General Terms and Conditions

These General Terms and Conditions (the “General Terms”) govern the relationship between Spectrum.Life and its customers in Australia and New Zealand on the standard (non-strategic) path. They are designed to be incorporated into a single Order Form. These General Terms do not constitute a Master Services Agreement and are not the governing document for strategic customers, who receive a separate Master Services Agreement and Statement of Work.

Where you are a reseller purchasing services on behalf of Corporate Customers, these General Terms do not apply. Please contact Spectrum.Life for the applicable Reseller Master Services Agreement.

1. Definitions and Interpretations

1.1 Definitions

In these General Terms and any Order Form, the following expressions have the following meanings:

“Agreement”
means a contract consisting of the Order Form and these General Terms and Conditions;

“Applicable Law”
means any and all applicable rules of law, statutes, regulations, orders and other instruments having the force of law in any jurisdiction in which the Services are provided, received or accessed, including Australian Privacy Laws and, where applicable, New Zealand Privacy Laws;

“Australian Privacy Laws”
means the Privacy Act 1988 (Cth), the Australian Privacy Principles, the Notifiable Data Breaches scheme in Part IIIC of the Privacy Act, and any other applicable Australian Commonwealth or state privacy legislation;

“Authorised Users”
means those employees, volunteers, consultants, contractors and End Users of the Customer who are authorised to access the Services;

“Business Day”
has the meaning given in the Jurisdiction-Specific Provisions;

“Change Order”
means a document setting out agreed changes to the Order Form, signed by authorised representatives of both parties;

“Consumer Price Index” or “CPI”
has the meaning given in the Jurisdiction-Specific Provisions;

“Customer”
means the customer named in the Order Form;

“Customer Data”
means information relating to the Customer’s business inputted by or on behalf of the Customer in the course of using the Services, excluding any data, results, content, copyright, database rights or other intellectual property of Spectrum.Life;

“Data Protection Legislation”
has the meaning given in the Jurisdiction Specific Provisions;

“Effective Date”
means the date this Agreement is signed by both parties; if such dates differ, the later of the two dates;

“End User”
means any individual to whom the Customer provides any services using the Spectrum.Life Platform, subject to the terms of this Agreement;

“End User Personal Data”
means Personal Information received by Spectrum.Life from or on behalf of the Customer in connection with any End User;

“Fees”
means the fees set out in the Order Form payable by the Customer for the supply of the Services by Spectrum.Life;

“GST”
has the meaning given in the Jurisdiction Specific Provisions.

“Good Industry Practice”
means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a company within the sector in which Spectrum.Life operates;

“Governing Law”
has the meaning given in the Jurisdiction Specific Provisions.

“Initial Term”
means the initial term for the provision of Services as set out in the Order Form;

“Insolvency Event”
has the meaning given in the Jurisdiction Specific Provisions;

“Intellectual Property Rights”
means patents, copyright, trade marks, service marks, business names, domain names, database rights, rights in designs, rights in computer software, and all other intellectual property rights, whether registered or unregistered;

“Late Payment Interest Amount”
has the meaning given in the Jurisdiction Specific Provisions.

“New Zealand Privacy Laws”
means the Privacy Act 2020 (NZ) and the New Zealand Information Privacy Principles;

“Order Form”
means a document bearing that title issued by Spectrum.Life to the Customer, under the terms of which Spectrum.Life shall commence its provision of Services;

“Personal Information”
has the meaning given in the Privacy Act 1988 (Cth) and includes Sensitive Information as defined in that Act;

“Renewal Term”
has the meaning ascribed in Clause 8.2;

“Security Incident”
means any actual or reasonably suspected breach of security leading to accidental or unlawful access to, destruction, misuse, loss, alteration or disclosure of End User Personal Data or Customer Data;

“Services”
means the digital platform services and associated clinical services to be provided by Spectrum.Life as described in the Order Form;

“Spectrum.Life Platform”
means the Spectrum.Life digital wellbeing and mental health platform, accessible via web and mobile application;

1.2 Interpretation

In these General Terms: use of the singular includes the plural and vice versa; references to “writing” or “written” include email; references to any statute include that statute as amended or replaced from time to time; phrases introduced by “including” are illustrative and do not limit the sense of the words preceding them; and the Schedules form part of this Agreement.

