Helfie provides its customers with access to a mobile application and related platforms through which users can photograph their moles, freckles, or other skin legions and have this information assessed by a medical professional who will provide relevant diagnoses, information and advice (our “services” and “products”).
What information do we collect?
We collect and hold Your Information, which may include your name, phone number, email, mailing address, medical history, age, gender, current medications, preferences and interests, employment history (of job applicants) and other information relevant to the supply of our products and services that is collected by our products or that you choose to provide to us. If you purchase products from us, we may also collect your bank or credit card details for payment and details of your credit history and creditworthiness.
Some of Your Information may also be considered “sensitive information” (SI) as defined under Australian Privacy Laws, such as your “health information” (which includes information about your physical health, medical history and current medications), and other personal information collected for the purpose of providing you with a health service (e.g. assessing or improving your health, or treating an illness).
How we collect Your Information
We collect Your Information as part of us providing and offering our services and products. This includes when you provide Your Information to us in person, via our products (including our Helfie mobile application and our website), during phone and skype calls, by email, via social media, during our recruitment processes, or otherwise via customer enquiries or communications.
Generally, we collect Your Information directly from you but we may also collect Your Information from other people or organisations if you have given your consent. To the extent that any additional obligations arising under the Australian Privacy Laws apply to our collection of your SI, we also comply with those obligations and will only collect health information from you directly unless it is not reasonable or practical do so.
Why do we need Your Information?
We only collect or hold Your Information where it is reasonably necessary for our business functions or activities.
In particular, we need Your Information to provide you with our products and/or services, which includes procuring medical assessments and treatment management advice, internal record keeping, communicating with you about our products and/or services, creating and updating our database(s) and other records, ensuring compliance with our contractual and other legal obligations to you, and administering our relationship with you by responding to your enquiries (Main Purposes).
If you do not provide us with Your Information we may not be able to carry out some or all of the Main Purposes.
How do we use or disclose Your Information?
By submitting Your Information to us, you consent to us using or disclosing Your Information for:
(a) the Main Purposes;
(b) any purpose related to the Main Purposes that could be reasonably anticipated at the time
Your Information was collected (Secondary Purpose);
(c) any purpose to which you otherwise consent (including as disclosed to you in an information collection statement at the point where we collect Your Information); and
(d) any other purpose required or authorised by law (including the Australian Privacy Laws).
Secondary Purposes may include: improving our products or services; sending you direct marketing about our products or services, deals and promotions; conducting customer surveys; managing our relationship with you; monitoring how you interact with us on our website or other contact points; or helping you to complete an activity that you have chosen to undertake.
We may use certain non-personally identifiable information (such as anonymous usage data, IP addresses, browser or platform type etc.) to improve the quality and design of our products and services, and to create new features, promotions, functionality and services by storing, tracking, analysing and processing user preferences and trends as well as user activity and communications.
To the extent that our obligations under the Australian Privacy Laws in relation to our use of your SI vary from our obligations with respect to use of Your Information that is not SI, we will comply with the obligations applicable to SI.
Can you remain anonymous or use a pseudonym?
We will, if practicable, allow you to use a pseudonym or to not identify yourself (unless this is impractical or against the law (including the Australian Privacy Laws)).
In some instances, if you do not provide us with some of Your Information we may not be able to provide you with the relevant product, service or information. This may have an effect on whether we can begin or continue a relationship with you.
Do we disclose Your Information overseas?
We may disclose Your Information to our partners, suppliers and distributors in order to assist us in providing our products or services to you. Some of our service providers, or the services they provide (like cloud storage services), may be based outside Australia. In order to protect Your Information, we take care where possible to work with service providers who we consider maintain acceptable standards of data security compliance, and we do our part to meet those standards as they apply to us. By providing us with Your Information, you consent to Your Information being used, stored and disclosed overseas (and acknowledge that no additional obligations that may apply to the overseas disclosure of personal information under Australian Privacy Laws will apply).
Is Your Information confidential and secure?
