1 Scope of this Agreement

• 1.1 Bupa Services

  Bupa Wellness agrees to provide, and the Customer agrees to receive, the Bupa Services in accordance with the terms of this Agreement.

• 1.2 Personnel
  • Bupa Wellness will use suitably qualified and experienced personnel to provide the Bupa Services.
  • Bupa Wellness will use its reasonable discretion to determine:
    • the number of personnel required to provide the Bupa Services; and
    • the qualifications and experience that such personnel must possess to provide the Bupa Services.
• 1.3 Customer Inputs
  • The Customer will provide Bupa Wellness with the Customer Inputs as and when reasonably required by Bupa Wellness.
  • The Customer warrants that:
    • the Facility is suitable and adequate for the provision of the Bupa Services by Bupa Wellness in accordance with this Agreement, and is maintained in accordance with all relevant state and territory Work Health and Safety and COVIDSafe requirements;
    • any equipment owned or leased by the Customer which is placed in the Facility is appropriately insured in accordance with clause 9 of this Agreement;
    • the Customer has the right to provide Bupa Wellness with access to the Facility;
    • if any Bupa Service is intended to be delivered virtually, online or in a digital format, the Customer will procure all equipment and software reasonably required for the delivery of the Bupa Service (as determined by Bupa Wellness from time to time) prior to the delivery of the Bupa Service; and
    • if any Bupa Service is intended to be provided onsite at the Facility, the Customer will either provide Bupa Wellness with internet access at the Facility for the duration of the Bupa Service, or notify Bupa Wellness that it will not have access to the internet at the Facility by no later than 14 days before the delivery of the Bupa Service.
  • The Customer acknowledges that:
    • Bupa Wellness will not be in breach of this Agreement for failure to supply the Bupa Services should the Customer breach the warranty in or fail to comply with this clause 1.3; and
    • if the Customer breaches the warranty set out in clause 1.3(b)(v) in relation to a Bupa Service, the Bupa Service will be deemed to have been cancelled by the Customer with less than 2 Business Days’ notice, and Bupa Wellness may charge a cancellation fee for the Bupa Service in accordance with this Agreement.
• 1.4 Term
  • This Agreement commences on the Commencement Date (or such other date agreed between the parties in writing) and, subject to clause 10, ends at the end of the Term.
  • The Bupa Quote is valid for 12 months from the date the Bupa Quote is accepted, and pricing is valid at the time of acceptance and, subject to the terms of this Agreement, for the 12-month period. Any additional deliverables or services quoted that are not set out in the Bupa Quote on the date of acceptance, or services or deliverables to be delivered beyond the initial 12-month period, will be subject to:
    • a new Bupa quote; and
    • current pricing for such services or deliverables as determined by Bupa Wellness at the time.

2 Fees, GST, invoicing and payment

• 2.1 Fees
  • Subject to clause 2.1(c), the Customer will pay Bupa Wellness the Fees for the Bupa Services in accordance with the Bupa Quote and Schedule 1.
  • If the parties agree to extend the Bupa Quote beyond the initial 12-month period (or any subsequent 12-month period), the parties agree to an adjustment of the Fees for the Bupa Services, commencing from the start date of the new 12-month period. The adjustment will be the greater of:
    • the percentage change equivalent to the relative variation in the Australian All Groups Consumer Price Index for Eight Capital Cities issued by the Australian Statistician in the quarter immediately preceding the end of the relevant 12-month period; and
    • the change required to align the pricing for the Bupa Services as set out in the Bupa Quote to the then-current pricing for the same or equivalent Bupa Services.
  • If the Bupa Quote is funded from Workplace Wellness Funding Credits, no payment for the Fees is required unless there are insufficient Workplace Wellness Funding Credits to fund the Bupa Services, in which case the Customer is liable to pay the balance of the Fees in accordance with the terms of this Agreement.
• 2.2 GST
  • The consideration specified in this Agreement does not include any amount for GST. If a supply under this Agreement is subject to GST, the recipient must pay to the supplier an additional amount equal to the fees payable multiplied by the applicable GST rate. The additional amount is payable at the same time as the consideration for the supply is payable or is to be provided. However, the additional amount need not be paid until the supplier gives the recipient a Tax Invoice.
  • If the additional amount differs from the amount of GST payable by the supplier, the parties must adjust the additional amount.
• 2.3 Reimbursement

  If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified does not include any amount for GST for which the party is entitled to an input tax credit.

• 2.4 Invoices
  • Subject to clauses 2.4(b) and 3.5, Bupa Wellness will invoice the Customer monthly for all Bupa Services performed under this Agreement.
  • If any Bupa Services are intended to be delivered within one month, Bupa Wellness will invoice the Customer upon the completion of those Bupa Services.
  • Where the Customer pays Bupa Wellness’s invoice after the due date specified on the invoice, the Customer will incur a late payment fee (one fee per overdue invoice) equal to the lesser of 5% of the invoice value or AUD$1,000 to cover administration, cashflow management and processing costs.
• 2.5 Payment

  The Customer must pay all invoices for Fees within 30 days after it receives the invoices.

• 2.6 Costs where Services cancelled or modified

  Subject to clause 3.5, if the Customer cancels or modifies a Bupa Service, the Customer will be liable to Bupa Wellness for any costs incurred by Bupa Wellness in accordance with the terms set out in Schedule 1.

