Last Updated: 12 December, 2022
The Always Here Apps are owned by TogetherAI Pty Ltd, ABN 71 642 255 570 (trading as Always Here), whose registered office is Level 2, 20 Hutchinson Street, Surry Hills in the State of New South Wales, Australia 2010 (TogetherAI Australia) and operated in Australia by TogetherAI Australia and under licence:
Together Australia, TogetherAI USA and TogetherAI UK are referred to as “we”, “our” or “us”, unless the context requires otherwise. The Always Here Apps are smartphone and tablet applications designed to assist children and their parents and caregivers in identifying a range of wellbeing and mental health issues that may be impacting on their children and discussing those issues with their children (in this Agreement we refer to Always Here Parents and Always Here Children apps interchangeably as “the App”). The App is not a crisis prevention or management service nor a medical service.
The App is available on iOS and Android systems and can be downloaded by children, parents, and caregivers from the Apple App Store and Google Play using compatible smartphones and tablets. The Always Here Parents App can be accessed by parents and caregivers (Parent Caregiver Users) using a parent caregiver user account (Parent Caregiver User Account(s)) and children (Child Users) who access the Always Here Kids App using a linked child user account (Child User Account(s)) (together, User Account(s)).
This End User Licence Agreement (Agreement) governs our relationship with both Parent Caregiver Users and Child Users (together, User(s)). It sets out legally binding provisions which regulate your use of the App and the Services if you are a User. For the avoidance of doubt, this Agreement creates a legal relationship:
The App and Services are directed to people residing in Australia, New Zealand, United Kingdom and the United States. We do not represent that content available on or through our App and Services is appropriate for use or available in other locations. If you think the App or Services are faulty or misdescribed, you want to learn more about the App or Services, you are having any problems with the App or Services or wish to contact us for any other reason please email our customer service team at firstname.lastname@example.org.
Please note: You must not register for a Parent Caregiver User Account and link your User Account to a Child User unless you are the parent or legal caregiver of the Child User.
1.1 Users can access the following functionality in the App (the Services):
1.3 If you do not wish to accept this Agreement, you must not and cannot use the App or any part of it.
2.1 WE DO NOT PROVIDE ANY MEDICAL ADVICE, RECOMMENDATIONS OR DIAGNOSES. WE RECOMMEND THAT YOU SEEK ALL NECESSARY MEDICAL ADVICE, RECOMMENDATIONS AND DIAGNOSES FROM YOUR HEALTHCARE PRACTITIONER. WE DO NOT PROVIDE OR REPRESENT THAT WE PROVIDE ANY MEDICAL SERVICE, AND WE ARE NOT A PARTY TO ANY CONTRACT FOR THE PROVISION OR RECEIPT OF ANY MEDICAL SERVICE. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT TOGETHERAI WILL RESULT IN THE DIAGNOSIS, DETECTION, CURE OR PREVENTION OF ANY PSYCHOLOGICAL, WELLBEING, MENTAL OR OTHER MEDICAL DISORDER OR ILLNESS. PLEASE NOTE THAT WHILE WE MAY MONITOR PERSONAL INFORMATION ENTERED INTO OR GENERATED VIA TOGETHERAI FROM TIME TO TIME, WE DO NOT REVIEW ALL SUCH INFORMATION AND DO NOT REPRESENT THAT WE OR TOGETHERAI WILL DETECT ALL OR ANY SPECIFIC PSYCHOLOGICAL, MENTAL OR OTHER MEDICAL DISORDER OR ILLNESS OR ANY SPECIFIC WELLBEING ISSUES OR THAT WE WILL TAKE ANY SPECIFIC ACTION IF ANY SUCH MATTERS ARE DETECTED.
2.2 WE DO NOT PROVIDE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS RELATING TO THE ABILITY OF THE APP TO DETECT ALL OR ANY ISSUES IMPACTING ANY PERSON. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIMS AGAINST US CONCERNING ANY FAILURE OF US OR THE APP TO DETECT OR TAKE ANY ACTION IN CONNECTION WITH ANY APPARENT MOOD, EMOTIONAL STATE, WELLBEING OR OTHER ISSUES OR ANY SPECIFIC PSYCHOLOGICAL, MENTAL OR OTHER MEDICAL DISORDER CONCERNING ANY PERSON.
3.1 Unregistered users of the App cannot use or access the App and the Services (other than to register as a User). Registration is required for individuals who wish to login to, access and use the App and the Services (each a User).
3.2 If you are not a User, we may terminate your access to the App and the Services or any part of it at any time without notice.
Parent Caregiver User Registration
3.3 To register for a Parent Caregiver User Account, you must select the number of Child Users using Child User Accounts linked to your Parent Caregiver User Account. Where applicable, we may request proof of legal guardianship over the Child Users and request that you provide the date of birth of each Child User that will be using the Child User Account(s) linked to your User Account to prove your parental or guardianship relationship to the Child User.
3.4 Unless otherwise agreed, if you are unable to provide such documentation or information, or if you have provided documentation or information under clause 3.3 that is not current or we cannot read, or that we become aware is incorrect, unreadable, falsified, or otherwise not verifiable, you will not be able to register for a User Account or create and link any Child User Accounts for any Child Users. We may also at any time suspend or terminate your User Account without notice if we discover that any such documentation that you have supplied is misleading, false and incorrect.
3.5 There can only be a maximum of 4 related Parent Caregiver User Accounts linked to a Child User Account.
3.6 We reserve the right to accept or reject any person’s registration on the App at our absolute discretion.
3.7 If any of the information you provide during the registration process changes, you must promptly update your User Account with the relevant up-to-date information.