We take all reasonable steps to keep Your Information secure and to ensure it is protected against misuse, loss, unauthorised access, modification or inappropriate disclosure. We may hold Your Information in both hard copy and electronic forms, but will store it in secure systems accessible only to authorised personnel.
Using other sites
Managing Your Information
You are responsible for ensuring that Your Information is accurate, current and complete and we encourage you to contact us to update Your Information if it changes.
You may ask us to access Your Information in accordance with Australian Privacy Laws (as applicable), including by asking us to provide you with a summary of Your Information that we hold, subject to certain limitations under the Australian Privacy Laws.
For your protection, we may require you to confirm your identity before access to Your Information is granted.
In most cases, we can provide you with a summary of Your Information free of charge. However, in some circumstances, reasonable costs may be charged to you in accessing Your Information in accordance with and subject to the Australian Privacy Laws, including any costs limitations contained in applicable Australian Privacy Laws.
Our User Terms and Conditions
The use of the “Helfie” application, and the software, information, intellectual property and services comprising that application (“Application”), which is owned or licensed by Helfie Pty Ltd (ACN 620 428 622) (“Licensor”) is governed by the terms and conditions set out below (“Agreement”). Without limiting the ways in which you may be bound by this Agreement, by clicking “Subscribe” or “I accept the terms of this Licence Agreement” (or similar wording), by signing a document in which you expressly agree to be bound by this Agreement or by using any similar mechanism indicating your acceptance of this Agreement, or otherwise by installing and using the Application, you (“User”) will be deemed to have accepted and will be bound by the terms and conditions of this Agreement (including as amended from time to time).
You must be over 18 years of age to use the Application. By entering into this Agreement, you warrant and represent to the Licensor that you are over 18 years of age.
1. PROVISION OF THE APPLICATION
1.1 The Licensor provides the User (or Primary User, as described below) with access to the Application pursuant to the terms of the Licence (as defined in clause 2.1) and this Agreement. The purpose of the Application is to allow Users to use their mobile phone, tablet or other device (subject to functionality permitted by the Application) to capture certain diagnostic information and other User Data (as defined in clause 7.1). That User Data may then be submitted by the User to Health Services Providers (as defined in clause 4.1) for those Health Services Providers to provide a Diagnosis (as defined in clause 4.1) to the User (as further described below).
1.2 The Licensor may also provide the Application to a Primary User (as defined in clause 2.1), for the Primary User to permit its Related Parties (as defined in clause 2.1) to use. If the Application is to be provided in this capacity, then this provision will be governed by both:
(a) the terms of this Agreement; and
(b) the terms of a separate agreement (“Primary User Agreement”) which will set out the number and type of Related Parties to whom a Licence may be granted, together with the type of Licence granted, as well as any additional terms separately agreed between the parties. If there is any inconsistency between this Agreement and the Primary User Agreement, then the terms of the Primary User Agreement shall prevail to the extent of the inconsistency.
2.1 In consideration for the payment of any licence or subscription fees specified by the Licensor (if any), the Licensor grants to the User a non-exclusive, non-transferable, revocable licence (“Licence”) to: (a) use the Application; and (b) where the user person paying the applicable fees is a company or organization (“Primary User”), to allow the Primary User to permit its representatives, agents, officers, directors, employees, and contractors (“Related Parties”) to use the Application (as Users) subject to the terms of this Agreement within the period of the Licence agreed between the Licensor and the User (“Subscription Period”).
2.2 Notwithstanding clause 2.1, the Licensor may refuse to grant a Licence to any person, for any reason whatsoever in its sole discretion.
2.3 A Primary User may only sublicense or authorise its Related Parties to use the Application on the condition that they also agree to be personally bound by this Agreement (and will be deemed “Users”), and subject to any limitation on the number of sublicenses (and to payment of any applicable fees) as agreed between the Primary User and the Licensor under the Primary User Agreement. A User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of the Licensor. The Primary User and the Related Party will be jointly and severally liable for any breach by the Related Party of this Agreement. For the avoidance of doubt, the Primary User will also be deemed to be a User under this Agreement.
