becomes aware of an alleged or actual breach of an obligation under the Privacy Laws in connection with this Agreement in respect of that party’s data or information and will, in relation to such alleged or actual breach:
(a) provide the other party with all relevant documentation;
(b) do all such things as may be reasonable to resolve such allegation or breach; and
(c) keep the other party updated and informed about any developments.
8. Insurance, Liability and Indemnity
8.1 Required insurance
(a) Each party must take out, maintain and keep current during the Term and for ten years after its expiration or earlier termination, insurances to cover its potential liabilities arising out of this Agreement, including:
(i) public and product liability insurance;
(ii) cyber insurance; and
(iii) professional indemnity insurance.
(b) Each party will produce evidence of the currency of the insurance policies within fourteen (14 days) of receipt of a written request from the other party.
8.2 Disclaimer and limitation of liability
(a) The Agency acknowledges and agrees that:
(i) it and its Eligible Clinical Service(s) use MOST, the Contents and the Documentation at their own risk;
(ii) MOST, the Contents and the Documentation do not constitute, and are not intended to constitute, clinical, medical, psychological, therapeutic, or any other form of professional advice, diagnosis, or treatment; and
(iii) MOST, the Contents and the Documentation should not be relied upon as a substitute for professional advice or used for the purpose of making medical or mental health decisions.
(b) To the maximum extent permitted by law, Origen Digital disclaims all liability for any losses, damages, costs or expenses arising out of or in connection with:
(i) any reliance by the Agency or its Eligible Clinical Service(s) on MOST, the Contents or the Documentation; or
(ii) any interactions, communications, advice, or services provided by the Agency or its Eligible Clinical Service(s) on MOST, or other third parties accessible through MOST.
(c) Notwithstanding any other provision in this Agreement, no party will be liable to any other party in connection with this Agreement in contract, tort (including negligence), under statute, under any indemnity, under any action, claim or liability, or under any other basis in law or equity for any loss of an indirect or consequential nature, whether or not such loss, or the possibility of such loss, was foreseeable, could have been contemplated by, or was notified to, the other party.
(d) Nothing in this Agreement excludes or limits liability to the extent that such exclusion or limitation is prohibited by applicable law.
8.3 Release and Indemnity
The Agency releases Orygen Digital from and indemnifies Orygen Digital against all losses, damages, costs and expenses (including legal costs on a solicitor and own client basis) that Orygen Digital may sustain or incur as a result of any claim, demand, action or proceeding by any third party arising out of:
(a) the negligent act or omission or misconduct of the Agency or any Eligible Clinical Service(s);
(b) use of MOST, the Contents or the Documentation by the Agency or any Eligible Clinical Service(s);
(c) any clinical decisions, advice, diagnosis or treatment made by the Agency or any Eligible Clinical Service(s); or
(d) the breach of this Agreement by the Agency.
This release does not apply to the extent that the indemnified liability is caused by the negligence of Orygen Digital or a material breach by Orygen Digital of the terms of this Agreement.
9. Termination
9.1 Termination by Orygen Digital
Orygen Digital may terminate this Agreement at any time by written notice to the Agency if Orygen Digital’s funding to provide the Services is terminated or reduced for any reason. Orygen Digital will provide as much notice as possible, relative to the notice provided to Orygen Digital by its funders.
9.2 Termination by the Agency
The Agency may terminate this Agreement on giving 60 days’ written notice to Orygen Digital.
9.3 Termination by either party
Either party may immediately terminate this Agreement by written notice to the other party if that other party:
(a) commits a breach of this Agreement which is capable of remedy and is not remedied within 30 days of notice to do so by the first party;
(b) commits a breach of a material term of this Agreement; or
(c) disposes of the whole or a substantial part of its operations or business, other than in the ordinary course of its business.
9.4 Actions following termination or expiry
Upon termination or expiry of this Agreement, Orygen Digital will ensure that all young people referred by an Eligible Clinical Service and accessing MOST at that time will be discharged from care under MOST in a way that accords with Orygen Digital’s duty of care towards those young people, in consultation with the Agency, and in accordance with the Clinical Risk Protocol.