3 Service, Delivery and Timing

• 3.1 Quality of Services

  All Bupa Services will be provided with due care and skill, and will conform to the requirements of this Agreement.

• 3.2 Delivery
  • Subject to clauses 3.2(b) and 3.2(c), Bupa Wellness will perform the Bupa Services in accordance with the Timetable.
  • The Customer must have the Facility prepared for the delivery of the Bupa Services in accordance with the Timetable. For the avoidance of doubt, this includes ensuring that the Facility is maintained according to all relevant state and territory Work Health and Safety and COVIDSafe requirements.
  • If any Bupa Service is intended to be delivered virtually, online or in a digital format, the Customer must ensure that it has procured all equipment and software reasonably required for the delivery of the Bupa Service (as determined by Bupa Wellness from time to time) prior to the delivery of the Bupa Service.
  • Bupa Wellness may subcontract the performance of any or all of its obligations under this Agreement and remains responsible for the performance of any of its obligations delivered by its subcontractors.
  • Unless otherwise agreed between the parties, the Customer agrees that it must receive all Bupa Services set out under the Bupa Quote within 12 months of the date of the Bupa Quote.
  • The Customer agrees that minimum hours and quantities, per location and date, apply for certain Bupa Services as follows:
    • One-on-one consultations (excluding onsite flu vaccinations): a minimum of four hours service delivery time; and
    • Onsite and virtual seminars, demonstrations, workshops and group exercise sessions: a minimum of one hour service delivery time unless otherwise agreed in writing by the parties.
• 3.3 Public Holidays and Hours of Operation
  • The Customer agrees and acknowledges that if a Bupa Service is scheduled to be provided on a public holiday, the Bupa Services will be provided in accordance with the hours of operation, and for the Fees, as stated in the Bupa Quote or as otherwise agreed by the parties in writing.
  • Unless otherwise stated in the Bupa Quote or agreed by the parties in writing, the parties agree that the Bupa Services will be provided during the Operating Hours and that the Fees have been negotiated to address this.
• 3.4 Flu Vaccination Voucher services

  If any Bupa Services provided by Bupa Wellness under this Agreement include flu vaccination voucher services, these Bupa Services will also be provided in accordance with the terms and conditions set out in Schedule 2.

• 3.5 Flu Vaccination Reimbursement services

  If any Bupa Services provided by Bupa Wellness under this Agreement include flu vaccination reimbursement services, these Bupa Services will also be provided in accordance with the terms and conditions set out in Schedule 3.

• 3.6 Motivational speaker service

  If any Bupa Services provided by Bupa Wellness under this Agreement include motivational speaker service, these Bupa Services will also be provided in accordance with the terms and conditions set out in Schedule 4.

4 Confidential Information

• 4.1 Confidential Information

  Confidential information is:

  • any information about a party’s business that is disclosed to or learnt by the other party in connection with this Agreement; and
  • any information that is developed by Bupa Wellness in the course of performing the Bupa Services.
• 4.2 Exclusions

  Confidential information does not include:

  • information that is in or enters the public domain other than as a result of a breach of confidence; or
  • information known by a party independent of the performance of the Bupa Services, including information acquired from a third party entitled to disclose it.
• 4.3 Permitted use

  A party may only use the other party’s confidential information as required for the proper performance of this Agreement.

• 4.4 Disclosure of information
  • A party may only disclose the other party’s confidential information:
  • to its employees who need the information for the proper performance of this Agreement;
  • as required by law or by a stock exchange;
  • to a legal, financial or other adviser including an auditor of a party to this Agreement; and
  • to any subcontractors engaged to perform the Bupa Services or deliver the Deliverables.
  • Any disclosure in accordance with clause 4.4(a) must be made on an expressly confidential basis.
• 4.5 Protection of information

  Each party must ensure that its handling and storage of the other party’s confidential information (including storage on information systems) is effective to restrict access to persons who need the information for the proper performance of this Agreement.

• 4.6 Disclosure to Related Bodies Corporate

  Bupa Wellness may disclose any confidential information related to, or for the purposes of, this Agreement to any Related Body Corporate of Bupa Wellness and its subcontractors.

5 No Solicitation

• During the Term and for a period of 12 months from the date of expiry or termination of this Agreement, the Customer must not approach or solicit, and must procure that none of its Related Bodies Corporate approach or solicit, any employee, agent, supplier or subcontractor of Bupa Wellness for the purpose of recruiting that person or engaging that entity (as applicable).