2.4 The Subscription Period may, subject to clause 5, at the Licensor's discretion be:
(a) an ongoing or continuously renewing period in which fees may be applicable only to specific transactions made by a User within the Application within that period (“Ongoing Licence”);
(b) limited to a specific period of time, which may or may not be capable of renewal (“Subscription Licence”); or
(c) limited to an evaluation period, and/or limited in functionality during that period, which is not capable of being renewed on the same terms (“Evaluation Licence”).
2.5 Unless otherwise specified by the Licensor, or agreed between the parties, the Licence granted will by default be an Evaluation Licence. The Evaluation Licence may be converted to an Ongoing Licence or a Subscription Licence, as further described in clause 3.
2.6 If the Application is provided on an Ongoing Licence or Subscription Licence basis, the Licence will continue for such time as the User continues to pay all applicable licence or subscription fees to the Licensor (or until the set period for which fees have been paid expires), unless terminated earlier pursuant to clause 5. If the Application is provided on an Evaluation Licence basis, clause 3 will apply.
2.7 The Licensor may restrict the functionality of the Application, or the User’s access to parts of the Applicationbased on the subscription level, licence type, and fees payable under any Subscription Licence or Ongoing Licence.
2.8 The User (or Primary User, as the case may be) must pay any licence or subscription fees in the amount and manner agreed between the parties in respect of the Licence. The User or Primary User must provide the Licensor, where applicable, with all necessary information to enable the Licensor to take such payment, and ensure that such information is current and correct at all times.
2.9 The Licensor may change the fees payable in respect of use of the Application at any time on notice to a User, and those fees will apply to any subsequent transaction (for Ongoing Licences) or Subscription Period (for Subscription Licences). If the User does not accept the change in fees, that User must cease using the Application before those fees become effective.
3. EVALUATION LICENCE
3.1 If the Application is provided on an Evaluation Licence basis, this Licence commences on the date that the Evaluation Licence is granted (or such other date as agreed between the parties). The Evaluation Licence will either expire at the end of the evaluation period as specified by the Licensor, or if no such period is specified, then expire upon the Licensor disabling the Application’s functionality or the User’s access to the Application (“Evaluation Term”).
3.2 The Licensor may at its discretion, limit the functionality of the Application and/or restrict access to certain functionality of the Application during the Evaluation Term.
3.3 The User may purchase a Subscription Licence for the Application and unlock its full functionality at any time by contacting the Licensor via the purchase functionality contained in the Application (if applicable). Upon expiry of the Evaluation Term, the Licensor may offer the User the option to purchase a Subscription Licence of the Application, subject to payment of all applicable fees specified by the Licensor.
3.4 The User may at any time also purchase an Ongoing Licence, by payment of transaction specific fees. That Ongoing Licence will, on its termination, revert back to an Evaluation Licence. Subsequent Ongoing Licences may then be purchased by the User in accordance with this clause and clause 2.4(a).
3.5 A Licence granted on an Evaluation Licence Basis terminates automatically without further notice from the Licensor upon the expiration of the Evaluation Term, unless the User elects to purchase a Subscription Licence of the Application pursuant to clause 3.3. Upon expiry or termination of the Evaluation Licence the User must, without limitation, comply with its obligations under clause 5.5.
4.1 The User may use the Application to procure health services from a third-party provider (“Health Services Provider”) who may analyse the User Data provided via the Application to the Health Services Provider, and who will then provide the User with a report or diagnosis (“Diagnosis”). Those services are provided by the Health Services Provider directly, and not by the Licensor. The Licensor’s services are limited to facilitating communication between the User and the Health Services Provider, including transmitting the User Data, and facilitating payment as appropriate (“Facilitation Services”).
