1.1 The relationship between the Application Provider and you in connection with the Application and any other related services is governed by:
(a) these Terms & Conditions; and
(b) where the Application is provided to you via another platform (such as Apple's App Store, or Google's Play Store), that platform provider's Application End User License Agreement (General Conditions), (collectively, this Agreement).
1.2 To the extent that any of these Terms & Conditions are inconsistent with the General Conditions, these Terms & Conditions prevail.
1.3 Your use of the Application will constitute and evidence your unqualified acceptance of this Agreement.
2. Grant of licence
2.1 Subject to this Agreement, by registering to use the Application as a User, the Application Provider grants you a revocable, personal, non-exclusive and non-transferable licence and right to use the Application.
2.2 Upon your registration you will be provided with a User Account. Subject to this Agreement, your User Account may grant you access to use the Application in the following capacities:
(b) Primary Carer; or
(c) Support Crew Member.
2.3 A Primary Carer and a Support Crew Member's access to a Patient's User Account shall be determined by:
(a) in the case of a Primary Carer, the Patient; and
(b) in the case of a Support Crew Member, either the Patient or the Primary Carer.
2.4 Once you have downloaded the Application, you will be required to register your personal details to the Application Provider. You may also elect to provide details to Third Party Providers. You must provide accurate, complete and up-to-date information as requested. It is your responsibility to inform the Application Provider of any changes to your registration information.
This Agreement commences on the date that you register to use the Application and will remain in force for perpetuity until terminated by either party.
4.1 The Application Provider provides the Application for the purpose of:
(a) assisting Users by providing a communication tool to help solve the everyday challenges associated living with a medical illness; and
(b) connecting Users with products and services that aim to improve their experience beyond the healthcare system, (collectively, the Intended Purpose). The Application is not a health or medical service.
4.2 In providing the Application to you, the Application Provider may allow you to enter User Content into a User Account for the purpose of:
(a) creating and updating your information on the Application;
(b) streamlining the administration of services to people undertaking medical treatment;
(c) creating and searching for tasks to be completed by Users;
(d) connecting Users with Third Party Providers;
(e) communicating with friends and family; and
(f) any other purpose at the Application Provider's discretion which is consistent with theIntended Purpose.
4.3 All Users acknowledge that the Application Provider accepts no responsibility for:
(a) the conduct of any User;
(b) where a User engages a Third Party Provider through the Application to provide goods or services, the conduct of the Third Party Provider;
(c) the accuracy, quality or otherwise acceptability or delivery of any goods or services provided by a Third Party Provider;
(d) any interaction (in whatever form) between a User and a Third Party Provider;
(e) any additional legal obligations for which a you become bound including any obligations owed by a User to a Third Party Provider; and
(f) any additional costs, fees, expenses or liabilities (whether incurred directly or indirectly) which are incurred by a User and are not contemplated by this Agreement.
5. Conditions of use of the Application
5.1 Unless otherwise stated in writing by the Application Provider, you must only use the Application for purposes that are consistent with the Intended Purpose or as otherwise directed in writing by the Application Provider.
5.2 You must at all times comply with the terms and conditions of this Agreement.
5.3 You acknowledge and agree that:
(a) you are responsible for ensuring that no unauthorised persons access your User Account;
(b) in addition to any database that may be compiled through your use of the Application, it will be necessary for the Application Provider to record in a database all data received by it via your use of the Application and such database will at all times be the property of the Application Provider; and
(c) the Application Provider may send you emails, text messages, notifications and any other alerts in connection with your use of the Application.
5.4 You must not directly or indirectly:
(a) copy, alter, modify, reverse engineer, translate, disassemble or de-compile any part of the Application;
(b) grant any party a sub-licence to access or use the Application for any purpose;
(c) distribute or resell access to the Application to any person;
(d) adapt, create derivative works of, or otherwise modify any part of the Application;
(e) circumvent the operation of any part of the Application in any way;
(f) use the Application in any way that:
(ii) represents that the Application Provider endorses, has reviewed or in any way agrees with the material communicated by you;
(iii) is misleading or deceptive; or
(iv) may affect the availability of the Application or causes interference to the normal operation of the Application;
(v) is defamatory or may be defamatory; or
(g) encourage, assist, or grant the right or ability to any other party to engage in conduct similar to that in this clause 5.4.