6 Intellectual Property Rights

• 6.1 Intellectual Property Rights in the Deliverables
  • Any Intellectual Property Rights created in the development or provision of the Bupa Services (including the Deliverables) will be owned by Bupa Wellness or its subcontractor (as applicable). This clause assigns all such Intellectual Property Rights to Bupa Wellness or its subcontractor (as applicable).
  • The Customer’s membership database (Customer Database) is owned by the Customer and nothing in this Agreement affects the ownership of existing Intellectual Property Rights in the Customer Database by the Customer.
• 6.2 Existing Intellectual Property Rights unaffected
  • Nothing in this Agreement affects the ownership of existing Intellectual Property Rights owned by Bupa Wellness or any third party which are used in the supply of the Bupa Services.
  • The Customer may not use, modify or deal with the Intellectual Property Rights of Bupa Wellness or any of its agents, suppliers or subcontractors, without Bupa Wellness’s prior written consent.
• 6.3 Materials provided by Bupa Wellness to Customer
  • Any Material provided to the Customer by Bupa Wellness will be provided to the Customer solely for the purposes of use by the Customer, its employees and/or agents.
  • The Customer may not provide or make available any such Material or copies of any such Material to any third party, except where prior written approval has been provided by Bupa Wellness.
• 6.4 Licence to Bupa Wellness
  • Upon written request from Bupa Wellness, the Customer may grant approval to Bupa Wellness for the Term to use the Customer Trade Marks in connection with the Bupa Services, subject to such terms and conditions as the Customer may impose.
  • The Customer warrants that the Customer Trade Marks do not infringe the trade marks, trade names or other rights of any person.
• 6.5 Use of Customer Trade Marks

  Bupa Wellness must use the Customer Trade Marks in accordance with the terms and conditions advised by the Customer in writing.

• 6.6 Validity

  Bupa Wellness must not:

  • challenge the ownership or validity of the Customer Trade Marks; or
  • attempt to obtain any registration in relation to its rights under this Agreement to use the Customer Trade Marks.

7 Liability

• 7.1 No limitation

  Neither party excludes or limits its liability under or in connection with this Agreement in relation to:

  • liability arising from breach of clause 4 (Confidential Information), clause 6.2 (Existing Intellectual Property Rights unaffected), clause 8.2 (Indemnity) or clause 9 (Insurance); or
  • fraud or unlawful conduct by the party, its employees, agents or subcontractors.
• 7.2 Limit of liability

  Subject to clause 7.1 and clause 7.3, the total liability of a party under or in connection with this Agreement (whether in contract, tort including negligence or otherwise) is limited to five times the total amount payable under this Agreement.

• 7.3 Excluded liability

  Except in relation to liability under clause 7.1, neither party will be liable (whether in contract, tort including negligence or otherwise) for:

  • loss of profits, business, revenue, goodwill, opportunity or anticipated savings; or
  • any other form of indirect or consequential loss or damage.

8 Compliance with laws and policies

• 8.1 Compliance with laws

  Each party:

  • will comply with all applicable laws when performing its obligations under this Agreement; and
  • must ensure it has all licences, permits and other authorities necessary for it to perform its obligations under this Agreement.
• 8.2 Indemnity

  The Customer will indemnify Bupa Wellness and its Related Bodies Corporate against any loss, liability, cost or expense (including legal costs) suffered or incurred by Bupa Wellness in connection with:

  • a breach by the Customer of Bupa Wellness’s safety, security and site procedures as provided to the Customer from time to time;
  • the Customer providing access to the Facility to persons outside of the operating hours set out in the Bupa Quote without Bupa Wellness’s written permission;
  • a breach by the Customer of clause 6.2; and
  • any breach by the Customer of the warranties given in clause 1.3(b).

9 Insurance

• 9.1 Mandatory insurance to be held by Bupa Wellness

  Bupa Wellness must maintain:

  • professional indemnity insurance for at least $5 million per occurrence; and
  • public liability insurance for at least $10 million per occurrence.
• 9.2 Mandatory insurance to be held by the Customer

  The Customer must maintain:

  • public liability insurance for at least $5 million per occurrence; and
  • workers compensation insurance as per the relevant State and Territory legislation.
• 9.3 Evidence of insurance

  Each party must provide evidence of the required insurances in the form of a certificate of currency on request by the other party.

10 Termination

• 10.1 Termination for insolvency

  Either party may terminate this Agreement by notice in writing to the other party if the other party becomes Insolvent.

• 10.2 Termination for cause

  Either party may terminate this Agreement by notice in writing to the other if a party commits a material breach of this Agreement and:

  • the breach is not capable of being cured; or
  • the breach is capable of being cured but the party fails to cure the breach within 30 days of receiving a notice of breach.
• 10.3 Consequences of termination

  On expiration or termination of this Agreement:

  • the Customer must pay Bupa Wellness any outstanding fees on receipt of a valid invoice; and
  • the Customer must provide Bupa Wellness access to the Facility and permit Bupa Wellness to remove all property and equipment owned or supplied by Bupa Wellness.
• 10.4 Survival of clauses

  Clause 4 (Confidential Information), clause 7 (Liability), clause 10.4 (Survival), clause 13 (General) and any other clauses that are, by their nature, intended to survive termination or expiry of this Agreement shall survive the termination or expiry of this Agreement.

11 Force Majeure

• 11.1 Force Majeure Events

  If a party is unable to perform or is delayed in performing an obligation under this Agreement (other than an obligation to pay money) because of an event beyond that party’s reasonable control (Force Majeure Event), that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event.

• 11.2 Consequences of Force Majeure Events

  If a Force Majeure Event occurs, the non-performing party must:

  • promptly give the other party notice of the event and an estimate of the non-performance and delay;
  • take all reasonable steps to overcome the effects of the event (but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and
  • resume performance of the relevant obligations as soon as practicable after the event no longer affects either party.