4.2 The User acknowledges that:
(a) each Health Services Provider provides its Diagnosis on the basis of the User Data submitted by the User via the Application;
(b) the User Data, as submitted, may not be all of the information which the Health Services Provider requires to make an accurate Diagnosis; and
(c) the User should still consult a medical practitioner in person in relation to obtaining a full diagnosis of his or her actual or potential health or medical condition.
4.3 The Licensor does not hold any medical or other practicing certificate or authorization in any jurisdiction. The Licensor warrants, however, that it requires all Health Services Providers with whom a User may be connected to have appropriate medical certification or authorization in the jurisdiction in which the Health Services Provider operates or resides.
4.4 Other than as expressly provided in this Agreement, the Licensor does not accept any responsibility, and disclaims all and any liability for, any dispute between a User and a Health Services Provider in connection with the Application or any related supply of services.
5. SUSPENSION & TERMINATION
5.1 This Agreement will apply for the duration of each and every relevant Subscription Period.
5.2 This Agreement and the Licence and the User’s rights granted under this Agreement may be terminated or suspended at any time by the Licensor immediately on the provision of written notice to the User if:
(a) the User is in breach of this Agreement or a Third Party Licence (as that term is defined in clause 11.1);
(b) the User becomes insolvent, bankrupt, is wound up, or has an administrator, liquidator or receiver appointed over it or its assets; or
(c) another agreement between the User and the Licensor permits the Licensor to terminate this Agreement.
5.3 Suspension of the User’s Licence may result in either the Licensor completely disabling the User’s use of the Application and/or disabling certain functionality which would only be accessible to the User, if their Licence had not been suspended.
5.4 If a Licence is suspended in whole or in part under clause 5.2, the Licensor may, at its sole election:
(a) end that suspension if and when the relevant breach is cured; or
(b) provide notice of termination at any time if the breach has not been remedied, or alternatively disable the use of the Application,
and the User agrees that the Licensor will not incur any liability in respect of the failure to supply access to the Application (or allow the User to exercise any other rights in respect of the Application) during any period in which the Licence is suspended.
5.5 Upon the termination of this Agreement:
(a) the Licensor may disable the User’s use of the Application and/or disable certain functionality which is only available to Users with a Licence;
(b) the User will be obligated to immediately pay any fees owing to the Licensor in respect of transactions completed, services performed, or the remainder of any applicable Subscription Period;
(c) the User will, and will procure that any Related Party will, immediately cease using the Application;
(d) the User will delete or destroy, or where specified by the Licensor, return to the Licensor, any intellectual property or confidential information of the Licensor which may be in the possession or control of the User;
(e) any licence keys, passwords, or access rights to the Application provided to the User will be immediately deactivated and destroyed by the Licensor; and
(f) nothing herein shall be construed to release either party from any obligation that arose prior to the effective date of such termination.
5.6 If the Licence is terminated, the User may not use the Application, or any services provided by the Application, without obtaining a new Licence from the Licensor. The Licensor may in its sole discretion refuse to grant a Licence to the User.
5.7 Clauses 6, 9, 10, 11, 13 and 14 of this Agreement will survive the termination of this Agreement.
6. CONFIDENTIALITY & PRIVACY
6.1 The Licensor will keep confidential all information provided by or on behalf of a User that is marked as confidential or should otherwise reasonably be presumed to be confidential, and will only use or disclose such confidential information: (a) for the purpose of providing or procuring services under this Agreement; (b) with the consent of the User; (c) in anonymized and aggregated form; or (d) as may otherwise be required or permitted by law.
6.4 The User undertakes and continuously warrants to the Licensor that:
(a) where the User is an individual, the User will only supply Personal Information:
(i) in respect of that User and (subject to subclause (a)(ii)) no other individual; or
(ii) in respect of a person under the age of 18 (“Minor”) – where the User is a parent or legal guardian of that Minor;
(b) where the User is a Primary User:
(i) any Personal Information supplied to the Licensor in connection with this Agreement has been collected, used, stored, and disclosed by the User (or any other person by its authority) in compliance with all applicable laws and with the consent of any individual to whom the Personal Information relates;
(ii) the individual to whom the Personal Information relates has been made aware of the Licensor’s identity, of how to contact the Licensor, of the nature of the Licensor’s role in the supply of the Application and Facilitation Services, and of all other matters of which the Licensor has expressly required that the person be informed, or of which that the Licensor or User is required to inform a person about whom it collects Personal Information under applicable law and in accordance with best practice; and
(iii) the Primary User acknowledges that the Licensor is authorised, either by consent of the individual or by law, to collect the Personal Information from the User and to use the Personal Information for the supply of the Application and Facilitation Services and as contemplated by this Agreement.
