Application Terms of Use

This application and its related services, products, websites and tools (“Application”) is owned and operated by Breast Cancer Recovery Pty Ltd ACN 117 504 597 (“Breast Cancer Recovery”).

These Terms of Use, together will all other documents referred to in within these Terms of Use including the Privacy Policy and the Disclaimer (referred to together as the “Agreements”), govern your use of the Application. By signing up or otherwise using the Application you acknowledge and agree that you have read and understood the Agreements, accept the Agreements and agree to be bound by the Agreements. If you don’t agree to be bound by these Agreements, you must not use the Application. Please read these Terms of Use carefully before using the Application.

1. Definitions
   In these Terms of Use the following words and phrases shall have the following meanings, unless the context otherwise requires:
   • Account means a User’s online account to use the Application;
   • ACL means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
   • Applicable Laws means any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you are located or which in any way govern or affect the use of the Services;
   • Content includes written and visual content used in connection with the Services and on the Application including any material, text, pictures, sound, image, artwork, computer code, graphics, video and other data;
   • Disclaimer means the disclaimer made available on the Application and as amended from time to time;
   • Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, software, business and domain names, inventions and other results of intellectual activity related to or connected with the Application and Software;
   • our, us and we means Breast Cancer Recovery and its related entities and related bodies corporate (as defined in the Corporations Act 2001 (Cth)) and its officers, personnel, subsidiaries and affiliates;
   • Privacy Policy means the privacy policy made available on the Application and as amended from time to time;
   • Services means any services and products we provide to you, including but not limited to the provision of the Application and related functions and services;
   • Software means the software owned or licensed to us which forms part of the Application and includes any software which is required by, relevant to, or used in conjunction with the Application including but not limited to all object and source codes, copyright, inventions, discoveries, novel designs whether or not registrable as designs or patents, including any invention of or development or improvements to equipment, technology, methods or techniques relating to the software;
   • User means any person who uses the Application;
   • User Content means any content uploaded by the User to the Application;
   • you and your means a User.
2. Using the Application
   • The Application provides general health information and protocols and guidelines for Users with the purpose of optimising health outcomes and maximising the benefits of any treatments.
   • Your use of this Application is by personal, non-exclusive licence granted by us strictly in accordance with these Terms of Use.
   • The Application is available only to, and may only be used by, individuals who can form legally binding contracts under their applicable law. If you do not qualify, please do not use our services.
3. System Integrity & User Conduct
   • You must not use the Application to:
     • impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;
     • input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, pornographic, violent, abusive, insulting, threatening, harassing or misleading or deceptive;
     • input, upload, post, disclose or transmit any material which is subject to our Intellectual Property Rights or any third party or breaches any duty of confidence or contractual obligation owed to us or any third party;
     • input, upload, post, disclose or transmit any material that is unlawful or violates any law;
     • send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) to any person or company;
     • download and store electronically, reproduce, transmit, display, copy, distribute or use the Software or any materials contained in the Application;
     • upload any files that contain viruses, Trojan horses, worms, time bombs, corrupted files or any other similar software or programs that may damage the operation of the Application or another’s computer or property of another;
     • sub-license, rent, lease, transfer or attempt to assign the rights in the Application or the Software to any other person and any dealing in contravention of this sub-clause shall be ineffective;
     • falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Application;
     • conduct, display, or forward surveys, contests, pyramid schemes, or chain letters;
     • interfere with or disrupt the Application or servers or networks connected to the Application, or disobey any requirements, procedures, policies, or regulations of networks connected to the Application;
     • attempt to gain unauthorised access to the Application or computer systems or networks connected to the Application through any means;
     • commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
     • collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses; or
     • breach the Privacy Act 1988 (Cth) as amended, or the Australian Privacy Principles;
     • contravene or breach any applicable state, Commonwealth or international law, convention or regulation.
   • You acknowledge and agree that you must not:
     • use the Application for any purpose other than the purpose for which it was designed and intended;
     • commit or permit any act which may interfere with the use of the Application by any other user;
     • tamper with, hinder the operation of or make unauthorised modifications to the Application or any part thereof;
     • damage or modify the Software or the Application or any part thereof;
     • reverse engineer, decompile or disassemble the Software or the Application or any part thereof;
     • copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any content within the Application or any part thereof; or
     • modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Software or any content within the Application or any part thereof in any way.
