The Company provides the “Happyful” digital platform to improve the mental health and wellbeing of users. Use of Happyful is subject to these Terms of Service.
(a) ABN means Australian Business Number.
(b) Account means a registered account within Happyful.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(d) Company means Happyful Pty Ltd ABN 85 652 436 587.
(e) Confidential Information means any written or verbal information that:
i Is about each party’s business or affairs;
ii Is about the conduct of each party under these Terms of Service, during the term of these Terms of Service;
iii A party informs the other party that it considers it confidential and/or proprietary;
iv A party would reasonably consider to be confidential in the circumstances; and
v Is personal information within the meaning of the Privacy Act; but does not include information that a party can establish:
vi Was in the public domain at the time it was given to that party;
vii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
viii Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
ix Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(f) Exercise means an exercise, activity and/or questionnaire to be completed by the User via Happyful to determine values, set goals and other wellness-related matters, as updated by the Company from time-to-time.
(g) Gratitude Journal means the feature within Happyful that allows Users to journal on an ongoing daily basis to track and note experiences, feelings, and accomplishments.
(h) Happyful means the “Happyful” health and wellness digital platform, owned and operated by the Company, and accessible from Mobile Application Marketplaces from time-to-time.
(i) Happyful Hub means the area within an Account that provides Users with access to wellness-related resources and activities such as the Gratitude Journal, as updated from time-to-time by the Company.
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(k) Mobile Application Marketplace means an online marketplace for access to Happyful and other applications for mobile devices, such as the App Store and Google Play.
(l) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(m) Privacy Act means the Privacy Act 1988 (Cth).
(n) Site means the Company’s website found at https://www.happyful.com.au/ and any other URL the Company may adopt from time-to-time.
(o) Terms of Service means the terms and conditions that apply to the User with respect to use of Happyful, as updated from time-to-time and published on the Site.
(p) User means any user of Happyful.
(q) User Data means any information, documents or other data that is uploaded into, or created using, Happyful by the User, or that otherwise forms part of the User’s Intellectual Property such as entries into the Gratitude Journal, but excludes any derivative data (such as analytics).
(a) To use Happyful, the User must accept these Terms of Service.
(b) The User agrees that all use of Happyful is subject to these Terms of Service and must immediately cease to use Happyful if the User can no longer agree or adhere to these Terms of Service.
(c) The User agrees to use Happyful in accordance with any instructions provided by the Company and/or within Happyful.
(d) No fees shall apply to Users to download and use Happyful.
(a) The Company does not provide personalised mental health or well-being services, and Happyful is not intended as a substitute for professional healthcare advice, diagnosis, or treatment.
(b) The User should always seek the advice of your physician or other qualified health providers with any questions they may have regarding a medical condition or general mental health and must not disregard professional medical advice or delay in seeking it because of Happyful.
(c) The Company makes no representation or guarantee that the User will achieve particular results or benefits from using Happyful, in particular improved mood or mental health.
(a) The User must have set up their Account to use Happyful.
(b) To create an Account, the User must verify their mobile number by entering the verification code sent to their mobile device.
(c) The User may be required to provide their full name, email address, age bracket and any other information reasonably requested by the Company as part of the Account sign up process.
(d) The User must provide accurate and complete information when setting up an Account and, if necessary, update their Account to ensure that such information is maintained as current for the duration of these Terms of Service.
The Company shall provide the User with access to and use of the features as provided within Happyful from time-to-time, which shall include (without limitation) the Happyful Hub, the Gratitude Journal, and Exercises.
(a) Exercises comprise of a set of pre-determined questions, tests and/or activities to be completed by the User.
(b) The User should complete Exercises accurately and truthfully, and by the User personally and not on their behalf or upon the instruction of any third party.
(c) The Company may add, vary and/or remove elements of Exercises, or create new Exercises altogether, at its complete discretion from time-to-time.
(d) The content, design, and structure of Exercises, in particular the questions asked of the User, remain the Intellectual Property of the Company and the User must not copy, reproduce, vary, distribute or otherwise exploit Exercises without the Company’s express prior written consent, or permit any third party to do so.