6.5 In respect of any User Data (including Personal Information) that a User submits in respect of a Minor, the User agrees, warrants, and represents that:
(a) the User will only submit or upload such User Data via the Application in accordance with this Agreement and where the User is the parent or legal guardian of the relevant Minor;
(b) the User irrevocably consents on behalf of that Minor, and in its own capacity as a User, to the Licensor:
(ii) dealing with such User Data in any way in which it is permitted to deal with User Data by law, and otherwise dealing with User Data in respect of a Minor in the same way as it deals with User Data in respect of any other person; and
(c) such User Data is not in any way unlawful, indecent, or likely to offend, injure or harm any person or breach any applicable law and that the Licensor’s use, storage, and disclosure of that User Data as contemplated by this Agreement will not breach any applicable law (including, without limitation, any law in respect of child pornography or child abuse material).
7.1 The User acknowledges and agrees that in using the Application, including by uploading or creating any data, images, information, material, or intellectual property (“User Data”) via the Application, that:
(a) User Data will be transmitted over the internet any other network used by the Application, which may include transmission to servers located in other states or countries;
(b) while the Licensor will take all reasonable security precautions, the transmission, upload, download, or storage of User Data via the Application is not guaranteed to be, and may not be, secure;
(c) transmitting, uploading, or downloading User Data via the Application may render the User’s systems vulnerable to viruses, malware, or other forms of attack that are beyond the reasonable control of the Licensor; and
(d) the User is at all times responsible for the security of its own systems, and the security of the User Data.
7.2 The Licensor will comply with any laws requiring the Licensor to notify the user or any other person regarding any notifiable data breach. Otherwise, to the maximum extent permitted by law, the Licensor will not be liable or responsible for protecting the security of User Data transmitted, uploaded, or downloaded via the Application, or for any loss, cost, expense or damage suffered by the User as a result of any unauthorised access or use of the User Data or the Licensor’s systems.
8. UPDATES, UPGRADES AND SUPPORT
8.1 Subject to clause 8.2, the Licensor is under no obligation to provide updates, upgrades or new releases for the Application (“Upgrades”) or Application maintenance and support for the Application (“Support”).
8.2 The Licensor will only provide Upgrades and Support to the User if the User has purchased the right to receive Upgrades and Support from the Licensor, which may include, without limitation, via the purchase of a Subscription Licence. If the User does purchase Upgrades and/or Support from the Licensor, then the terms of providing those Upgrades and Support will be separately specified by the Licensor or its resellers at the time of purchase.
8.3 This Agreement will, unless specified by the Licensor to the contrary in writing, apply to all Upgrades supplied by the Licensor to the User (and a reference to the “Application” will be deemed to include a reference to each Upgrade which the Licensor supplies to the User).
9. WARRANTIES & LIABILITY
9.1 The User must not, and must not permit its Related Parties to, use the Application in any way that might defame, offend, insult, embarrass, injure, damage, or otherwise breach the rights of any person or contravene any applicable laws (including, without limitation, any laws in relation to child pornography or child abuse material).
9.2 The User acknowledges that:
(a) the Licensor makes no warranties that the Application is error free, that the Application will be accessible on the User’s systems, or that the User’s access to the Application will be uninterrupted; and
(b) the Licensor has not made and will not make any other express or implied warranties in relation to the Application, the Facilitation Services or any other goods or services provided by the Licensor or any third party in connection with the Application or Facilitation Services, other than those warranties expressly contained in this Agreement. Any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded to the maximum extent permitted by law.