12 Notices

• 12.1 Form of notices

  Any notice, approval, consent or other communication in relation to this Agreement must:

  • be in writing;
  • be marked for the attention of:
    • in the case of a notice to Bupa Wellness, the Bupa Wellness’s Representative; and
    • in the case of a notice to the Customer, the Customer’s Representative; and
  • be left the address set out in the Contract Details, be sent by prepaid ordinary post or by email to the Bupa Wellness Representative or the Customer Representative (as applicable).
• 12.2 Effect of notice

  A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.

• 12.3 Notices sent by post in Australia

  If posted in Australia, a letter is taken to be received on the third day after posting.

• 12.4 Notices sent by post overseas

  If posted overseas, a letter is taken to be received on the seventh day after posting.

• 12.5 Email

  An email is taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.

13 General

• 13.1 Governing law

  This Agreement is governed by the law in force in the State of Victoria. Each party submits to the non-exclusive jurisdiction of the court of the State of Victoria and courts entitled to hear appeals from those courts.

• 13.2 Waiver

  A party’s rights under this Agreement can only be waived by that party in writing.

• 13.3 Variation

  This Agreement may not be varied except in writing and all written variations must be signed by both parties.

• 13.4 Exercise of rights

  A party may exercise a right, remedy or power in any way it considers appropriate. If a party does not exercise a right, remedy or power at any time, this does not mean that party cannot exercise it later.

• 13.5 Remedies cumulative

  A party’s rights, remedies and powers under this Agreement are in addition to any rights, remedies and powers provided by law.

• 13.6 Indemnities

  The indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.

• 13.7 Counterparts

  This Agreement may consist of a number of copies, each signed by one or more parties to this Agreement. If so, the signed copies are treated as making up the one document and the date on which the last counterpart is executed will be the date of this Agreement.

• 13.8 Entire agreement

  This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

• 13.9 Inconsistency

  Unless expressly stated otherwise, if there is an inconsistency between:

  • the Bupa Quote;
  • the Acceptance Form;
  • these terms and conditions; and
  • any schedules to these terms and conditions,

  the one highest in the order set out above will prevail to the extent of the inconsistency.

14 Interpretation

• 14.1 Definitions

  These meanings apply unless the contrary intention appears:

  • Acceptance Form means the form approved by Bupa Wellness and completed by the Customer as set out on the first page of this Agreement.
  • Bupa Quote means the document (in either hard copy or electronic form) attached to the Acceptance Form which, among other things, sets out the details of the Bupa Services, Timetable and Fees applying to this Agreement.
  • Bupa Services means the services to be provided or arranged by Bupa Wellness or its Related Bodies Corporate under this Agreement, including the delivery of any Deliverables, as described in the Bupa Quote.
  • Business Day means a day other than a Saturday, Sunday or public holiday in:
    • for Bupa Services that will be provided onsite, the state or territory where the Bupa Services will be provided; and
    • for Bupa Services that will be provided virtually, the state or territory from which Bupa Wellness will be providing the Bupa Services.
  • Cancel or Cancellation means the Customer canceling a Bupa Service, product and/or Deliverable once Bupa Services dates have been agreed, Deliverables are being prepared or have been prepared, or products have been ordered without the intent to Reschedule.
  • Cancellation and Reschedule Fees are costs incurred by Bupa Wellness in relation to a Cancellation and/or Reschedule which may include: sunk costs (e.g. setup, development, customisation or other fees); supplier costs (e.g. setup, development, customisation, cancellation, reschedule or other fees); expenses in relation to process milestones completed by Bupa to prepare for and/or deliver the Bupa Services, products and/or Deliverables; and, any costs associated with travel or delivery (e.g. pre-booked flights, accommodation, courier or car hire).
  • Commencement Date means the commencement date as set out in Contract Details.
  • Contract Details means the table titled ‘Contract Details’ set out on the second page of this Agreement.
  • Controller has the meaning given to it by the Corporations Act 2001 (Cth).
  • Customer Database has the meaning given to that term in clause 6.1.
  • Customer Inputs means any Customer inputs set out in the Bupa Quote or as otherwise agreed by the parties in writing.
  • Customer Trade Marks means any trade marks (within the meaning of section 6 of the Trade Marks Act 1995 (Cth)) of the Customer from time to time, whether registered or unregistered.
  • Deliverable means any Material to be delivered to the Customer by Bupa Wellness as part of a Bupa Service provided under this Agreement, as described in the Bupa Quote.
  • Facility means the premises located at the Facility Address that are owned or occupied by the Customer and where the Bupa Services are to be provided by Bupa Wellness.
  • Facility Address means the address set out in the Bupa Quote or otherwise agreed between the parties.
  • Fees means the fees for the Bupa Services as set out in the Bupa Quote and Schedule 1.
  • Force Majeure Event has the meaning given to that term in clause 11.1.
  • GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Insolvent means, for a person, if:
    • t is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth));
    • it has had a Controller appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;
    • it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);
    • an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
    • it is taken (under section 459F(1) of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand;
    • it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject); or
    • it is otherwise unable to pay its debts when they fall due; or
    • something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.
  • Intellectual Property Rights include all patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, knowhow and confidential information and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
  • Material means material in whatever form including documents, reports, products, equipment, videos, DVDs, information, data, and software.
  • Operating Hours means 7am to 6pm on any Business Day.
  • Receiver has the meaning given to it by the Corporations Act 2001 (Cth).
  • Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
  • Representative, in relation to a party, means that party’s representative identified in the Contract Details or any replacement person nominated by that party at any time.
  • Reschedule means the Customer changing an element of a Bupa Service, product and/or Deliverable (e.g. date, time, location, duration and scope) after Bupa Service dates have been agreed, Deliverables are being prepared or have been prepared or products have been ordered, which requires delivery of Bupa Services, preparation of a Deliverable or delivery of products to be planned again.
  • Standard Account Management Services has the meaning given to that term in Section 3.1 of Schedule 1.
  • Tax Invoice has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Term means the duration of this Agreement as specified in the Contract Details.
  • Timetable means the timetable for the delivery of the Bupa Services as set out in the Bupa Quote or otherwise agreed in writing between the parties.
  • Workplace Wellness Funding Credits has the same meaning as in the agreement between the Customer and Bupa HI Pty Ltd for the provision of health insurance to the Customer’s employees.
• 14.2 References to certain general terms