(a) User Data is the sole responsibility of the User that uploaded the User Data to Happyful;
(b) The User indemnifies the Company for any User Data that is illegal, offensive, discriminatory, defamatory, indecent or objectionable that the User makes available using Happyful;
(c) Without limiting the Company’s rights, the Company may remove or suspend accessibility to User Data via Happyful that the Company determines is illegal, offensive, discriminatory, indecent or objectionable in its sole discretion;
(d) To the extent permitted by law, under no circumstances will the Company be liable in any way for User Data and the User is responsible for the accuracy, quality and legality of any data uploaded to Happyful;
(e) Happyful may enable the User to create User Data, but that by doing so the User shall not acquire an interest to any Intellectual Property owned by the Company which may exist in Happyful; and
(f) The User warrants that it has all necessary Intellectual Property rights to use User Data, and shall indemnify the Company for any infringement the User commits of third-party Intellectual Property rights by using User Data on Happyful.
(a) By accepting these Terms of Service, the User is granted a limited, nonexclusive, non-transferrable and revocable licence to access and use Happyful for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service.
(b) The Company may issue the licence to the User on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the User’s licence in its absolute discretion for any reason that it sees fit, including for breach of these Terms of Service by the User.
(a) The terms of these Terms of Service may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Happyful.
(c) The modified terms shall come into effect the next time the User accesses Happyful following notice of the updated Terms of Service.
(d) If the User does not accept any changes to the terms of these Terms of Service, the User may terminate these Terms of Service and must immediately cease using Happyful.
(a) The User agrees and accepts that Happyful is:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to servers operated by the Company and is not available ‘locally’ from the User’s systems; and
ii Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to Happyful is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Happyful.
(a) The User shall only use Happyful for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User agrees that the Company shall provide access to Happyful to the best of its abilities, however:
i Access to Happyful may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to Happyful.
(a) The Company provides user support for Happyful via the email address support@happyful.com.au.
(b) The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act with respect to personal information that it collects about the User.
(b) The Privacy Policy does not apply to how the User handles personal information. If necessary, under the Privacy Act, it is the User’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
(c) Happyful may use cookies (a small electronic file) to improve the User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
(d) The Company may use User Data and other information collected via Happyful for research, developmental, statistical and analytical purposes, subject to and in accordance with the Privacy Policy with respect to personal information.
The Company takes the security of Happyful and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(a) Trade marks. The Company has moral, unregistered and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Third Party Intellectual Property. The Company may use software and other proprietary systems and Intellectual Property (including open source systems) for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Happyful.
(c) Happyful. The User agrees and accepts that Happyful is the Intellectual Property of the Company and the User further warrant that by using Happyful the User will not:
i Copy Happyful or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Happyful or any documentation associated with it.
(d) Content. All content (excluding User Data) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, aggregations, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Happyful.
The User agrees and acknowledges that Happyful has third party dependencies which may affect its availability, including (without limitation) hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
(a) The Company agrees to keep all other User Data in the strictest confidence, and to the extent User Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
(b) Each party acknowledges and agrees that:
i The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii It owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii It must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v Any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i Any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
(a) The User agrees that it uses Happyful at its own risk.
(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances, especially any decisions made in reliance on information received via Happyful.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Happyful, including any breach of these Terms of Service by the User.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Happyful, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) The User may terminate these Terms of Service by giving the Company written notice or simply deleting their Account.
(b) The Company may terminate these Terms of Service and access to the Happyful if the User is in breach of these Terms of Service and:
i That breach is not capable of remedy;
ii The breach is material, wilful, reckless or repetitious; and/or
iii The breach can be remedied but is not remedied within 5 Business Days of being given notice of that breach by the Company.
(c) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative from each of the parties with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) The User may not assign or otherwise create an interest in these Terms of Service without the written consent of the Company (which shall not be unreasonably withheld).
(f) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
(a) Special Conditions. The parties may agree to any special conditions to these Terms of Service in writing.
(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with any special conditions made under these Terms of Service, as relevant, the terms of those special conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(g) Governing Law. These Terms of Service is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
(i) Interpretation. The following rules apply unless the context requires otherwise:
i Headings are only for convenience and do not affect interpretation.
ii The singular includes the plural and the opposite also applies.
iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
iv A reference to a clause refers to clauses in these Terms of Service.
v A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