9.3 The User acknowledges and agrees that:
(a) the Licensor’s sole role in relation to the introduction of the User to a Health Services Provider, and the Diagnosis from the Health Services Provider, is to provide the User with the Facilitation Services only; and
(b) the Licensor has no liability or responsibility for any act, omission or negligence of a Health Services Provider, including, without limitation, any Diagnosis given by the Health Services Provider to the User.
9.4 The Licensor provides the Application “as is” and, to the maximum extent permitted by law, the Licensor will not be liable in respect of any loss, damage, expense, cost or claim by or against the User or its Related Parties (whether contractual, tortious, statutory or otherwise) for any direct or indirect, special, incidental, or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Application or Facilitation Services or the provision of any other goods or services under this Agreement, and whether as a result of any negligence, breach or default, by the Licensor.
9.5 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and prohibits the exclusion of certain liability but permits the limitation of that liability, then that liability of the Licensor is limited, at the option of the Licensor, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
9.6 The maximum liability of the Licensor under this Agreement for any matter which cannot otherwise be excluded as described in this Agreement, will be limited in aggregate (to the maximum extent permitted by law) to the lesser of:
(a) the total licence and/or subscription fee paid for the Application by the User; or
(b) AUD $10.
9.7 The User indemnifies the Licensor, its agents, officers and employees against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which is suffered or incurred by the Licensor, its agents, officers or employees as a direct or indirect result of:
(a) any breach of this Agreement by the User or its Related Parties; or
(b) any third-party action, claim, demand or proceedings instituted against the Licensor as a result of the use of the Application by the User or its Related Parties.
9.8 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Licensor will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the User’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
10. INTELLECTUAL PROPERTY
10.1 Nothing in this Agreement affects the ownership of any intellectual property or associated rights owned or licensed by any person prior to the grant of any Licence hereunder.
10.2 The Licensor retains ownership of the Application and all intellectual property, including any rights in copyright, moral rights, inventions (including patents), trademarks, designs, circuit layouts (whether or not registered or registrable), which subsist in the Application, including any data, material, or information created by or on behalf the Licensor and displayed or made available via the Application (“Licensor IP”) at all times. Apart from the Licence granted herein, all such rights are reserved by the Licensor.
10.3 The User owns any User Data which it uploads to or creates using the Application, save to the extent that the User Data incorporates or consists of Licensor IP. The User grants (or will procure the grant of) to the Licensor a perpetual, irrevocable, transferrable, royalty-free, world-wide licence (with right of sublicense) to use, edit, modify, transform, transmit, broadcast, and disclose the User Data for the purpose of providing the User or its Related Parties with access to the Application and any goods or services supplied in connection with the Application, including any necessary consent or waiver to such use (even where a relevant action or omission by the Licensor would otherwise constitute an infringement of a person's rights of attribution or integrity, or against false attribution). To the extent that this clause 10.3 is inconsistent with the terms of any other express written agreement between the Licensor and a User or Primary User in respect of the User Data, the terms of that other agreement will apply.
10.4 Except to the extent permissible under the Copyright Act 1968 (Cth), and to the extent strictly necessary to access and use the Application, it is a condition of the Licence that the User must not attempt to copy, reproduce, modify, transform, decompile, reverse-engineer, introduce malicious viruses, software or code, or otherwise interfere with the function of the Application (or any source code or programming comprising the Application).
10.5 The User represents and warrants to the Licensor that:
(a) the User has (or will procure) all necessary right, authority and capacity to enter-into, execute, and perform its obligations under this Agreement (including the grant of licence to the Licensor); and
(b) the Licensor’s exercise of its rights to the User Data will not infringe the intellectual property rights or moral rights of any person.
10.6 The User continuously releases and indemnifies the Licensor for and against any loss, cost (including legal costs on a full indemnity basis), damage, claim (including for negligence), or expense suffered or incurred by the Licensor and arising in connection with a claim that the User Data, or the Licensor's use of the User Data, infringes any person's rights (including, but not limited to, intellectual property or moral rights) or defames, injures, harms, or offends any person.
