The following terms and conditions (the "Terms") are a legal agreement between you ("you") and The Hospitals Contribution Fund of Australia Ltd (“HCF”, "we", "our", "us”). These Terms together with our HCF Healthful App Privacy Policy and HCF Privacy Policy set out the terms on which we make available, and you may use, the HCF Healthful mobile application (“Application”). Please read these Terms carefully before you download or use the Application.
By downloading or using the Application, you agree to these Terms. If you do not agree to these Terms, please do not use the Application.
The Application provides you with a health score and a range of health, wellbeing and related information that is compiled based on specific details you provide, such as certain health and lifestyle information. The information and resources made available via the Application are intended for informational and educational purposes only. They are not a substitute for professional 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 or treatment. Never disregard professional medical advice or delay in seeking it because of something you have read or accessed through this Application. You acknowledge and agree that we are not responsible for any decisions made or actions taken based on the information provided herein.
If you have any questions about the Application, please contact us on support@healthful.hcf.com.au
1. ELIGIBILITY TO USE OUR APPLICATION
1.1 To use the Application, you must:
1.1.1 hold an Eligible Policy with us, or be a named dependant or partner on an Eligible Policy;
1.1.2 be 18 years of age or older; and
1.1.3 have downloaded the latest version of the Application on a Device.
1.2 If we become aware that you do not meet the criteria in clause 1.1, we may terminate or suspend your access to the Application.
2. ACCESS TO OUR APPLICATION
2.1 Subject to these Terms, you may install one copy of the Application onto your Device as set out in these Terms and use it in accordance with these terms for your own personal, non-commercial use.
2.2 We may, from time to time, update or modify the features or functionality of the Application to reflect developments in technology or to alter or add to existing functionality. Any available updates, enhancements and new versions of the Application will become automatically available when you next access the Application.
2.3 You are responsible for making all arrangements necessary to access the Application. You are also responsible for ensuring that all persons who access the Application through your Device and internet connection are aware of these Terms, and that they comply with them.
3. PROHIBITED USES OF APPLICATION
3.1 You may only use the Application in accordance with these Terms. You must not use the Application:
3.1.1 in any way that breaches any applicable law or regulation;
3.1.2 in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect. This includes, for example, by hacking into or introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful into the Application;
3.1.3 for the purpose of harming or attempting to harm individuals in any way;
3.1.4 to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (including “spam”);
3.1.5 to attempt to gain unauthorised access to, interfere with, damage or disrupt the Application, any software used in the provision of the Application or any server, computer or database connected to the Application, including via a denial of service attack or a distributed denial of service attack;
3.1.6 in a way that could damage, disable, overburden, impair or compromise the Application, or its systems or security, or in a way that could interfere with another user's rights, use or enjoyment of the Application;
3.1.7 to reproduce, duplicate, copy, sell, trade, or resell the Application content (including its design and look) or any output derived from the Application. You are not entitled to modify or redistribute the Application content (including its design and look) or any output or to reproduce, store, link, frame or deep-link it on any other Application or in any other medium or format without our prior written consent; or
3.1.8 for commercial exploitation in any circumstances.
4. FITNESS WEARABLES
4.1 You may choose to connect a compatible Fitness Wearable to the Application to record your physical activity.
4.2 We are not responsible for the accuracy, reliability, effectiveness, or correct use of information the Application receives through any Fitness Wearable, or for any associated costs, all of which are your responsibility.
4.3 You are responsible for complying with any third party terms that may apply to your use of any Fitness Wearable.
5. HEALTH AND WELL-BEING CHALLENGES
5.1 You may register for the participation in various challenges through the Application. By registering, you acknowledge that you are participating in a potentially hazardous activity and at your sole risk and responsibility. You further acknowledge that you will not make use of means or behave in a way that can reasonably be considered as contrary to the general rules of fairness.
5.2 We may screen and verify your activity and to temporarily or permanently exclude you from a particular challenge in general or to suspend or terminate your access to the Application in case we reasonably believe that such measure is necessary to:
5.2.1 satisfy any applicable law, regulation, legal process or governmental request;
5.2.2 enforce any acknowledgements you made, including the investigation of a potential violation thereof; or
5.2.3 protect the rights, property or safety of us and other users of the Application.
5.3 In cases where challenges feature a reward, the assessment of the best result will be separately defined for each challenge utilising skill-based criteria. Our decisions regarding challenges are final.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 You acknowledge and agree that we and our licensors are the owners of and will retain all rights, title and interest in all Intellectual Property Rights in:
6.1.1 The Application;
6.1.2 any improvements, enhancements or modifications to the Application; and
6.1.3 all data, content and other Intellectual Property Rights derived from or created by the Application (other than your User Data).
6.2 You grant us a non-exclusive, non-transferable, perpetual, royalty-free licence to use the User Data for the purpose of making the Application available to you and for the purpose of making any improvements to the Application.
6.3 You must not:
6.3.1 remove any copyright, trade mark or other Intellectual Property Rights legend from the Application;
6.3.2 make use of any of our trade marks or other Intellectual Property Rights in any manner unless we have given you express written permission to do so; or
6.3.3 to copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce all or any part of the Application.
7. PRIVACY AND DATA PROTECTION
7.1 We collect and process personal information about you in accordance with the HCF Healthful privacy policy and the HCF privacy policy, as may be applicable.
7.2 By using the Application, you agreed that we will collect and process your personal information including your sensitive information in accordance with the HCF Healthful privacy policy and relevant parts of HCF’s privacy policy for the purposes set out in those policies and you warrant that all the information you provide is up to date and accurate.
8. WARRANTIES AND DISCLAIMER
8.1 By downloading the Application, you warrant that you:
8.1.1 are legally capable of entering into binding contracts either on your own behalf;
8.1.2 are not a person barred from accessing the Application according to the applicable law; and
8.1.3 will comply with these Terms.
9. TERMINATION AND SUSPENSION
9.1 Either party may terminate this agreement immediately at any time, with or without notice, if the other party has materially breached these Terms.
9.2 You may terminate this agreement, at any time, by deleting the Application from all Devices you have installed it on.
9.3 If this agreement is terminated for any reason you will delete the Application from your Device and we have the right to block your access to the Application.
9.4 Failure to comply with these Terms constitutes a material breach of these Terms upon which you are permitted to use the Application, and may result in our taking all or any of the following actions:
9.4.1 immediate, temporary or permanent withdrawal of your right to use the Application;
9.4.2 immediate, temporary or permanent removal of any posting or material uploaded by you to the Application;
9.4.3 issue of a warning to you;
9.4.4 legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach; and
9.4.5 disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
10. OUR LIABILITY
10.1 Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy conferred by the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) or any other applicable law that cannot be excluded, restricted or modified by agreement.
10.2 To the fullest extent permitted by law, our liability for a breach of a non-excludable condition or warranty is limited at our option (where permitted by the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) to:
10.2.1 in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired; or
10.2.2 in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
10.3 Subject to clause 10.1 and to the fullest extent permitted by law, you acknowledge and agree that access to and use of the Application is provided on an “as is” basis and we make no express warranties in relation to the availability, ongoing functionality, quality or accuracy of outputs or performance of the Application.
10.4 Subject to clause 10.1 and to the fullest extent permitted by applicable law, neither party will be liable to the other party, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss, loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, loss of reputation, and loss of use or corruption of software, data or information arising under, or in connection with your use of the Application.
10.5 Subject to clause 10.1and to the extent permitted by applicable law, except for claims relating to fraud, willful misconduct, gross negligence or any breach of clause 3, neither party will have any liability to the other in respect of any claims arising out of or in connection with the Application provided under these Terms, whether in contract or tort (including negligence).
11. OUR APPLICATION CHANGES REGULARLY
11.1 We aim to update the Application regularly and may change the content at any time. If the need arises, we may suspend access to the Application, or close it indefinitely. Any of the material or information on the Application or on a third party website which you visit through the Application may be out of date at any given time and we are under no obligation to update such material or information.