5.5 From time to time, the Application Provider may alter or vary the Application and/or this Agreement. These alterations may, among other things, have the effect of:
(a) providing a means of using enhanced or added functionality;
(b) increasing the Fees; or
(c) removing access to functionality that had previously been available.
5.6 This clause 5 survives termination of this Agreement for any reason.
6. User Accounts
6.1 Upon registering for the Application, you will be provided with a User Account. Your User Account will consist of User Content uploaded by yourself and the Application Provider as well as various other data inputted by the Application Provider and other User Accounts that you have authorised.
6.2 A User Account that is registered as a Patient may only be created, accessed or managed by:
(a) that User Account; or
(b) other User Accounts that are authorised to access the User Account as either a Primary Carer or Support Crew Member.
6.3 Before a Primary Carer or Support Crew Member may access a Patient's User Account, that Patient (or Primary Carer where authorised) must provide consent. If you are a Patient, you may grant such access or permissions to a Primary Carer or Support Crew Member to view, access or use (as provided by the Application) your User Account at your complete discretion. Where you have authorised a Primary Carer to grant such access or permissions, the Primary Carer may do so as if the Primary Carer were the Patient.
6.4 Where you are using or accessing the Application to assist a Patient as either Primary Carer or a Support Crew Member, you acknowledge that your use of the Application in such capacity will automatically be suspended or terminated upon suspension or termination of the relevant Patient registration.
6.5 You must keep confidential and safeguard from unauthorised use any user names and passwords required to access any facility forming part of, or made available while using, the Application.
7. Fees, Invoicing and payment
7.1 The Application Provider will not invoice you for downloading the Application. Upon registering your User Account to use the Application as a Patient, Primary Carer or Support Crew Member you will be required to pay Licence Fees as specified by the Application (subject to any free trial period). License Fees will be payable monthly in advance.
7.2 Another User may, at their absolute discretion, pay Licence Fees on your behalf in connection with your use of the Application as a Patient, Primary Carer or Support Crew Member.
7.3 In addition to Licence Fees, you may also be charged Service Fees for using the Application in certain circumstances, including in connection with engaging a Third Party Provider. However, you will not incur or be charged Service Fees unless you expressly consent to incurring such fees through your use of the Application.
7.4 You acknowledge that:
(a) where you purchase goods or services from a Third Party Provider using the Application your liability to that Third Party Provider (including payment for such goods or services) will be governed by the Third Party Provider's terms and conditions; and
(b) in certain circumstances the Application Provider may receive commissions or rebates from a Third Party Provider in connection with your purchase of a product or service from a Third Party Provider.
7.5 The Fees are payable in the form directed by the Application Provider which may include direct debit to the Application Provider’s nominated bank account and, if required by the Application Provider, you will execute a direct debit authority in favour of the Application Provider and do anything else reasonably required to establish and maintain that direct debit facility during the term for the payment of the Fees owing from time to time to the Application Provider. The Application Provider’s invoices are otherwise payable within 14 days of invoice.
7.6 Upon receipt of an invoice by the Application Provider, you must pay the Application Provider the Fees.
7.7 If you fail to pay any invoice by the due date for payment, then the Application Provider may suspend your User Account.
8. Intellectual property
8.1 You acknowledge that the Application is the subject of copyright and other intellectual property rights.
8.2 You must not at any time do or permit any act to be done that infringes those intellectual property rights.
9.1 During the Term, the Application Provider will take reasonable steps to ensure the availability of the Application.
9.2 The Application Provider is not required to provide support in relation to the Application however it may do so at its absolute discretion.
9.3 When reporting a problem or issue to the Application Provider, you must use reasonable endeavours and do all things reasonably necessary (as directed by the Application Provider) to assist the Application Provider in resolving that problem or issue, including executing all necessary documents and updating any electronic systems.