11. COMPLIANCE WITH THIRD PARTY LICENCES
11.1 The Application may incorporate components licensed to the Licensor by third parties, which may be subject to their own End User Licence Agreements (“Third Party Licences”).
11.2 The User agrees that the use of the Application, in addition to this Agreement, will be governed by any terms and conditions specified by any Third Party Licence that applies to the Application, including but not limited to those appended to this Agreement or separately notified to the User or Primary User.
11.3 The User agrees to be bound by and observe all terms and conditions of any Third Party Licence and acknowledges that any breach of a Third Party Licence will entitle the Licensor to terminate the Licence and exercise its rights under clause 5.
12. AMENDING THIS AGREEMENT
12.1 The Licensor may amend any of the terms of this Agreement by providing written notice to the User of such amendments and/or displaying such amendments or an amended copy of this Agreement to the User during its use of the Application. Without limiting the methods by which the User may accept such amended terms, the User acknowledges and agrees that its ongoing use of the Application after it is made aware of any amended terms to this Agreement will constitute its acceptance of such amended terms.
12.2 If the User does not agree to any amendments made by the Licensor to the terms of this Agreement, then the User must immediately cease any further use of the Application, and notify the Licensor in writing of its intention to terminate the Licence. In such circumstances, the User may be eligible for a refund or partial refund of any licence or subscription fee paid to the Licensor in respect of the Application (subject to any conditions which the Licensor may put in place in respect of paying such a refund).
13.1 A User must not commence court proceedings in relation to a complaint or dispute with the Licensor in connection with the Application (“Complaint”) until it has exhausted the procedures in this clause 13.1. If a Complaint arises:
(a) the User must first notify the Licensor of the nature of the complaint or dispute in writing via the contact details listed on the Licensor’s website;
(b) the Licensor will, to the extent reasonably possible, consider and respond to the User’s notice of Complaint within a reasonable period of time;
(c) the User must respond to any communication from the Licensor in respect of the Complaint as soon as possible, including providing any additional information or material that may be reasonably required by the Licensor;
(d) the User and the Licensor will use best efforts to resolve the Complaint in a timely manner; and
(e) if the Complaint is not resolved within 90 days of the Licensor first receiving notice of the Complaint, the Licensor may instruct the President of the Law Institute of Victoria to appoint an independent mediator to resolve the dispute by mediation and the parties must participate in the mediation in good faith and equally share the costs of the mediation.
13.2 Nothing in this clause 13 will prevent the Licensor or User seeking urgent or injunctive relief from a Court in relation to a matter arising under this Agreement.
14.1 In the interpretation of this Agreement, unless the contrary intention appears:
(a) a reference to this Agreement means a reference to an agreement between the Licensor and the User on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
(b) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
(c) the singular includes the plural and vice versa;
(d) a reference to any gender includes a reference to all other genders;
(e) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
(f) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
(g) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
(h) headings are inserted for convenience only and do not affect the interpretation of this Agreement.
14.2 In the case of a Primary User, unless otherwise requested in writing by the Primary User, the Licensor may use the Primary User’s corporate identity (if applicable) as part of promoting the Application in the market place.
14.3 This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement (save for any written agreement concerning the supply and/or license of information or intellectual property to the Licensor which is expressed to override this Agreement) and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement. The terms of this Agreement may only be varied by the Licensor as provided in this Agreement, or by subsequent written agreement the parties.
14.4 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
14.5 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
14.6 The Licensor may assign, novate or otherwise transfer its rights and obligations that arise under this Agreement. The User may not assign its rights or obligations that arise under this Agreement without the prior written consent of the Licensor (which may be withheld).
14.7 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
14.8 Nothing in this agreement creates a relationship of employment, joint venture, partnership, or agent or fiduciary and principal between the parties.
14.9 This Agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia.