1. BACKGROUND
1.1. Here at Bearmore Pty Ltd (ACN 675 835 935) (or, for short, Bearmore, we, us or our), provides a website, web tools and a mobile application (via the Apple App Store and Google Play Store) (App).
1.2. The App provides users access to educational and instructional material relating to health and wellbeing.
1.3. The following terms set out the rights and obligations that together we agree will apply to your usage of the App. By downloading, installing, and using the App from the Apple App Store or Google Play Store, you agree to these terms and the respective app store’s terms of service, so please make sure you have read and understood both these terms and the relevant app store’s terms before using the App.
1.4. There may also be additional terms that apply between us (for example, our Privacy policy accessible at https://www.bearmore.com/privacy-policy).
2. SERVICES WE WILL PROVIDE TO YOU
2.1. We will provide access to our App to you when you install the App and sign up with an account. Some of our services may be subject to limitations (e.g. premium or paid features) or other conditions which we will draw to your attention.
2.2. We may conduct periodic reviews of the provision of our services via the App to assess the ongoing suitability, to seek expansions and improvements in our offering and to resolve any issues that may arise. This may result in the amendment, addition or removal of terms from time to time, but we will provide you with reasonable notice of any changes in advance.
2.3. When you create an account to use our App and accept these terms, you become a user. If you are a user, responsibility for paying for any applicable fees lies with you.
3. THINGS WE NEED FROM YOU
3.1. From time to time, we may require specific information and assistance from you to be able to continue providing you with access to the App. You agree to provide all such information and assistance reasonably requested by us from time to time.
3.2. We may need you to keep your information (including contact details) valid and up to date. We will rely on you to provide true, accurate and complete information to verify the accuracy of any information that you use from the App for any reason. You are also responsible for protecting your username and password from getting stolen or misused.
3.3. You must comply with all app store policies, including those related to app content, user reviews, and ratings. Further, you must not misuse the App, including by undermining the security or integrity of our systems or networks; access without authorisation; modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of our App and/or services; or resell, lease or provide our services in any way not expressly permitted.
4. UPDATES AND OTHER MODIFICATIONS
4.1. We are always looking for ways to improve our software which means that new updates, modifications and enhancements happen from time to time. Updates, modifications, and enhancements will be provided through the app store. Users are required to keep their App updated to the latest version available to ensure optimal functionality and user experience.
5. THE NATURE OF SOFTWARE
5.1. Whilst we implement protective measures, we cannot guarantee the security of our services or that our App will never suffer from any failure or outage. Data loss is an unavoidable risk, and you are responsible for maintaining copies of all data you enter into our App. We will strive to keep the App up and running, however no software is perfect, and we will not be liable for any disruption or loss you may suffer as a result of such occurrence.
5.2. On occasion, we need to perform maintenance on the App, and this may require a period of downtime. We will always try to minimise the duration and disruption of any such downtime and, where planned maintenance is being undertaken, we will try to notify you in advance.
5.3. We rely on you to keep your login details secure, and not let any other person use them. If you realise there has been any unauthorised use of your login details or any breach of security to your account or email address linked to your account, you need to let us know immediately.
6. FEES THAT WE WILL RECEIVE
6.1. If any fees apply for your use of the App, these fees will be processed through the App and/or the app store from which you downloaded the App, subject to the relevant store’s billing terms and policies. Unless otherwise stated, all amounts are stated on a tax (including GST) exclusive basis.
6.2. If you signed up for a free trial period and you continue to use our services after the expiry of that free trial period, then you will be charged accordingly.
6.3. We may review our fees from time to time, but we will provide you with reasonable notice of any increases in advance.
6.4. Payment is important to us, it allows us to keep doing what we do best, so if you fail to make any payment by the relevant due date, without prejudice to any other right or remedy, we may suspend your access to the App until such payment is made.
7. OWNERSHIP OF INTELLECTUAL PROPERTY
7.1. We have worked very hard to develop our App and are quite proud of what we have achieved. As such, you acknowledge and agree that all existing and future intellectual property rights are owned by Bearmore (and vest in, and are assigned to, Bearmore on creation). Nothing in these terms or your use of the services is intended to transfer any intellectual property rights of any kind and you must only use, reproduce, modify, publish and adapt our intellectual property with our express prior written consent.