10. Dispute Resolution
10.1 A Party must not commence legal proceedings against another Party in respect of a dispute or difference (Dispute), unless that Party wishing to commence proceedings has first complied with the following:
(a) if either Party claims that any Dispute arises in connection with this Agreement, that Party must serve written notice of the Dispute to the other Party;
(b) the Parties agree to each promptly appoint a senior representative, each with authority to bind the Party they represent, to use best endeavours to resolve the Dispute; and
(c) if the Dispute has not been resolved within 30 days of first notification of the Dispute, or such further period as the Parties agree, either Party may commence proceedings in any court of competent jurisdiction in relation to that Dispute.
10.2 Nothing in this clause 10 prevents either party from seeking urgent injunctive or similar interim relief from a Court or from immediately terminating this Agreement where this Agreement provides such a right.
11. General
11.1 Governing Law.
This Agreement is governed by the laws of the State of Victoria, Australia. The parties submit to the jurisdiction of the courts of the State of Victoria and any courts which may hear appeals from those courts.
11.2 Amendment.
This Agreement may only be amended in writing signed by the parties.
11.3 Assignment.
A party must not assign, subcontract, novate or otherwise deal with any of its rights or obligations without the prior written consent of the other party.
11.4 Force Majeure
If Orygen Digital is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, epidemics, pandemics, governmental action, unavailability of stocks or materials, or other events beyond its reasonable control, then Orygen Digital is relieved from performance of such obligations to the extent, and for the duration, that such performance is prevented by such events. Either party may terminate this Agreement if an event of force majeure continues for a period of six (6) months.
11.5 Relationship of the parties.
The parties are independent contracting parties. Nothing in this Agreement will make any party the agent, partner or legal representative of the other party.
11.6 Survival of clauses
Clauses 4, 5, 6, 7, 8, 9.4, 10, 11.1, 11.6 and 12 survive the expiration or termination of this Agreement along with any other provision which by its nature survives termination or expiration of this Agreement.
11.7 Severance.
If any provision is invalid or unenforceable, such provision will be deleted but only to the extent necessary and the remaining provisions will remain in full force and effect.
12. Definitions and interpretation
12.1 Defined terms
Anonymised Statistics data and information related to Agency’s and Eligible Clinical Service(s)’ use of MOST and the Services that is used by Orygen Digital in an anonymised manner and that may be aggregated by Orygen Digital, including to compile statistical and performance information related to the provision and operation of MOST and the Services.
Confidential Information means all information and materials of a confidential nature, in any form, which come into a party's possession about or related to the other party, or as a result of, or in performance of this Agreement and which in the case of Orygen Digital includes MOST, the Content and the Documentation, but excluding information which:
(a) at the time of its first disclosure or observation under this Agreement was in the public domain;
(b) after disclosure or observation under this Agreement, comes into the public domain otherwise than by disclosure in breach of this Agreement;
(c) is received by either party from a third party who has the right to provide the information;
(d) was already in the receiving party's possession or knowledge without restriction prior to its disclosure or observation; or
(e) the disclosing party is required by law to disclose.
Eligible Young Person means a young person who meets the Eligibility Criteria.
Eligibility Criteria means:
(a) the young person is aged 12 to 25 years (inclusive);
(b) the young person has engaged with the Eligible Clinical Service seeking mental health support (and whether or not they stay with the Eligible Clinical Service for an episode of care);
(c) at the time of referral by the Eligible Clinical Service, the young person does not present with an acute risk of suicide or other life-threatening risk; and
(d) the required consent has been obtained by the Eligible Clinical Service to enable it to access, use and provide to Orygen Digital any personal information as required under this Agreement.
12.2 Interpretation
In this Agreement, unless the context requires otherwise:
(a) if a word or phrase is defined, its other grammatical forms have the corresponding meaning;
(b) “writing” includes electronic transmission and any means of reproducing words in a tangible and permanently visible form;
(c) a legislation, statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements;
(d) any word of limitation such as ‘including’, and any other similar expression, is to be read with the words ‘but not limited to’ immediately after; and
(e) no rule of construction will apply to a clause to the disadvantage of a party merely because that party proposed the clause or would otherwise benefit from it.