1. BACKGROUND

1.1  These terms and conditions (Terms) give rise to a legally binding agreement between you and LEAPFORWARD.AI PTY LTD (ACN 633 082 238) of 'Tower 1' Level 27 100 Barangaroo Avenue, Sydney NSW 2000 (Provider, we, us)  and apply to your use of the Leapforward program (Program) provided to you by us at the request of your employer (Employer) or insurer (Insurer).   

1.2 By checking the box “I accept” and clicking on the “Proceed” button, you represent and warrant that you have read and understood these Terms, that you are at least 18 years old, and that you agree to be bound by and abide by these terms.

2. DEFINITIONS

Consequential Loss means:

(a) in the case of loss or damage or liability to a party resulting from a breach of contract, that which is indirect, remote or unforeseeable loss, pure economic loss, loss of use, loss of contracts, loss of revenue, loss of profit, loss or denial of opportunity, loss of access to markets, loss of goodwill, loss of business reputation, loss of production, increased overhead costs, or wasted overheads or any other similar loss occasioned by that breach, whether or not in the reasonable contemplation of the parties at the time of execution of this agreement as being a probable result of the relevant breach;

(b) in the case of loss or damage arising from any tort (including negligence), that which is indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort; or

(c) in the case of loss or damage arising from any breach of law, that which is indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the breach of the law, save where such loss or damage cannot be excluded or limited by operation of mandatory provisions of law.

Copyright Material means any work or other subject-matter in which copyright subsists or is capable of subsisting under the Copyright Act 1968 (Cth) or equivalent legislation;

IP means any Confidential Information, Copyright Material, Moral Rights, inventions (including patents), trademarks, business name registrations, service marks, designs, circuit layouts and performance protection (whether or not now existing and whether or not registered or registerable) in relation to the Provider or as otherwise required;

IP Right means any and all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), Moral Rights, inventions (including patents), trade marks, service marks, designs, circuit layouts and performance protection (whether or not now existing and whether or not registered or registrable) and includes any affairs; right to apply for the registration of such right and all renewals and extensions;

Moral Rights has the same meaning as in Divisions 2, 3 and/or 4 of Part IX of the Copyright Act 1968 (Cth);

Personal Information has the meaning given to it by the Privacy Act;

Privacy Act means the Privacy Act 1988 (Cth).

3. PURPOSE OF PROGRAM AND HOW IT WORKS

3.1 Recovery from injury and getting back to work involves not just treatment of your physical injury but also psychological support, education and the building of positive mental attitudes that are needs common to all persons, irrespective of their particular injury or situation (General Psychological Assistance).

3.2 An employer or Insurer may request that we make the Program available to you.

3.3 The purpose of the Program is to deliver to you both passive educational content and interactive coaching sessions (Content) to provide:

(a) General Psychological Assistance to you so that you return to work earlier and in better mental and emotional shape (Health Purpose); and

(b)  de-identified analytical data to assist employers, insurers and academics to develop better tools and methods for the care of injured workers in the future.

3.4 The Program also allows the Provider to monitor your progress in viewing and interacting with the Content.

4. USE OF PROGRAM

4.1 You agree not to use the Program other than in accordance with the instructions provided to you as part of the Program.

4.2 The Program is for your personal, non-commercial use only.

4.3 You must not permit the Program to be used by third persons.

5. DISCLOSURE AND ASSUMPTION OF RISK

5.1 You acknowledge and agree that:

(a) the Content is general in nature and is not tailored to your particular circumstances or condition(s);

(b) the Content is not prescribed or supervised by a medical practitioner or qualified psychologist or counsellor;

(c) the Program is not designed to diagnose or treat specific psychological/psychiatric injury, or persistent mental, emotional or behavioural issues. If you require specialised advice or treatment in respect of the aforementioned conditions, you must seek treatment from an appropriately qualified practitioner.

(d) your participation in the Program involves attendant risks of exacerbating an underlying condition that is specific to you and which cannot or may not be known to the Provider. Although these risks are small, they exist, and you accept those risks by using the Program.

(e) the Program and Content are not appropriate for persons suffering crises or emergency situations. In the event of crisis or emergency you must immediately contact (if in Australia) one or more of the following emergency services:

(i) Emergency authorities: 000

(ii) Lifeline: 13 11 14

(f) nothing in the Program or Content is intended to suggest that the Program or any of the Content can replace, or reduce the urgency of the need for, in-person or emergency services.

(g) you are responsible for ensuring you use and interact with the Program and Content in a safe environment to minimize the attendant risks.

(h) the Provider does not guarantee that the Program is completely error free.  You acknowledge that the existence of any errors does not constitute a breach of this agreement.

(i) you do not rely on any statement made to you that is not consistent with the above disclosures and acknowledgements.

6. LIABILITY AND INDEMNITY

6.1 Disclaimer

Subject to paragraph 6.2 we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Program or the Content, and we are not liable to you if the Program or Content is unavailable for any reason.

6.2 Non-excludable Obligations

(a) To the extent that you acquire goods or services from us as a 'consumer' (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. 

(b) Nothing in this clause 6 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other statute, the exclusion, restriction or modification of which would:

(i)  contravene that statute; or

(ii)  cause any term of these terms to be void,
(Non-excludable Obligation).  