8. BEGINNING AND ENDING OUR RELATIONSHIP TOGETHER
8.1. Unless specifically agreed with you, we will start providing you with access to the App as soon as you sign up. We will grant you the right to use our App (based on your subscription type, your user role and the level of access that you have been granted) for as long as you continue to pay for the subscription (if applicable), until the subscription is terminated or otherwise expires, or your access is otherwise revoked.
8.2. We may need to undertake a review of your suitability to use the App from us prior to commencement and we will keep you informed if there are any issues or requirements in this regard.
8.3. You may terminate your use of the App at any time by uninstalling the App from your device. If your access is part of a subscription, you must also cancel through the relevant app store to prevent further billing.
8.4. We reserve the right to suspend or terminate your access to the App if:
8.5. You breach any material term of these terms and fail to remedy the breach within 14 days of receiving notice from us;
8.6. Your actions violate the app store’s terms of service or policies; or
8.7. Required by law or due to unforeseen technical issues or security concerns.
8.8. You will still need to pay all applicable fees up to and including the day of expiry or termination.
8.9. All provisions of these terms that are intended to survive (including those relating to confidentiality, privacy, intellectual property rights and liability) will continue to survive expiration or termination (for whatever reason).
9. WHAT IF THINGS GO WRONG
9.1. We provide the App and its content for informational and educational purposes only. The App does not offer medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition.
9.2. We acknowledge that, to the extent applicable, the Competition and Consumer Act 2010 (Cth) implies or imposes certain statutory guarantees, conditions or warranties into contracts for the supply of goods or services to consumers that cannot be excluded (Non-Excludable Terms). Nothing in these terms is intended to exclude or restrict the application of the Non-Excludable Terms. However, to the extent permitted by law, access to our App and all third-party products are made available to you on an ‘as is’ basis and Bearmore excludes all other implied warranties, guarantees, conditions or other terms, whether implied by statute or otherwise.
9.3. Other than liability that we cannot exclude or limit by law, our liability to you in connection with these terms or the App, whether in contract or in negligence or any other tort or for any other common law or statutory cause of action, is limited as follows:
9.3.1. we have no liability for any indirect or consequential loss arising from the use of the App, including but not limited to, any loss or damage that may arise from relying on information or materials obtained through the App, or for any health-related decisions made based on such information;
9.3.2. our liability for loss or corruption of your data, will be limited to taking reasonable steps to try and recover that data from our available backups; and
9.3.3. our maximum aggregate liability arising out of or in connection with these terms and you ruse of the App, whether in contract or in negligence or any other tort or for any other common law or statutory cause of action, is limited to the amount you paid us for your subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
9.4. Our services may contain links to websites, services or advertisements for third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for any such third party content and have no control over or rights in such third party content.
9.5. You acknowledge that the health information and educational videos provided in the App are not a substitute for professional medical advice, diagnosis, or treatment. The use of the App is at your own risk, and we do not guarantee any specific outcomes or improvements in health.
10. RESOLVING ANY DISPUTES OR DIFFERENCES AS THEY MAY ARISE
10.1. We always endeavour to resolve issues promptly and to the satisfaction of all involved. However, if any dispute or difference arises in connection with these terms or your use of our App that cannot be easily resolved, then each of us will refer it to senior management, who will use their best endeavours to resolve it before initiating any court proceedings.
10.2. If senior management cannot resolve a dispute within 14 days, each of us must, in good faith and acting reasonably, use best endeavours to resolve it by participating in a mediation with an independent mediator. If we cannot promptly jointly agree on a mediator, then the mediator will be appointed by the President of the Law Society of New South Wales. We must mediate the dispute or difference in accordance with principles agreed between us or, if no agreement can be promptly reached, the principles determined by the mediator. Unless we agree otherwise, the mediator’s fee and any other costs of the mediation itself (such as for venue hire or refreshments) will be shared equally between us, but each party will each pay their own costs of preparing for and participating in the mediation (such as for travel and legal representation).