2. THE SERVICES

These General Terms set out the terms and conditions under which Spectrum.Life agrees to provide digital platform services and associated clinical services to the Customer via the internet and the Spectrum.Life Platform, as described in the Order Form.

Spectrum.Life will maintain one backup of End User Personal Data and Customer Data at Spectrum.Life’s designated cloud hosting centre and will use that backup to provide an orderly and timely recovery of data in the event of service interruption.

Spectrum.Life may modify its own systems, network, system configuration or routing configuration provided that such change has no adverse effect on the Customer or delivery of the Services.

3. Responsibilities

3.1 Spectrum.Life’s Responsibilities

Spectrum.Life shall:

• provide the Services in accordance with Applicable Law and Good Industry Practice;
• make the Services available for access via the internet through standard protocols (HTTPS); and
• ensure that personnel engaged to provide the Services are appropriately trained and qualified.

3.2 The Customer’s Responsibilities

• • pay the Fees in accordance with Clause 7 and the terms of the Order Form;
  • co-operate with Spectrum.Life in all matters relating to the Services;
  • ensure that Authorised Users treat any username, password or other access credentials as confidential;
  • not use the Services in any manner which is unlawful, harmful, threatening, defamatory, offensive, or which contravenes any laws or regulations;
  • take reasonable steps not to introduce any malware or vulnerability to Spectrum.Life’s systems; and
  • ensure that the Customer contact is available to liaise with and respond to queries from Spectrum.Life.

  4. Order Forms

  The Customer procures Services by agreeing an Order Form with Spectrum.Life. Each Order Form, once signed, forms part of this Agreement. Each Order Form will include: the Services to be provided; the commencement date and Initial Term; and the Fees.

  No amendment shall be made to a signed Order Form except by a signed Change Order in accordance with Clause 5. No variation of Services, Fees or other terms is effective by virtue of course of dealing, conduct, email correspondence or failure to object.

  5. Changes

  Either party may request changes to the Services. Once agreed, changes will be documented in a signed Change Order. No change is effective without a signed Change Order. Spectrum.Life may make changes to the Services necessary to comply with statutory requirements; where such changes affect scope or cost or otherwise have a material adverse effect on the Services the change procedure will be followed.

  6. Precedence

  In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:

  • any Special Terms in an Order Form;
  • these General Terms and Conditions, including the Schedules; and
  • any other terms within the Order Form.

  7. Fees and Payment

  Term of this Agreement

  The Customer shall pay the Fees set out in the relevant Order Form. Spectrum.Life shall invoice at the intervals specified in the Order Form. Payment is due within thirty (30) days of receipt of invoice, without deduction, set-off or counterclaim.

  Fees are fixed for the Initial Term. Following expiry of the Initial Term, Spectrum.Life reserves the right to increase the Fees on an annual basis by providing no less than thirty (30) days’ written notice, applying an annual CPI+2% increase on each anniversary of the commencement date. If Spectrum.Life notifies the Customer of an increase to the Fees, the Customer may elect to terminate the Agreement by giving at least seven (7) days’ written notice prior to the increase in Fees coming into effect.

  If payment is not received within thirty (30) days after the due date, Spectrum.Life may suspend the Customer’s access to all or part of the Services. Interest shall accrue on overdue amounts at the Late Payment Interest Amount.

  All Fees are exclusive of GST or any other applicable taxes or duties, which shall be added to invoices at the appropriate rate. All Fees are non-refundable unless otherwise expressly stated.

  8. Term and Termination

  8.1 Commencement

  This Agreement commences on the Effective Date and continues until terminated in accordance with this Clause 8.

  8.2 Renewal

  Each Order Form commences on the date set out in it and continues for the Initial Term. On expiry of the Initial Term, an Order Form automatically renews for successive one month periods (each a “Renewal Term”) unless either party gives at least fifteen (15) days’ written notice of non-renewal before the end of the Initial Term or any Renewal Term.