6.3 Exclusions and limitations

Except in relation to Non-excludable Obligations:

(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are expressly excluded under these terms;

(b) our liability to you arising directly or indirectly under or in connection with these terms or the performance or non-performance of these terms and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:

(i) we will have no liability whatsoever to you for any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract, loss of data, loss of use of data or any other economic, special, indirect or Consequential Loss, harm, damage, cost or expense (including legal fees) incurred by you or anyone else under or in connection with this Program or Content; and

(ii) our total aggregate liability to you is otherwise limited to an amount not exceeding the total amounts paid by you for the Program and Content.

6.4 Indemnity and Release

(a) You release the Provider and the Employer from any liability for loss or damage you sustain or suffer as a result of, or in connection with, using, viewing or interacting with the Program or the Content, including all liability for psychological injury, economic loss and Consequential Loss.

(b) You indemnify the Provider and the Employer against any loss, damage, claim, liability, cost or expense either may incur or suffer (including any claim made by a third party) arising from or in connection with your breach of these Terms or the terms and policies it incorporates by reference, or your violation of any law or the rights of any third party.

(c) While we have taken industry standard measures to maintain the security of the Program and records of information generated by users’ interaction with Content, no such undertaking is impervious to unauthorized access. In keeping with online offerings globally, all risk of the use of the Program lies with the user and you release the Provider and the Employer from any liability, claim, action, loss or damage as a result of or in connection with your use of the Program, and/or the unauthorised access of any person to any information created by such use and stored by the Program.

7. FEES

7.1 All fees payable for your use of the Program and for the processing of information created by that use are paid for by the Employer.

7.2 Your use of the Program is free of charge to you.

8. INFORMATION PROTECTION

8.1 Privacy

(a) You consent to your personal information and sensitive information being collected and used by the Provider and the Employer for the purpose of the Program in accordance with our Privacy Policy.

(b) Any information that concerns your personal medical, physical, emotional or mental condition or status and which is capable of identifying you (Health Information) will not be used by the Provider or the Employer for any purpose other than the Health Purpose or a purpose that is directly related to the Health Purpose and which a user would reasonably expect in the circumstances to be used for such purpose (Permitted Secondary Purpose). For the avoidance of doubt, disclosure to the Employer’s insurer whose policy answers any claim by you, is a Permitted Secondary Purpose.

(c) For the Provider’s full Privacy Policy please go to: https://secure.letsleapforward.com/legal/privacy-policy

8.2  Intellectual Property

(a) All IP rights, including copyright in the Content and the code comprising the Program vests in the Provider or in third parties and/or licensors engaged by the Provider.

(b) You must not copy or attempt to reverse engineer the Program in any way.

(c) You have the non-exclusive right to use the Program for the purpose for which it was provided. This agreement does not give you any proprietary rights.

(d) By uploading any material that is protected by IP Rights to the Program, you are granting the Provider a perpetual, non-exclusive and payment-free licence throughout the world to:

(i) reproduce, use and exploit the IP, as part of the records created by the Program, to the full extent permitted by IP law in any jurisdiction in which the Program is available to users, for the Health Purpose and Permitted Secondary Purpose; and

(ii) allow us to sub-license others the same rights granted to us in 8.2(d)(i) above.

8.3 Ownership

As between you and us, all rights, title and interest (including IP Rights) in the Program and Content are owned by us, and/or our third party licensors.

8.4 Security

While we use reasonable endeavours to ensure the Content, and any transactions conducted through the Program and App are secure, you acknowledge that the security of information transmitted through the internet can not be entirely secure or error free. We are not liable for any loss or damage suffered by you or anyone else due to a failure, delay, interception or manipulation of an electronic communication caused by a third party.

9. ALTERATION OF TERMS

The Provider may, in its absolute discretion change the terms of this agreement as the Provider reasonably considers necessary to protect its rights or to respond to changed conditions with or without further notice, explanation or justification to you.

10. ACCESS AND AMENDMENT OF RECORDS

You have the right to access and request amendment of your Health Information – see Part 4 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) and Australian Privacy Principles (APP’s) in Schedule 1 of the Privacy Act.

11. MISCELLANEOUS

11.1 Assignment

This agreement is personal to you and cannot be assigned.

11.2 Severance

Any provision of this Deed which is prohibited or unenforceable in the jurisdiction specified in clause 11.7 below will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Deed nor affect the validity or enforceability of that provision in any other jurisdiction.

11.3 Amendment

This Deed may be amended only by another agreement executed by all Parties.

11.4 Variation

No variation, modification or waiver of any provision in this Deed, nor consent to any departure by any Party from any such provision, will be of any effect unless it is in writing, signed by the Parties or (in the case of a waiver) by the Party giving it.  Any such variation, modification, waiver or consent will be effective only to the extent to or for which it may be made or given.

11.5 Contra Proferentem

The contra proferentem rule and other rules of construction will not apply to disadvantage a Party whether that Party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

11.6 Waivers

A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the Party giving the waiver.

11.7 Governing Law

This agreement is governed by the laws of New South Wales. The Parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

11.8 Survival

Any indemnity or any obligation of confidence under this Deed is independent and survives termination of this Deed. Any other term by its nature intended to survive termination of this Deed survives termination of this Deed.

11.9 Entire Agreement

This Deed contains all the contractual arrangements of the Parties with respect to the items to which it relates and supersedes all earlier conduct (including any agreements in relation thereto) by the Parties with respect to those items.