11.1 You acknowledge the confidentiality and the proprietary nature of the Application Provider’s and other Users' Confidential Information and that no right, entitlement or interest in that Confidential Information is extended to or conveyed to you other than for the purposes contemplated by this Agreement. You undertake and agree that you will:
(a) keep all of the Application Provider’s and other User's Confidential Information confidential; and
(b) only use the Application Provider’s and other User's Confidential Information for purposes consistent with the Intended Purpose.
11.2 You acknowledge that a breach of this clause 10 may cause the Application Provider or other User irreparable damage for which monetary damages would not be an adequate remedy.
11.3 You acknowledge that this clause 10 may be relied upon and enforced by other Users in accordance with its terms, even though those persons are not party to it.
11.4 The obligations under this clause 10 survive termination of this Agreement for any reason.
12. Warranty and liability
12.1 You acknowledge that:
(a) the Application Provider does not provide Medical Advice and that you must not rely on or interpret any representation (however made) in connection with the Application or the Application Provider as constituting any form of Medical Advice;
(b) the Application Provider makes no warranty or representation that your use of the Application will comply with any applicable laws in respect of health services;
(c) the Application will not be uninterrupted or error-free;
(d) the performance of the Application (including response times) will depend on factors outside the parties’ control including the design and performance of your information technology systems, and the state of the relevant telecommunications networks and their interconnections and network status;
(e) although the Application Provider will implement reasonable security procedures, it cannot warrant that unauthorised access to information and data cannot occur;
(f) you have relied on your own independent assessment and judgment in determining whether the Application meets your needs and requirements; and
(g) you are solely responsible for the accuracy, quality, integrity and legality of, and the method of collection of, any data submitted via the Application by you or your agents.
12.2 Unless this Agreement provides otherwise, to the extent permitted by the law, the Application Provider expressly excludes all conditions and warranties whether express or implied, statutory or otherwise.
12.3 In no event will the Application Provider be liable to you or any other party for any indirect, punitive, special, incidental or consequential loss in connection with or arising out of this Agreement or your access to or use of the Application (including for loss of profits, use, data, or other economic advantage), regardless of how it arises, whether for breach of this Agreement or on any other basis, and even if it has been previously advised of the possibility of such damage.
12.4 The Application Provider will have no liability in respect of any claim, loss or damage an unauthorised party's access or use of your User Account (unless that party's access is attributable to the negligence or wilful misconduct of the Application Provider);
(a) any use of a Patient's User Account by a Primary Carer;
(b) any addition to or modifications to the Application made or procured by you which are not created or supplied by or on behalf of the Application Provider;
(c) any interaction you have with a Third Party Provider via the Application;
(d) any failure by a Third Party Provider to provide you with any goods or services (or the quality or merchantability thereof) which are procured (whether directly or indirectly) via the Application; or
(e) your use of the Application in any way other than in accordance with this Agreement or as otherwise specified by the Application Provider.
12.5 The Application Provider’s liability arising out of or in connection with this Agreement or your access to or use of the Application (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which you or any other party contributed to the loss.
12.6 The cumulative liability of the Application Provider for any breach of any conditions or warranties in this Agreement, and your sole and exclusive remedy in relation to such breaches will be limited to in the case of the Application, at the Application Provider’s option:
(a) supplying the Application again; or
(b) paying the cost of having the Applications supplied again.
12.7 To the extent permitted by law, you will indemnify the Application Provider, its respective employees, agents and contractors (each an Indemnified Party) against any loss, damage or liability which any of them suffers or incurs as a result of a breach of this Agreement.
12.8 This clause 11 survives termination of this Agreement for any reason.
The Application Provider may suspend the Application or your access to the Application at any time, by providing you notice if:
(a) the Application Provider reasonably believes that you or your agents are in breach of this Agreement;
(b) any action taken or required to be taken in accordance with this Agreement contravenes or may contravene any law or code of conduct;
(c) such suspension would assist in achieving the Intended Purpose; or
(d) your User Account has not been used for a period of 6 months or more.
14.1 This Agreement and your User Account may be terminated by the Application Provider at its sole discretion by providing notice to you.