  8.3 Termination for Cause

  Either party may terminate this Agreement and any Order Form immediately by written notice if: the other party suffers an Insolvency Event; the other party is in material breach of this Agreement and (if remediable) fails to remedy that breach within thirty (30) days of written notice; or the other party repeatedly breaches this Agreement in a manner inconsistent with an intention to comply.

  8.4 Consequences of Termination

  On termination, the Customer shall pay all amounts due and payable. Spectrum.Life shall, on the Customer’s written instruction, provide a final export of Customer Data within thirty (30) days of receipt of such instruction. Provisions that by their nature survive termination shall do so, including Clauses 9 (Confidentiality), 10 (Data Protection), 11 (Intellectual Property), 14 (Intellectual Property Rights Claims) and 13 (Limitation of Liability).

  9. Confidentiality

  “Confidential Information” means all information or documentation of a party that is marked “confidential”, ought reasonably to be treated as confidential, or is disclosed in circumstances of confidence. It does not include information that was already in the possession of the receiving party without obligation, independently developed, or publicly available.

  Each party shall hold all Confidential Information in strict confidence and shall not disclose it to any third party except employees, agents or subcontractors who need to know it for the purposes of this Agreement, provided they are bound by equivalent confidentiality obligations. Upon termination, each party shall promptly return or render unusable all Confidential Information of the other party.

  10. Data Protection and Privacy

  10.1 Compliance

  Each party shall comply with its respective obligations under Data Protection Legislation in connection with this Agreement. This Clause 10 is in addition to, and does not limit, a party’s obligations under Data Protection Legislation.

  Each party is an independent data controller in respect of the Personal Information it collects, holds, uses, discloses or otherwise handles in connection with this Agreement.

  10.2 Customer obligations

  The Customer shall ensure that all privacy notices have been provided and, where required, consents obtained that are sufficient to enable Spectrum.Life to collect, handle, use and disclose End User Personal Data for the purposes of providing the Services. The Customer is responsible for any notifications to End Users required under Data Protection Legislation in connection with overseas disclosures.

  10.3 Spectrum.Life obligations

  Spectrum.Life shall: implement and maintain reasonable technical and organisational measures to protect End User Personal Data against misuse, interference and loss; notify the Customer as soon as reasonably practicable after becoming aware of any actual or suspected Security Incident; provide reasonable assistance to enable the Customer to comply with its obligations under Data Protection Legislation; and, upon termination, return or destroy End User Personal Data at the Customer’s written direction.

  10.4 Sub-processors

  Spectrum.Life may engage subcontractors to handle End User Personal Data for the purposes of providing the Services, provided they are bound by written obligations at least equivalent to those in this Clause 10. Spectrum.Life will notify the Customer of any proposed new subcontractor that will handle End User Personal Data. The Customer may object on reasonable grounds within seven (7) days.

  10.5 Cross-border transfers

  The Customer acknowledges that End User Personal Data may be transferred to, stored in or accessed from jurisdictions outside Australia or New Zealand where Spectrum.Life or its subcontractors operate, including the United Kingdom and Ireland. Such transfers will be made in accordance with Data Protection Legislation. Where clinical services are delivered by Spectrum.Life clinicians located in Ireland or the United Kingdom, End User Personal Data may be accessed by those clinicians.

  Without limiting Spectrum.Life’s other data processing activities, the Customer acknowledges that in circumstances that may require escalation to tier 3 technical support, Spectrum.Life engineers located in Ireland and the United Kingdom (or such other jurisdiction notified by Spectrum.Life) may access End User Personal Data and Customer Data hosted in Australia for the purposes of advanced troubleshooting and incident resolution. Such access would occur only where an issue cannot be resolved by Australia-based support personnel, is subject to the confidentiality and security obligations set out in this Agreement and conducted in accordance with Spectrum.Life’s ISO 27001 certified information security controls.

  11. Intellectual Property Rights

  Spectrum.Life and/or its licensors own all Intellectual Property Rights in the Spectrum.Life Platform, Programme Content and Services. This Agreement does not grant the Customer any Intellectual Property Rights in the Platform, Programme Content or Services.