4. Your Account
   • To access and use the Application, you may need to register with us and set up an Account with your email address and a password. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities that happen under your Account, even if you do not authorise such activities.
   • If we enable you to connect to the Application with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our Privacy Policy. You should contact us immediately if you believe your Account has been compromised or misused in any way.
   • When you notify us of your Account being accessed without your authority or your Account not being secure, we may restrict your use of the Services in our absolute discretion.
5. Intellectual Property Rights
   • The Content, the Software and the Application are protected by Intellectual Property Rights. You acknowledge that we are the owner of these rights, with our affiliates or other third party licensors.
   • You acknowledge and agree that no right, title or interest in any of the Intellectual Property Rights in the Content, the Software or the Application is transferred or granted to you, other than the rights granted expressly by these Terms of Use.
   • You agree that:
     • any Intellectual Property Rights created, formulated or discovered by you through the use or access to the Software or the Application will be our sole and exclusive property;
     • you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual Property Rights created under to us;
     • when you provide us with User Content (including reviews and testimonials) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, modify, adapt and communicate it in connection with the Services;
     • you warrant that any User Content you provide us with will not infringe any intellectual property rights or other rights of any third party nor give rise to any liability; and
     • we are not liable or responsible for any loss that you may experience in submitting User Content to us or for our use of your User Content in accordance with the licence granted.
6. Fees
   • You agree to pay us a one-off fee in accordance with the current pricing as stated on the Application or app store provider at the time the Application is purchased. You must make payment of the fee via a method accepted by us as stated on the Application or app store provider from time to time.
   • We reserve the right, in our sole discretion, to modify or terminate any fees, services, or charges on the Application at any time and without prior notice.
   • You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
7. User Content
   • The Application allows Users to enter User Content for various purposes including to record and track the User’s experiences, exercises, symptoms and nutrition while on their recovery journey.
   • The following applies to any User Content that you provide to us:
     • you authorise us to use, store or otherwise process any information including personal information and sensitive information which relates to and/or identifies you (‘the Personal Information’), in accordance with our Privacy Policy;
     • you acknowledge and authorise any User Content to be de-identified in order to create research data and for the purposes of generating statistical data for the conducting of cancer research and improving the Application;
     • you must ensure that the Personal Information you provide to us and that all registration details (where applicable) contain correct and truthful details; and
     • we will not use, store or otherwise process any information unless it is fully compliant with applicable privacy laws.
   • If you would like to review or modify any part of your Personal Information then you should contact us.
   • For further information as to how we deal with your Personal Information, please see our Privacy Policy.
8. Disclaimer
   • The Disclaimer available on the Application applies to your use of the Application, and its terms are incorporated into these Terms of Use by this reference.
9. Limitation of liability
   • To the maximum extent permitted by law, we and any related entities (as that term is defined in section 9 of the Corporations Act 2001 (Cth)), officers, directors, agents, employees, contractors and suppliers will not be liable for any direct or indirect loss, damage, cost or expense of any kind suffered by you or any other person arising in connection with:
     • your use of the Services;
     • your reliance or acting on the Content provided in or omitted from the Application or any other written or oral opinions, advice or information provided;
     • the availability of the Services.
   • The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
   • You expressly understand and agree that we will not be liable to you for:
     • any direct, indirect, incidental, special, consequential or exemplary damages that may be incurred by you, howsoever caused and under any theory of liability including but not limited to loss of profit, loss of goodwill or business reputation, loss of data, costs of procurement of substitute goods or services, or other intangible losses;
     • any reliance placed by you on the completeness, accuracy or existence of any Content, including but not limited to advertising or as a result of any relationship or transaction between you and any third party who is in any way associated or appears on the Application or on the Services;
     • any changes that we make to the Services or any permanent or temporary cessation of the provision of the Services or any features thereof;
     • the deletion of, corruption of, or failure to store any User Content and/or Content and other communications or data maintained or transmitted by or through your use of the Application or the Services;
     • your failure to provide us with accurate account information or your failure to maintain your account or secure your account details including but not limited to your password, and you agree that this is a proper allocation of risk in the circumstances and will apply whether you have advised us or we should have been aware of the possibility of any such loss or damages.
   • Subject to the other terms of this clause and to the extent permitted by Applicable Laws, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with these Terms of Use, including any breach by us of these Terms of Use however arising, is limited to the actual charges paid by you to us under these Terms of Use in the 1-month period preceding the matter or event giving rise to the claim.