11.2 Without prejudice to any other provision of these Terms, you agree that we are not liable to you for all and any losses arising out of any out of date material or information.
12. ADVERTISING
12.1 In accordance with the HCF Healthful App Privacy Policy, we may, through the Application:
12.1.1 advertise, certain HCF services, offers and promotions available to you. The Terms that apply to such offers will be notified to you; and
12.1.2 include advertising by third parties, where the Application contains third party advertising that links to websites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those websites or resources, and accept no responsibility for them, their content, or for any loss or damage that may arise from your use or consideration of them.
13. CHANGES TO THESE TERMS
13.1 We may, from time to time amend these Terms. We will provide you with 60 days prior written notice on the Application or your email of any such amendments. If you do not agree with any amendments to these Terms, you may stop using the Application any time by deleting your profile from the Application or deleting the Application from your Device.
13.2 You agree that if you use our Services after the date on which such changes to the Terms have occurred, we will treat your use of our Services as acceptance of the changed Terms.
14. APPLE TERMS
14.1 This clause 15 only applies if you access the Application through Apple's App Store ("App Store”)
14.2 You acknowledge and agree that:
14.2.1 this agreement is between you and HCF and not with Apple and that, as between HCF and Apple, HCF is responsible for the Application and the content;
14.2.2 the licence granted to you under clause 2.1 to use the Application is non-transferable license to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with the purchaser via ‘Family Sharing’ or volume purchasing;
14.2.3 HCF, and not Apple, is responsible for:
(a) providing any maintenance and support services with respect to the Application;
(b) any express or implied warranties to the extent not effectively disclaimed. 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, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be HCF’s sole responsibility;
(c) addressing any claims you or any third party relating to the Application or your possession and/or use of the 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; and
(d) the investigation, defense, settlement and discharge of any such claim in the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights;
14.2.4 you must comply with applicable third party terms of agreement when using the Application; and
14.2.5 Apple and its subsidiaries are third-party beneficiaries of this agreement and Apple has the right (and will be deemed to have accepted the right).
14.3 You represent and warrant that:
14.3.1 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
14.3.2 you are not listed on any U.S. Government list of prohibited or restricted parties.
15. GOOGLE PLAY STORE TERMS
15.1 This clause 16 only applies if you access the Application through the Google Play Store.
15.2 You acknowledge that:
15.2.1 these Terms are between you and HCF only, and not with Google, Inc. (“Google”);
15.2.2 your use of the Application must comply with Google’s then-current Google Play Store Terms of Service;
15.2.3 Google is only a provider of the Google Play Store where you obtained the Application;
15.2.4 HCF, and not Google, is solely responsible for the Application;
15.2.5 Google has no obligation or liability to you with respect to the Application or these Terms; and
15.2.6 Google is a third-party beneficiary to these Terms as it relates to the Application.
16. GENERAL
16.1 These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of these Terms.
16.2 A party must do all things and execute all documents that are reasonably necessary to give full effect to these Terms.
16.3 These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non contractual disputes or claims) shall be governed by and must be construed in accordance with the laws in force in New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
16.4 If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force.
17. DEFINITIONS AND INTERPRETATION
17.1 In addition to the capitalised terms defined elsewhere in these Terms, the following terms shall have the meanings set out below.
"Activities" means any activity, challenge, assessment, goal setting, fitness and sleep tracking, or promotion advertised by us for you to complete in Application;
"Application" means the Application published by us, named HCF Healthful, for use on er Devices through which you can complete Activities;
"Device" means a smartphone or any other device on which the Application may be accessed, as determined by us from time to time;
"Eligible Policy" means any private health insurance policy offered by HCF, but does not include (i) overseas health cover; or (ii) accident and ambulance only cover;
"Fitness Wearable" means a health or fitness tracking Device that can sense user movement and measure data such as number of steps walked, heart rate and other personal metrics;
"Intellectual Property Rights" means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights; and
"User Data" means all data supplied or made available to us by you in connection with this agreement which may comprise personal information.