  The Customer shall not copy, modify, decompile, reverse engineer, resell or otherwise exploit the Spectrum.Life Platform, Programme Content or Services, or use them to build a competing product.

  Spectrum.Life shall have a royalty-free, worldwide, perpetual licence to use any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or its Authorised Users in relation to the Services.

  12. Insurances

  During the term of this Agreement and for one year afterwards, Spectrum.Life shall maintain the insurance policies set out in Schedule 1 with reputable insurers. Spectrum.Life shall provide evidence of insurance to the Customer on request.

  Spectrum.Life shall maintain appropriate clinical indemnity insurance covering the provision of clinical services in the jurisdictions in which such services are delivered, including Australia and New Zealand.

  13. Limitation of Liability

  Nothing in this Agreement excludes liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation; the Customer’s payment obligations under this Agreement; the misuse or infringement by a party of the other party’s Intellectual Property Rights; or any other liability that arises at law and cannot be limited or excluded by contract.

  Subject to the above and to the extent permitted by law: neither party shall be liable for any loss of profits, loss of business, depletion of goodwill, loss or corruption of data, or any special, indirect or consequential loss, whether or not such losses are foreseeable and even if the party has been advised of their possible occurrence. To the extent permitted by law, Spectrum.Life’s total aggregate liability shall be limited to the total Fees paid for the Services in the twelve (12) months immediately preceding the event giving rise to the claim.

  These limitations apply to all claims arising in connection with this Agreement, including clinical services, data protection obligations and confidentiality, to the fullest extent permitted by Applicable Law.

  Where the Services are supplied to the Customer in Australia and the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (the “ACL”) applies, certain non-excludable consumer guarantees may apply. To the maximum extent permitted by section 64A of the ACL, Spectrum.Life’s liability for breach of any non-excludable consumer guarantee in respect of services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at Spectrum.Life’s option, to the supplying of the Services again or the payment of the cost of having the Services supplied again. Where the Services are supplied to the Customer in New Zealand and the Customer is acquiring the Services for the purposes of a business, the parties agree that the Consumer Guarantees Act 1993 (NZ) does not apply and is contracted out of to the maximum extent permitted by section 43 of that Act.

  14.Intellectual Property Rights Claims

  Spectrum.Life warrants that use of the Services in accordance with the terms of this Agreement by the Customer will not infringe the Intellectual Property Rights of any third party, and Spectrum.Life shall indemnify the Customer against any loss, damages, costs (including reasonable legal fees), expenses or claims arising from such infringement. The Customer warrants that its use of the Services and any content it uploads to the Spectrum.Life Platform will not infringe the Intellectual Property Rights of any third party, and the Customer shall indemnify Spectrum.Life against any loss, damages, costs (including reasonable legal fees), expenses or claims arising from such infringement.

  If use of the Services becomes, or in Spectrum.Life’s reasonable opinion is likely to become, the subject of any claim of infringement of a third party’s Intellectual Property Rights, Spectrum.Life may at its sole option and expense: (a) procure for the Customer the right to continue to use the Spectrum.Life Platform; (b) modify the Spectrum.Life Platform so that it ceases to be infringing; (c) replace the Spectrum.Life Platform with a non-infringing equivalent of substantially equivalent functionality; or (d) terminate this Agreement and any relevant Order Form immediately by notice in writing to the Customer and refund any Fees prepaid by the Customer as at the date of termination (less a sum, calculated pro rata, in respect of the Customer’s use of the Services to the date of termination).

  Spectrum.Life shall not be liable under this Clause 14 where the alleged infringement is based on: (a) modification of the Services by anyone other than Spectrum.Life; (b) use of the Services contrary to instructions or otherwise not in accordance with this Agreement; (c) use of the Services in combination with hardware or software not supplied or specified by Spectrum.Life; or (d) continued use of the Services after notice of alleged infringement.

  The foregoing states the Customer’s sole and exclusive rights and remedies, and Spectrum.Life’s entire obligations and liability, for infringement of any Intellectual Property Rights.

  15. General

  15.1 Governing Law and Jurisdiction

  This Agreement is governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales.

