Overview
1.1 The Service Provider Portal (Portal) for the Head to Health – National Mental Health Website (Website) has been prepared and is managed by the Australian Government Department of Health and Aged Care (Department, we, us, our). The Department makes available this Portal to facilitate access by approved service providers (Service Provider) to certain functionalities of the Website to provide the general public and health care professionals (End Users) with information about a range of mental health-related products and services.
1.2 This document sets out the terms and conditions which govern the use of the Portal by Service Providers (Terms). By applying to access and use the Portal, the Service Provider agrees to these Terms. The Service Provider must not apply to access or use the Portal if it does not agree to these Terms.
Applying to access and use the Portal
2.1 To apply to access and use the Portal, the Service Provider will be issued an onboarding link which will provide the Service Provider with login access to the Portal, and prompt it to complete the ‘Account Set-up Form’ and submit an application through the Portal (Application). The Service Provider must keep the login details secure and confidential and must not provide any unauthorised third parties access to the Portal.
2.2 The Application process may set out minimum requirements which the Service Provider must meet for the Application to be accepted (Minimum Requirements). The Department may update and modify the ‘Account Set-up Form’ and Application questions, including the Minimum Requirements, at any time without notice.
2.3 The Service Provider warrants that the information it provides in its Application is true, complete and not misleading.
2.4 Once the Service Provider has submitted an Application, including any supporting evidence or documentation to the Department’s reasonable satisfaction, the Department may, in its sole and absolute discretion, accept or reject the Service Provider’s Application. The Service Provider will be informed of the Department’s decision to accept or reject the Service Provider’s application through the Portal.
Access and use of the Portal
3.1 If the Department accepts a Service Provider’s Application in accordance with clause 2.4, the Service Provider will, subject to the rights of the Department in these Terms, be authorised to access and use the Portal in order to include its services on the Website (Services).
3.2 The Service Provider will submit to the Portal such material, content and information in relation to its Services as may be reasonably required by the Department to promote the Services on the Website (Service Information). The Service Provider agrees to do all things and provide all information necessary to ensure that the Service Information is kept accurate, up to date, complete and relevant (including by reviewing and updating the Service Information at least once every 12 months). The Service Provider agrees to comply with the Department’s reasonable directions in relation to the Service Information, which may be communicated through the Portal.
3.3 If the Service Provider makes any changes to its branding, the Services or the Service Information, the Service Provider must promptly complete a ‘SPP Edit or Add a Service Form’ through the Portal to notify the Department. The Department will review the changes and may approve or reject, in its sole and absolute discretion, any updates to the Portal.
Control of the Website and the Portal
4.1 Notwithstanding clause 3, the Department retains the sole and absolute discretion in relation to the Website and Portal contents, design, layout, information, materials and set up, including:
(1) whether to use the Service Information provided by the Service Provider;
(2) the context in which the Service Information will be used (or not used); and
(3) how the Service Information will appear to End Users (subject to the Service Provider’s reasonable brand requirements and the Website content management system).
Service Provider obligations
5.1 The Service Provider must:
(1) in its own reasonable discretion, take steps to promote the Website on its social media networks, newsletters, surveys or promotional campaign materials;
(2) not make any statement or representation or engage in any conduct which is defamatory, disparaging of, or derogatory to the Website or the Department or which may otherwise adversely affect the Website’s or the Department’s reputation;
(3) not engage in any false, misleading, deceptive, indecent or unlawful conduct in connection with the Website, the Services, the Service Information or these Terms;
(4) not make any claims that the Commonwealth or the Department have endorsed the Services by accepting the Service Provider’s Application or permitting the Service Information to be included on the Website; and
(5) keep the Department informed and up-to-date, including to provide information about the availability and appropriateness of Service for particular End Users, incidents relating to the Service, the evidence base underlying the Service, changes to the Service Provider’s details, standards, qualifications and circumstances.
5.2 In relation to its Services, the Service Provider must ensure that the Services:
(1) comply with all applicable laws including the Privacy Act 1988 (Cth) and the Online Safety Act 2021 (Cth);
(2) do not contain any content or material that infringes the intellectual property rights (IP Rights) of any person;
(3) are not defamatory, illegal, offensive or discriminatory; and
(4) are consistent with the general health and wellbeing objectives of the Website and the Department.