14.2 Without limiting clause 13.1, the Application Provider may terminate if your User Account has not been used for a period of 9 months.
14.3 You may terminate this Agreement by uninstalling and deleting all copies of the Application provided to you pursuant to this Agreement.
14.4 On termination of this Agreement for any reason:
(a) the Application Provider may invoice you for all services provided but not yet invoiced, and all unpaid moneys will immediately become due and payable;
(b) you will cease to have any rights to access the Application through your User Account;
(c) the Application Provider may, at its discretion, either delete or retain copies of any or all data (including any personal information) that you have provided to the Application Provider in connection with your User Account. Where the Application Provider retains copies of such data, the data will be the property of the Application Provider.
14.5 Termination of this Agreement is without prejudice to any other rights or remedies that a party may have under this Agreement or at law, and will not affect any accrued rights or liabilities of either party.
15. Electronic transactions and verification
15.1 You acknowledge and agree that any consent, agreement or authority that you provide via the Application may be made as an electronic transaction and, in those circumstances, such transaction will be binding on you.
15.2 Any communications between you and the Application Provider will be validly sent, received or served by being sent, to the email address you have provided the Application Provider or otherwise to the Application Provider's most recent known address for you (or contact details we have of the user as we may only have a mobile number ).
15.3 You are solely responsible for verifying the identity of any signatory to an electronic transaction to which you are a party.
16. General provisions
The Application Provider reserves the right to amend the terms and conditions of this Agreement from time to time. Amendments will be effective immediately upon notification on the Website. Your continued use of the Application following such notification will represent an agreement by you to be bound by the terms and conditions as amended.
16.2 Assignment & Subcontracting
You must not transfer any right or liability under this Agreement without the Application Provider’s prior written consent, except where this Agreement provides otherwise. The Application Provider may subcontract, novate or assign the provision of any services or any of its rights or obligations under this Agreement.
Failure, delay or neglect by a party to enforce a term of this Agreement is not to be construed as a waiver of that term or the party’s rights, or a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach.
16.4 Governing law
This Agreement and the licence granted under it, will be governed and construed in accordance with the laws of Victoria, Australia, regardless of the principles of conflict of laws thereof, and the parties submit to the exclusive jurisdiction of the Victorian courts over all disputes arising in connection with this Agreement.
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
17. Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Application means software and services provided by the Application Provider in connection with the delivery of the Thrivor web & mobile application accessible from:
(a) the Website; and
(b) mobile application marketplaces;
Application Provider means Thrivor Pty Ltd ACN 611 522 144;
Confidential Information means all information of or relating to the Application Provider, or any Related Corporation or its licensor (including the source and object code form subsisting in the Application);
(a) the Licence Fees; and
(b) the Services Fees.
GST and Tax Invoice have the meanings given to those terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intended Purpose has the meaning given to that term in clause 4.1;
Licence Fee means the licence subscription fee payable by Users for using the Application as a Patient, Primary Carer or Support Crew Member as amended from time to time published on the Application;
Medical Advice means any medical advice provided by a Medical Practitioner;
Medical Practitioner means a medical practitioner, doctor, physician, or other healthcare provider qualified to provide Medical Advice;
Patient means a User Account that registers to use the Application as a patient or their legal guardian or authorised agent;
Primary Carer means a person who has been authorised by a Patient to create, use or manage the Patient's interaction with the Application;
Related Corporation means a “related body corporate” as defined in the Corporations Act 2001 (Cth);
Services Fees means the fees charged by the Application Provider for services (other than the Licence Fees) as published on the Application from time to time;
Support Crew Member means any person (including a body corporate) who has been nominated by a Patient or a Primary Carer to assist or otherwise use the Application in connection with the Intended Purpose as determined by a Patient or Primary Carer;
Third Party Provider means a third party goods or service provider who has been engaged by a User via the Application;
User or you includes the following users of the Application:
(b) Primary Carer; or
(c) Support Crew Member;
User Account means the account referred to in clause 6 of this Agreement;
User Content means data uploaded onto a User Account; and
Website means the Application Provider website at http://www.thrivor.com