   • Nothing in these Terms of Use is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
   • If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the services or the payment of the cost of resupply.
   • This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Use or your use of our Services
10. Indemnity
    • You agree to indemnify and hold us and our related entities (as that term is defined in section 9 of the Corporations Act 2001 (Cth)), officers, directors, agents, employees, contractors and suppliers harmless from and against any actions, claims, demands, proceedings, loss of every kind and nature, known and unknown, including legal fees (on a solicitor and own client basis) and claims made by third parties, due to or arising out of:
      • your use of the Application or your violation of any Applicable Laws or the rights of a third party; and/or
      • our acts or omissions in respect of the Application; and/or
      • your breach of these Terms of Use.
11. Breach and Termination
    • If we reasonably consider that you are using the Application in breach of these Terms of Use, we reserve the right to remove any infringing data, file, content or material from the Application and we shall have no liability to you.
    • We reserve the right to deny you access to, or use of, all or part of the Application, without prior notice, if you engage in any conduct that we believe, in our sole discretion:
      • violates any term or provision of these Terms of Use or any other terms or policies of ours in place from time to time; or
      • violates our rights or any third party; or
      • is otherwise inappropriate for continued access and use of the Application.
    • We may terminate your right to access to, or use of, all or part of the Application, immediately on written notice to you if you:
      • commit a material breach of these Terms of Use, which is capable of remedy, and you fail to remedy the breach within a reasonable time of a written notice to do so; or
      • commit a material breach of these Terms of Use which cannot be remedied; or
      • are repeatedly in breach of these Terms of Use; or
      • are the subject of a bankruptcy order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of your creditors, or if you go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.
    • On termination or expiry of these Terms of Use your right to use the Application shall cease.
    • Termination of your access to the Application shall be without prejudice to the rights of the parties accrued before termination. All restrictions imposed on you, disclaimers and limitations of liability set out in these Terms of Use will survive termination.
12. Third party rights
    • You must comply with applicable third party terms of agreement when using the
      Application.
    • You acknowledge and agree that certain providers (including app store providers such as Apple and Google) are third party beneficiaries of these Terms of Use and they will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.
    • If you have downloaded the Application from the Apple, Inc. (“Apple”) App Store, you acknowledge and agree that:
      • These Terms of Use is strictly between you and us, and not with Apple;
      • We are solely responsible for the Application and the content thereof;
      • The licence granted to you for the Application is limited to a non-transferable licence to use the Application on any Apple-branded Products that you own or control and as permitted by the App Store Terms of Service;
      • We are solely responsible for providing any maintenance and support services with respect to the Application as required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
      • We are solely responsible for providing any product warranties, whether express or implied by law. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is our responsibility;
      • We, and not Apple, are responsible for addressing any claims of yours or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application’s use of the HealthKit and HomeKit frameworks;
      • In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; and
      • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Changes to these Terms of Use
    • We may, in our discretion, update these Terms of Use from time to time. Where we make a material change to the Application we will provide you with notice as we consider appropriate in the circumstances. It is your responsibility to check the Application periodically for changes. Your continued use of the Application following the posting of any such notice constitutes acceptance by you of any of those changes.
14. General
    • Accessing information from the Application is done at your own risk and you will be responsible for compliance with the laws applicable within your jurisdiction.
    • These Terms of Use are governed by the laws of South Australia and the parties submit to the jurisdiction of the Courts of South Australia and relevant Commonwealth courts competent to hear appeals from them.
    • We shall not be liable by reason of the failure in the performance of obligations under these Terms of Use by reason of strikes, riots, fire, explosion, acts of God, governmental action, or any other cause which is beyond our reasonable control, including any form of technological failure or the actions of third parties.
    • These Terms of Use constitute the entire agreement between you and us with respect to this Application, and these Terms of Use replace all prior or contemporaneous understandings or agreements, written or oral, regarding the Application.
    • If any provision of these Terms of Use is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible and will be deemed deleted to the extent that it is not enforceable, and the remaining provisions of these Terms of Use shall remain in full force and effect.
    • We operate the Application in Australia. Information contained on the Application may not be appropriate or available for use in other locations. If you access the Application from other locations, you do so at your own initiative and you are solely responsible for compliance with local laws.
    • These Terms of Use shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
    • The rights and remedies of a party to these Terms of Use are in addition to the rights or remedies conferred on the party at law or in equity.
    • The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.