5.3 The Service Provider is responsible for providing Services to End Users. Accordingly, the Service Provider is responsible for:
(1) any loss or damage suffered by an End User or the Service Provider in connection with any negligence or breach by the Service Provider in respect of these Terms or any Services provided by the Service Provider; and
(2) any claim by an End User against the Department or the Service Provider in connection with any negligence or breach by the Service Provider in respect of these Terms or any Services provided by the Service Provider.
5.4 In relation to the Website, the Service Provider must:
(1) implement cookies, tags or other tracking code (as specified by the Department or its nominee) in order to enable the Department to collect traffic and aggregated use data;
(2) not attempt to tamper with, hinder the operation of, or make unauthorised modifications to, the Website; and
(3) not transmit any malware, bug, virus or other disabling feature to or through the Portal or Website.
Reporting and consultation
6.1 The Service Provider must provide the Department with reports (Reports) and other such information and data relating to the performance of the Services [monthly or another agreed upon date with the Department]. The Reports must not include any personal information about End Users, but must include the number of End Users referred to the Services through the Website, anonymised feedback and comments from End Users regarding the Website functions and performance and other such information the Department may specify.
6.2 Upon request, the Service Provider agrees to:
(1) advise the Department on how to improve the Website or the Head to Health National Mental Health Program (Program);
(2) develop additional content for the Website as may be reasonably required by the Department;
(3) participate in forums and advisory meetings in relation to the Website and the Program; and
(4) cooperate with the Department to develop further opportunities for the Website, including additional Services or products.
Intellectual property
7.1 Nothing in these Terms affects the ownership of IP Rights in any pre-existing material of the Department or the Service Provider.
7.2 IP Rights in any Service Information or Reports created by the Service Provider and delivered to the Department vests in the Service Provider upon creation.
7.3 Subject to clause 7.4, and in consideration for the opportunity to promote the Services on the Website or on similar State or Territory based Websites, the Service Provider grants to the Department and equivalent State and Territory departments of health a non-exclusive, royalty-free, fee-free perpetual and world-wide licence to use, adapt, modify, communicate, reproduce and publish the Service Provider’s:
(1) trade marks, brands and logos;
(2) Service Information; and
(3) Reports,
for the purposes of the Department and equivalent State and Territory departments of health in their sole and absolute discretion:
(4) promoting the Services and the Service Provider on the Portal and Website; and
(5) exercising their statutory functions and powers in connection with the Program or similar State and Territory programs.
7.4 The Service Provider agrees and must obtain the consent of its personnel (Author) to any act or omission that might otherwise infringe any moral rights of that Author under Part IX of the Copyright Act 1968 (Cth) (Moral Rights) in respect of the Department’s use of any works provided, created or developed by the Author on behalf of the Service Provider. The Service Provider must provide the Department with evidence or copies of such consents upon request.
7.5 The Service Provider must not copy, use or modify any IP Rights of the Department without the prior written consent of the Department.
Privacy
8.1 The Service Provider must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
8.2 The Service Provider must not cause, by its conduct or omission, the Department to breach the Department’s privacy policy or the Privacy Act 1988 (Cth). For more information please refer to https://www.headtohealth.gov.au/privacy-policy.
Warranties and limitation of liability
9.1 The Service Provider warrants that:
(1) it has full legal capacity and power to agree to these Terms and to carry out the activities that it contemplates;
(2) it has obtained all licences, authorisations, approvals, rights and consents required for entering into and giving effect to these Terms;
(3) it owns or has rights to all necessary IP Rights to grant to the Department all rights which are granted to the Department under these Terms;
(4) the Service Information and Reports do not contain any content, information or material that infringes the IP Rights of any person;
(5) no actual or potential conflict of interest exists or is likely to arise in the performance of the Service Provider's obligations under these Terms, and if such a conflict of interest arises, the Service Provider will promptly notify the Department; and
(6) the Service Information and Reports are accurate, complete, up to date and not misleading.
9.2 Neither party will be liable to the other party for any indirect or consequential loss or damage (Loss) arising under or in connection with these Terms, including any loss of profit, revenue, business or goodwill, except to the extent that such Loss arises under or in connection with:
(1) an indemnity under these Terms;
(2) breach of IP Rights by the Service Provider; or
(3) any claims made by any person against the Department in connection with any personal injury, illness or death or loss of or damage to property in respect of any Services provided by the Service Provider.