  15.2 Dispute Resolution

  In the event of any dispute, the parties shall use reasonable endeavours to resolve it through good faith negotiation between their respective representatives. If unresolved within twenty-one (21) days of written notice, either party may refer the dispute to the courts of New South Wales.

  15.3 Force Majeure

  Neither party shall be liable for delays or failure to perform its obligations due to causes beyond its reasonable control, including acts of God, pandemic, war, terrorism, industrial action, or failure of utility services. The delayed party shall notify the other promptly and use best endeavours to minimise delay. If delay exceeds ninety (90) days, either party may terminate this Agreement on thirty (30) days’ written notice.

  15.4 No Waiver

  Failure to exercise any right under this Agreement at any time does not constitute a waiver of that right.

  15.5 Notices

  All notices shall be in writing and sent to the address in the Order Form, or by email to the address notified by each party. Notices by email are deemed received at the time of transmission during business hours, or at the start of the next Business Day otherwise.

  15.6 Assignment

  Neither party shall assign this Agreement without the prior written consent of the other party, except to an entity within its group of companies.

  15.7 Entire Agreement

  This Agreement, including its Schedules and any Order Forms, constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous representations, understandings or agreements.

  15.8 Electronic Signature

  This Agreement and any Order Form may be executed by electronic signature. Signed counterparts together constitute one Agreement.

  15.9 Advertising and Publicity

  Spectrum.Life may list the Customer as a customer on its website, in press releases and in other marketing material. The Customer may be asked to act as a customer reference.

  Jurisdiction-Specific Provisions

  The applicable provisions in these General Terms set out below vary depending on whether the Customer is an Australian or New Zealand entity.

  Australian customers (Spectrum.Life entity: Care Connected Pty Limited T/A Spectrum.Life, ABN 87 616 646 309): the Australian provisions below apply.

  New Zealand customers (Spectrum.Life entity: Care Connected Pty Limited T/A Spectrum.Life, ABN 87 616 646 309): the New Zealand provisions below apply.

  Defined Term	Australia	New Zealand
  Governing Law	Laws of New South Wales, Australia. Courts of New South Wales.	Laws of New South Wales apply.
  Data Protection Legislation	Privacy Act 1988 (Cth), Australian Privacy Principles, Notifiable Data Breaches scheme and any other applicable privacy legislation.	As for Australia, plus the New Zealand Privacy Act 2020 and the NZ Information Privacy Principles.
  CPI	Consumer Prices Index published by the Australian Bureau of Statistics.	Consumer Prices Index published by Statistics New Zealand (Stats NZ), where Services are delivered primarily in New Zealand.
  Late payment interest	2% per annum above the Reserve Bank of Australia cash rate.
  Business Day	A day on which banks are open for business in the relevant Australian state or territory, excluding public holidays.	A day on which banks are open for business in Auckland, New Zealand, excluding New Zealand public holidays.
  GST	Fees are exclusive of GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).	Fees are exclusive of New Zealand GST as defined in the Goods and Services Tax Act 1985 (NZ).
  Insolvency Event	means, in respect of a party, the occurrence of any of the following events other than an event to which the stay on enforcing certain rights under Part 5.3A or section 415D or 434J of the Corporations Act 2001 (Cth) applies: (a)a receiver, receiver and manager, liquidator or provisional liquidator is appointed to that party or any of its assets; (b)an order is made, or a resolution is passed, for the winding up or liquidation of that party, other than for the purpose of a solvent reconstruction or amalgamation; (c)that party becomes insolvent (within the meaning of section 95A of the Corporations Act 2001 (Cth)); (d)that party enters into, or resolves to enter into, any arrangement, compromise or composition with its creditors outside of a voluntary administration, scheme of arrangement or other process subject to an ipso facto stay; or (e)any analogous event occurs under the law of any applicable jurisdiction.	means the Customer becoming insolvent or unable to pay its debts as they fall due; passing a resolution for winding up or liquidation; having a receiver, administrator or liquidator appointed; or entering any composition or arrangement with creditors, or anything analogous in any applicable jurisdiction.