10.3. Nothing in these terms prevents a party from seeking urgent interlocutory relief.
11. NOTIFYING EACH OTHER OF IMPORTANT THINGS
11.1. Any notice, consent, information, application or request that may be given to a party under these terms is only given if it is in writing and delivered or posted to that party at its notified address or emailed to that party at its notified email address.
12. KEEPING INFORMATION CONFIDENTIAL
12.1. While using our services, you may share confidential information with us; and you may become aware of confidential information about us. You and we both agree to take all reasonable steps to protect the other party’s confidential information from being accessed by unauthorised individuals except that each of us may share each other’s confidential information with legal or regulatory authorities where required to do so.
13. WE TAKE PRIVACY AND DATA PROTECTION SERIOUSLY
13.1. Each of us and you must comply with the Privacy Act 1988 (Cth), Spam Act 2003 (Cth) and any other applicable laws that affect privacy or personal information (Privacy Laws).
13.2. We will let you know if we become aware of any unauthorised access to personal information relating to your subscription. Depending on the nature of the unauthorised access, and the location of the affected person(s), you may be required to assess whether the unauthorised access must be reported to the affected person(s) and/or a relevant authority.
13.3. You must take all reasonable steps to ensure that all personal information and other data that you provide to us in connection with the services has been collected and disclosed in accordance with the Privacy Laws and is, and continues to be, accurate and up-to-date. You acknowledge and agree that we may use or disclose data and personal information to any third party on an aggregated and de-identified basis in accordance with our Privacy Policy.
13.4. Each of us must promptly inform the other in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of personal information and comply with any reasonable direction of the other party in relation to a complaint concerning the use, disclosure, storage, transfer or handling of personal information.
13.5. We must each co-operate with any reasonable request or direction of the other which relates to the protection of personal information or the exercise of the functions of a government agency.
14. OTHER PROVISIONS
14.1. These terms contain everything the parties have agreed in relation to the matters they deal with. No party can rely on an earlier agreement, or anything said or done by another party, or by a director, officer, agent or employee of that party, before you subscribed, except as permitted by law.
14.2. Nothing in these terms is to be understood as constituting a partnership, joint venture, employment or agency relationship between you and us, or between you and any other subscriber or invited user. You are solely responsible for resolving disputes between you and any other subscriber or invited user.
14.3. If a clause or part of a clause of these terms can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of these terms is not affected.
14.4. You may not assign or novate any of your rights or obligations under these terms without the prior written consent of Bearmore, which must not be unreasonably withheld or delayed. We may assign or novate our rights and obligations under these terms as we may choose without need of your consent.
14.5. We may amend these terms from time to time but we will provide you reasonable notice (usually 30 days’ prior notice unless we need to make immediate changes for reasons outside of our control). If you do not agree with the amendments, you may terminate your subscription by giving us the requisite written notice or such lesser period as we agree in writing.
14.6. We are proud of the relationships we form with our users. You consent to us publishing that you are a Bearmore subscriber in any marketing or promotional material and in any other statements until 30 days after you withdraw that consent in writing.
14.7. These terms are governed by the law of New South Wales. Each of you and us submit to the non-exclusive jurisdiction of its courts and courts of appeal from them and will not object to the exercise of jurisdiction by those courts on any basis.
15. NOTICE REGARDING APPLE
15.1. To the extent that you are using or accessing our App on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the App and any content available on the App.
15.2. Apple has no obligation to furnish you with any maintenance and support services with respect to our App.
15.3. If our App fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
15.4. Apple is not responsible for addressing any claims by you or any third party relating to our App or your use of our App, including but not limited to
15.4.1. product liability claims;
15.4.2. any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and
15.4.3. claims arising under consumer protection or similar legislation.
15.5. Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our App infringes that third party’s intellectual property rights.
15.6. You agree to comply with any applicable third-party terms when using our mobile application.
15.7. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
15.8. You hereby represent and warrant that:
15.8.1. 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
15.8.2. you are not listed on any U.S. Government list of prohibited or restricted parties.
Version Date: October 2024