Indemnity
10.1 The Service Provider must indemnify and keep indemnified the Department against any claim, loss or damage arising out of or in connection with any:
(1) negligence or wilful breach of these Terms by the Service Provider or its personnel;
(2) claim for infringement of IP Rights or Moral Rights in connection with the Services, Service Information, Reports or the Service Provider trade marks, brands or logos;
(3) breach by the Service Provider or its personnel of privacy or confidentiality, including any claims in connection with the provision by the Service Provider of the Services;
(4) claims by any person against the Department in respect of personal injury, illness or death or loss of or damage to property in connection with the provision by the Service Provider of the Services; and
(5) claims by any person against the Department in respect of any fraud, wilful misconduct, negligence or criminal conduct by the Service Provider or its personnel.
Termination or expiry
11.1 The Department may in its sole and absolute discretion suspend or terminate the Service Provider’s access and use of the Portal for any reason with 30 days’ prior written notice.
11.2 The Department may suspend or terminate the Service Provider’s access and use of the Portal immediately upon any of the following events occurring:
(1) the Service Provider is in breach of these Terms;
(2) the Department considers that the Service Provider’s conduct, acts or omissions causes an actual or potential contravention of these Terms or has or is likely to have a material adverse impact on the Website or Program;
(3) the Department has received negative feedback from End Users in relation to the Services or any other services provided by the Service Provider to End Users;
(4) there is a change in control of the Service Provider such that (whether formally or informally) the power to control or influence the Service Provider resides with persons other than those holding that power as at the time the Application was submitted; or
(5) subject to law, the Service Provider becomes, threatens, resolves to become, or in the reasonable opinion of the Department, is likely to become subject to any form of insolvency, administration, receivership, bankruptcy, liquidation or similar event.
11.3 The Service Provider may use the Portal to withdraw its Services, Service Information and branding from the Website with 30 days’ prior written notice to the Department, at which time these Terms will terminate.
Confidentiality
12.1 For the purposes of this clause 12, Confidential Information means all information, in any medium, treated by a disclosing party as confidential information, or which a recipient party ought reasonably to have known is confidential to the disclosing party.
12.2 The Service Provider must not, without the prior written approval of the Department, disclose or make any unauthorised use or reproduction of the Department’s Confidential Information (or any copy or part of them) or use them for any purpose other than the purposes of these Terms. The Service Provider must take all necessary steps to safeguard the Department’s Confidential Information.
12.3 Notwithstanding any other provision of these Terms:
(1) the Service Provider may disclose the Department’s Confidential Information if required by law or if it becomes publicly available without breach of these Terms;
(2) the Department may disclose Confidential Information of the Service Provider to its Minister or for any other Government purposes; and
(3) the Service Provider authorises the Department to make information concerning the Service Provider and the Services available to other Government agencies, including State and Territory agencies. Such information may include any information provided by the Service Partner to the Department in connection with these Terms, and any information relating to the Service Provider’s performance under these Terms.
General
13.1 Subcontracting and assignment: The Service Provider must not subcontract, novate or assign any rights or obligations arising out of these Terms without the prior written consent of the Department, which consent may be withheld at the Department’s sole and absolute discretion. Any subcontracting, novation or assignment of these Terms without the prior written consent of the Department is a breach of these Terms and will have no legal effect. The Service Provider will remain liable for all its obligations and liabilities pursuant to these Terms and will be vicariously liable for the acts and omissions of its subcontractors.
13.2 Notices: Any notice given in connection with these Terms is only effective if it is in writing.
13.3 No waiver: Failure by the Department to enforce any provision of these Terms does not constitute a waiver of that term and does not impair the right of the Department to enforce it at a later time or to pursue remedies it may have for any subsequent breach of that term.
13.4 Severability: If at any time a provision of these Terms is or becomes illegal, invalid or unenforceable in any jurisdiction, this will not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of these Terms or the legality, validity or enforceability under any other jurisdiction of that or any other provision of these Terms.
13.5 Expenses: Each party must pay its own costs and expenses in respect of the negotiation, preparation, execution and delivery of these Terms.
13.6 Variation: No provision of these Terms or a right conferred by it can be varied except in writing signed by the parties.
13.7 Governing law: These Terms are governed by the laws of the Australian Capital Territory and the Commonwealth of Australia. The parties submit to the exclusive jurisdiction of the courts of the Australian Capital Territory.