  Unless the contrary intention appears, a reference in this Agreement to:

  • (variation or replacement) a document (including this Agreement) includes any variation or replacement of it;
  • (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  • (singular includes plural) the singular includes the plural and vice versa;
  • (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency;
  • (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
  • (dollars) an amount of money is a reference to the lawful currency of Australia;
  • (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day;
  • (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
  • (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind;
  • (next Business Day) if an event under this Agreement must occur on a stipulated day which is not a Business Day the stipulated day will be taken to be the next Business Day; and
  • (reference to anything) anything (including any amount) is a reference to the whole and each part of it.
• 14.3 Headings

  Headings are included for convenience only and are not to affect the interpretation of this Agreement.

Schedule 1 - Terms of Trade

• 1.1 Cancel and Reschedule

  The parties agree that:

• the Customer must provide written notice to the relevant Bupa Wellness program manager if the Customer wishes to Cancel and/or Reschedule a Bupa Service, product and/or a Deliverable;
• subject to clause 1.1(f), the Customer will only be charged a Cancellation and Reschedule Fee if the reason for the Customer’s Cancellation or Reschedule has arisen from circumstances within the Customer’s reasonable control (i.e. the Customer could have taken reasonable steps to avoid having to Cancel and/or Reschedule the Service, product and/or Deliverable);
• if the Customer notifies Bupa Wellness that it wishes to Cancel and/or Reschedule a Bupa Service, product and/or Deliverable with greater than 5 Business Days’ notice prior to the agreed delivery or due date for a Bupa Service, product and/or Deliverable, the Customer must pay Bupa Wellness any Cancellation and Reschedule Fees (up to a maximum of 100% of the invoice value) associated with travel or delivery (e.g. pre-booked flights, accommodation, car hire or courier costs) and any incurred sunk costs (e.g. setup, development, customisation or other fees) in relation to the Bupa Service, product and/or Deliverable;
• if the Customer notifies Bupa Wellness that it wishes to Cancel and/or Reschedule a Bupa Service, product and/or a Deliverable and provides less than or equal to 5 Business Days’ notice prior to the agreed delivery or due date of a Bupa Service, product and/or Deliverable, the Customer must pay Bupa Wellness any Cancellation and Reschedule Fees (up to a maximum of 100% of the invoice value) associated with travel or delivery (e.g. pre-booked flights, accommodation, car hire or courier costs), any incurred sunk costs (e.g. setup, development, customisation, supplier cancellation or reschedule fees, or other fees) in relation to the Bupa Service, product and/or Deliverable, and any costs incurred in relation to process milestones (in accordance with the table below) completed or achieved by Bupa Wellness in relation to the Bupa Service, product and/or Deliverable;
• if the Customer notifies Bupa Wellness that it wishes to Reschedule a Bupa Service and the Customer Reschedules the Bupa Service more than twice, in addition to the charges payable by the Customer in accordance with item 1.1(c) of this Schedule 1 (Terms of Trade), the Customer must also pay Bupa Wellness any Cancellation and Reschedule Fees (which, to avoid doubt, will not exceed 100% of the invoice value in aggregate including the Cancellation and Reschedule Fees payable under item 1.1(c) of this Schedule 1 (Terms of Trade)) associated with costs incurred in relation to process milestones (in accordance with the table below) completed or achieved by Bupa Wellness in relation to the Bupa Service, product and/or Deliverable.

  Process milestone	Bupa Service and/or Deliverable to Client	Average WPM Time Spent on Milestone	Milestone Flat Fee (WPM Time AUD$120/ph)
  Scheduling	WPM sent tentative dates to client via email, and they have been confirmed by client	30 min	$60
  Provide booking link/marketing material	Email/Dokio proof that booking link and/or marketing material has been provided. If client is not using our booking system or marketing, WPM has set up the job and sent email confirmation to client that the job is setup.	45 min	$90
  Monitor booking rates	Booking update has been provided to client by WPM via email	15 min	$30
  Cancel and/or reschedule booked participant appointments	Contact booked participants RE cancellation/reschedule AND/OR Re-allocate booked appointments to another service date in the booking system	30 min	$60

• to avoid doubt, if the Customer wishes to Cancel and/or Reschedule (or does Cancel and/or Reschedule) the Bupa Service (or part of the Bupa Service) due to the implementation or announcement of a free or subsidised flu vaccination program by a State government, the Cancellation and Reschedule Fees as set out above will still apply.

• 1.2 Agreement Regarding Cancellation and Rescheduling Fees

  The parties agree that the payment of Modification Costs and other amounts set out in this Schedule, Sections 1.1 and 1.2, is not a penalty and is a genuine pre-estimate of the loss likely to be suffered by Bupa Wellness as a result of cancellation or modification of the Bupa Services. If a court of competent jurisdiction determines that (contrary to the intention of the parties) any Modification Costs constitute a penalty, those Modification Costs will reduce to such amounts as the court considers not to constitute a penalty.

2 Travel Costs, Accommodation and Incidentals

Travel costs, accommodation and incidentals must be paid by the Customer in accordance with the Bupa Quote.

3 Account Management

3.1 Unless otherwise set out in this Agreement, the Fees include the following standard account management services (Standard Account Management Services):

• introduction meeting and program implementation discussion;
• logistics co-ordination and activity scheduling with sites;
• online booking system set-up;
• online portal set-up, maintenance and updates (where portal purchased as part of the program);
• Co-branded marketing communications distributed to client for broadcast (standard delivery includes launch eDM, reminder eDM, up to 20 x A3 Bupa-supplied posters printed and delivered to site);
• monitoring of appointment bookings and adjustments made as necessary;
• management and rescheduling of participant appointment bookings;
• end-of-activity reporting: participation numbers, feedback, health data – including site, gender, age and year-on-year comparisons (where applicable). Reports can only be provided when 30+ people participated in the service, to ensure Bupa meets privacy standards;
• presentation of program reports (where applicable);
• general client liaisons via email and phone; and
• management of general participant enquiries.

3.2 Any additional program management requests from the Customer will be assessed on a case-by-case basis and will be charged at a rate of $120 per hour.

Schedule 2 – Flu Vaccination Voucher Terms of Use

Except as otherwise agreed between the parties, the following terms apply if Bupa Wellness has agreed to provide the Customer with Flu Vaccination Voucher Services. The Customer will comply with, and will ensure its employees who use such services are aware of and comply with, the following terms of use.

1 Key Terms

The Customer and each employee who redeems or intends to redeem a voucher (recipient) agree that:

• by using a voucher, they accept the terms and conditions of the relevant pharmacy or pharmacy chain regarding the recipient’s use of the voucher and the associated flu vaccination;
• vouchers are valid for use at participating stores only;
• voucher redemption is subject to availability at individual pharmacies;
• employees will be provided with a URL to select their preferred pharmacy and available store(s) at which they intend to redeem their voucher. They will be emailed a unique voucher code for the selected pharmacy or pharmacy chain and instructions on how to book a time and date for redeeming their voucher;
• the voucher code is unique to that pharmacy chain and cannot be transferred between different pharmacy chains without contacting Bupa Wellness Customer Service to determine availability;
• vouchers are to be used by employees of the Customer only and cannot be transferred to other friends or family members outside of the Customer’s organisation;
• to redeem a flu vaccination voucher, the recipient must book an appointment online using the relevant pharmacy’s online booking system;
• recipients must arrive 5 minutes prior to their appointment and should be aware they will need to remain in store for a further 15 minutes observation period after their flu vaccination;
• some people may not be eligible for the flu vaccination. Employees should therefore call their selected pharmacy to confirm eligibility before acquiring a voucher;
• employee details entered on the voucher may be provided to Bupa Wellness. Personal health information provided in the pre-screening form or discussed with the pharmacist will not be disclosed to any third party; and
• all recipients must be 18 years or over to use this flu vaccination voucher service.

2 Liability

The Client acknowledges that Bupa Wellness is not the provider of the flu vaccination voucher services, and that these services are provided by a third-party provider.

As such, except for any liability that cannot be excluded by law, and except to the extent caused or contributed to by Bupa Wellness’ breach of law, negligence or wilful misconduct, Bupa Wellness (including its officers, employees, agents and related bodies corporate) excludes all liability (including negligence) for any: personal injury (including death and illness) or any loss or damage (including loss of opportunity), whether direct, indirect, special or consequential; arising in any way out or in connection with these terms and conditions set out in this Schedule 2, including, but not limited to, where arising out of the following (to the extent these events are beyond Bupa Wellness’s reasonable control): (a) any technical difficulties or equipment malfunction; (b) any theft, unauthorised access or third party interference; (c) any voucher that is expired, lost, altered, damaged or misdirected (whether or not after their receipt by Bupa Wellness or the Pharmacy group) due to any reason beyond the reasonable control of Bupa Wellness.

3 Providers of Services

The Customer and each recipient further agree that:

• the flu vaccination vouchers are sold by Bupa Wellness on behalf of Australian Vaccine Services and participating pharmacies. The relevant pharmacies provide the flu vaccination service directly to individuals and are wholly responsible for the flu vaccination service;
• Bupa Wellness is not the provider of such services and has no responsibility for any flu vaccination voucher or flu vaccination services provided or not provided to individuals;
• all flu vaccination vouchers are issued subject to the terms and conditions of the selected pharmacy and these Bupa Wellness terms and conditions;
• Bupa Wellness does not control, makes no warranties nor accepts liability for the clinical service delivery or business operations of Australian Vaccine Services or individual pharmacy groups; and
• during the appointment to receive a flu vaccination, recipients will be asked to complete a consent form and may be asked some questions about existing health and any previous reactions they may have had to a flu vaccination. If they do not provide the requested information the pharmacy may not be able to perform the flu vaccination.

4 Collection of information

• Bupa Wellness collects and uses client information in order to deliver the Flu Vaccination Voucher Services and may, for this purpose, disclose such information to third parties, including but not limited to agents, contractors and service providers. If Bupa Wellness intends to send client information outside of Australia, it will require that the recipient of the information comply with privacy laws and contractual obligations to maintain the security of the data.
• The provision of the Flu Vaccination Voucher Services is conditional on the client information being provided.
• The details of all Flu Vaccination Voucher Services performed under the terms of this Schedule 2 are the property of Bupa Wellness.
• Unless otherwise indicated by the Customer, by agreeing to the terms of this Schedule 2, the Customer agrees to permit Bupa Wellness providing the Customer with information in relation to the services and products of the Bupa Australia Group of companies.
• The Customer should direct any complaints, request to access, update or correct personal information to Bupa Wellness. Collection, use and disclosure of information collected in connection with the flu vaccination voucher services will be handled in accordance with Bupa Wellness’s Privacy Policy, which can be located at https://bupawellness.com.au/terms/privacy_policy.html.

Schedule 3 – Flu Vaccination Reimbursement Terms of Use

Except as otherwise agreed between the parties, the following terms apply if Bupa Wellness has agreed to provide the Customer with flu vaccination reimbursement services. The Customer will comply with, and will ensure its employees who use such services are aware of and comply with, the following terms of use.

• Key Terms

  The Customer and each employee who submits a flu vaccination reimbursement request (recipient) agree that:

  • The recipient will be provided with a URL to submit their reimbursement request.
  • To submit a reimbursement request, the recipient must receive a flu vaccination at an authorised and accredited GP, medical centre or pharmacy and provide name, email, bank details (account name, BSB, Account Number), vaccination receipt and proof of vaccination via the URL provided. If the recipient does not provide all information required, their claim should not be approved by the Customer.
  • Flu vaccination reimbursement services are to be used by recipient of the Customer only and cannot be transferred to other friends or family members outside of the Customer’s organisation.
  • All recipients must be 16 years or over to use this flu vaccination reimbursement service.
  • The bank account used by the recipient for the reimbursement request must be held in the recipient’s name.
  • The Customer will be provided with a URL to approve the recipient’s reimbursement request.
  • The Customer must ensure that recipients:
    • only submit one claim each through the URL provided for the reimbursement request;
    • do not email or call the flu vaccination reimbursement service provider to submit their reimbursement request;
    • receive the flu vaccination in Australia and pay for the flu vaccination in Australian dollars;
    • submit an invoice containing only the flu vaccination service, and no other goods or services to be included in or itemised on the invoice;
    • provide a legible and clear invoice and vaccination certificate to assist with assessing the reimbursement request; and
    • not use the reimbursement system to make false, misleading or fraudulent claims, or claims not for a flu vaccination.
  • The Customer must not make any promises to recipients that recipients will receive reimbursement for their claim, except where the Customer has approved the recipient’s claim.
  • The Customer must not make any promises to recipients that recipients will receive their reimbursement within a particular time period.
  • Bupa Wellness and the Customer may agree to cap the claim amount in the flu reimbursement service provider’s system to ensure recipients do not submit claims above that cap.
  • Reimbursements must be approved by the Customer after verifying the following details (please note that this list not an exhaustive list and the Customer is encouraged to implement appropriate, adequate and operationally effective controls to ensure their approval process is robust):
    • Employee details;
    • Vaccination receipt;
    • Proof of vaccine; and
    • Approved reimbursement log (to ensure no duplication or fraudulent claims).
  • Once approved by the Customer, the flu reimbursement service provider will reimburse approved claims and pay directly to the BSB and Account Number provided by the recipient making the claim. Reimbursements will only be made in Australian Dollars to Australian bank accounts. Please note that Bupa Wellness and the flu reimbursement service provider will not take steps to check for duplicate or fraudulent reimbursements, and this is the responsibility of the Customer to conduct these checks.
  • If a recipient provides incorrect banking information that leads to a payment “going missing” or not being received by the recipient, the full cost of the reimbursement and administration fee will still be charged to the Customer.
  • If an employee provides incorrect banking information that leads to a payment being returned to the flu reimbursement service provider by the bank, the Customer will be charged the administration fee for processing the payment (noting that the flu reimbursement service provider is charged a bank fee for rejected payments). The recipient making the claim must make a 2nd claim with the correct banking information. The Customer will incur an additional administration fee in these circumstances.
  • Bupa Wellness will invoice the Customer for all approved claims during the period of time stated in the invoice for the total amount reimbursed to the recipients plus the admin fee per approved claim.
  • Recipient details entered on the reimbursement request form may be provided to Bupa Wellness. Personal health information provided in the pre-screening form or discussed with the GP or pharmacist will not be disclosed to any third party.
  • The Customer is financially responsible for approving claims from recipients. If the Customer incorrectly approves a claim for a recipient (for any amount), the Customer is solely liable and must pay the flu reimbursement service provider for that claim (reimbursement and administration fee). The flu reimbursement service provider will rely on the approval and will pay the reimbursement according to that approval. The flu reimbursement service provider will not double check the approvals with the Customer before paying reimbursements.
  • If the Customer is unable to verify the reimbursement or has a query regarding the reimbursement (for example, due to duplicative claims or fraudulent requests), the Customer is solely responsible for managing and resolving these issues directly with the recipient. Bupa Wellness will not provide any support in managing and resolving reimbursement queries or issues directly with recipients.
  • If the Customer does not approve the reimbursement before 16 August 2024, the reimbursement will not be paid by the flu reimbursement service provider and the Customer may need to directly reimburse the recipient outside of this Agreement. Bupa Wellness and the flu reimbursement service provider will not be liable to reimburse the Customer.
  • If there is a discrepancy between the number of flu reimbursements the Customer expected to pay for in an invoice period and the amount included in the invoice by Bupa Wellness, the Customer must submit appropriate evidence to Bupa Wellness of the number of flu reimbursements approved during the invoice period, and once received, Bupa Wellness will take steps to liaise with the flu reimbursement service provider to address the discrepancy.
• Liability

  The Client acknowledges that Bupa Wellness is not the provider of the flu vaccination reimbursement services, and that these services are provided by a third-party provider.
  
  As such, except for any liability that cannot be excluded by law, and except to the extent caused or contributed to by Bupa Wellness’ breach of law, negligence or wilful misconduct, Bupa Wellness (including its officers, employees, agents and related bodies corporate) excludes all liability (including negligence) for any: personal injury (including death and illness) or any loss or damage (including loss of opportunity), whether direct, indirect, special or consequential; arising in any way out or in connection with these terms and conditions set out in this Schedule 3, including, but not limited to, where arising out of the following (to the extent these events are beyond Bupa Wellness’ reasonable control): (a) any technical difficulties or equipment malfunction (whether or not under Bupa Wellness’ control); (b) any theft, unauthorised access or third party interference; (c) any reimbursement request or claim that is expired, lost, altered, damaged or misdirected (whether or not after their receipt by Bupa Wellness or the reimbursement service provider) due to any reason beyond the reasonable control of Bupa Wellness.

• Collection of information
  • Bupa Wellness collects and uses client information in order to deliver the flu vaccination reimbursement services and may, for this purpose, disclose such information to third parties, including but not limited to agents, contractors and service providers. If Bupa Wellness intends to send client information outside of Australia, it will require that the recipient of the information comply with privacy laws and contractual obligations to maintain the security of the data.
  • The provision of the flu vaccination reimbursement services is conditional on the client information being provided.
  • The details of all flu vaccination reimbursement services performed under the terms of this Schedule 3 are the property of Bupa Wellness.
  • Unless otherwise indicated by the Customer, by agreeing to the terms of this Schedule 3, the Customer agrees to permit Bupa Wellness providing the Customer with information in relation to the services and products of the Bupa Australia Group of companies.
  • The Customer should direct any complaints, request to access, update or correct personal information to Bupa Wellness. Collection, use and disclosure of information collected in connection with the Flu Vaccination Reimbursement Services will be handled in accordance with Bupa Wellness’s Privacy Policy, which can be located at https://bupawellness.com.au/terms/privacy_policy.html and Australian Vaccination Services Privacy Policy, which can be located at https://www.ausvacs.com.au/wp-content/uploads/2022/09/AVS-Privacy-Policy-Sept-2022.pdf.

Schedule 4 – Motivational speaker service

• Bupa Wellness allows the Customer to record one live session on the day of the motivational speaker service (“Recording”). Bupa Wellness, with permission of the speaker, grants the Customer with a limited, worldwide and royalty-free license to view such Recording on the Customers' internal, password protected platform for a period of 12 months from the date the speaker provided the applicable Bupa Service to the Customer, after which the Recording will be deleted from all internal platforms by the Customer. The Customer warrants that it will not use, copy, modify, download, transmit, distribute, or provide access to the Recording unless as permitted under this Agreement. Any other use of the Recording outside of this Agreement is subject to Bupa Wellness and the speaker’s prior written permission. The Customer will confirm the deletion in writing at the end of the 12 month period to Bupa Wellness.
• If the Customer notifies Bupa Wellness that it wishes to Cancel and/or Reschedule the motivational speaker service prior to or on the agreed delivery or due date of the motivational speaker service, the Customer must pay Bupa Wellness any Cancellation and Reschedule Fees (up to a maximum of 100% of the invoice value) associated with travel or delivery (e.g. pre-booked flights, accommodation, car hire or courier costs), any incurred sunk costs (e.g. setup, development, customisation, supplier cancellation or reschedule fees, or other fees) in relation to the motivational speaker service, and any costs incurred in relation to process milestones (in accordance with the table set out in Schedule 1) completed or achieved by Bupa Wellness in relation to the motivational speaker service.