3.8 You must not disclose or provide login credentials for any User Account (including a linked Child User Account) to any third party. You shall be solely responsible for the confidentiality of your username and password and any use and unauthorised use of your User Account. You must immediately notify us if you become aware of any unauthorised usage or access to your User Account or any Child User Accounts linked to your User Account and provide all necessary cooperation, assistance, information, materials, authorisations, permissions and access for us, upon demand and at no cost to us, to remedy the suspected, actual or potential breach, use or access and to otherwise comply with our legal obligations.
3.9 Upon becoming a User, you will have a non-exclusive, non-assignable, non-sublicensable, revocable licence to install the App on your smartphone or tablet device and a non-exclusive, non-assignable, non-sublicensable, revocable right to access the Services, in each case for the purposes expressly described in this Agreement.
3.10 You must pay all costs associated with accessing the App, such as internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs and roaming charges.
Parent Caregiver Consent
3.11 If you are the Parent or Caregiver of a Child User, by registering for a Child User Account on behalf of the Child User:
4.1 As between you and us:
4.2 You agree that:
4.3 You are solely responsible for the accuracy, legality and quality of Your Data and for obtaining any consents, permissions, licenses, rights and authorisations necessary for us to use, host, transmit, store and disclose Your Data in connection with the provision of the App and the Services.
4.4 Our statutory obligations govern access to Your Data.
4.5 To the extent permitted by law, we are not responsible for any loss, corruption or hacking of Your Data.
4.6 You shall pay any costs that we or any of our suppliers incur in respect of any claim that the transmission, storage, disclosure and processing of Your Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
5.1 While you are a User, we agree to use our best endeavours to procure hosting of the Services and Your Data and ensure that the Services are available to you via the App. You acknowledge that we may not own or operate the infrastructure the App and Your Data is hosted on.
5.2 The availability of the App and the Services to you will be subject, in addition to any other provisions set out in this Agreement, to any bandwidth limitations, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions set out in the App or on our website, and any planned and unplanned maintenance by us and/or our hosting providers.
5.3 You acknowledge that the accessibility and use of the App, the Services and Your Data processed by us requires an Internet connection and is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure which the App operates on, interfaces with and/or connects to and that we are not responsible for any non-performance of the App or the Services associated with any of those matters.
5.4 To the extent permitted by law, the App is provided "as is" and "as available", with all faults and without warranty of any kind and, except as expressly set out in this Agreement, we disclaim all warranties and conditions with respect to the App, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and of non-infringement of third-party rights.
5.5 To the extent permitted by law, we do not guarantee that the App and the Services or Your Data or access to them will be available, uninterrupted, defect-free, free of viruses or other harmful components or error-free or that any information displayed on the App is accurate, up to date, reliable and or fit for any particular purpose.
6.1 This Agreement does not transfer or assign any Intellectual Property Rights to you.
6.2 As between you and us, except in respect of Your Data, we own all Intellectual Property Rights in the App and the Services.
6.3 You have no rights in the App and the Services or any part of them or any in modification or enhancement thereof, other than the rights temporarily granted to you pursuant to this Agreement.
6.4 Any Intellectual Property Rights in any comments that you may provide to us in connection with the App and the Services or requests for new features (each, an Improvement Suggestion) becomes our sole and exclusive property immediately upon you uploading or posting that Improvement Suggestion to the App and the Services or otherwise providing the Improvement Suggestion to us, and you hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to us effective as soon as you provide each Improvement Suggestion to us or upload or post an Improvement Suggestion to the App and the Services. You agree to waive your moral rights arising under the relevant copyright laws in Australia, United Kingdom and United States in relation to the Improvement Suggestions and, so far as is legally possible, any broadly equivalent rights you may have in any territory of the world. You agree to execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this assignment. In this Agreement, “Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
7.1 You may not make any use of the App and the Services except as permitted by this Agreement. You must not, under any circumstances, sell or resell access to the App or Services or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicense, copy or duplicate the App or Services or any content you obtained via the App or Services (other than Your Data). In addition, you must not, nor may you permit any person to:
7.2 You must not use the App or the Services or any part of them in any way that breaches this Agreement and/or any statute, regulation, law, or legal right of any person.
8.1 The following use of the App and the Services is strictly prohibited under this Agreement (Acceptable Use Policy):
9.1 We do not accept responsibility for the conduct of any User.
9.2 If you believe that another User has breached this Agreement, please contact us.
9.3 You are jointly and severally responsible for all acts and/or omissions and breaches of any Users that are linked to your User Account via the App.
9.4 Any dispute you have with another User is between you and the other User. You agree that we are not responsible for the conduct of any other User or the content uploaded by or on behalf of any other User into the App.
9.5 We do not represent, recommend or endorse any websites we have linked from the App via hyperlink or otherwise.
9.6 We may check content entered into or uploaded into the App from time to time, but we do not review or moderate all content. If we become aware of content that breaches our Acceptable Use Policy, we will remove the content and send an email to the User explaining why it was removed.
9.7 You are solely responsible for and shall pay any costs we incur in connection with any claims and/or complaints made by any third party where the claim is caused directly or indirectly by your use of the App or the Services.
10.1 This End User Licence Agreement is an agreement between you and us and not between you and Apple Inc. (Apple) or you and Google Inc. (Google). As between Apple Inc. and us, and between Google Inc. and us, we are solely responsible for any product warranties pertaining to the App, whether express or implied by law, to the extent not otherwise effectively disclaimed under this Agreement.
10.2 In the event of any failure of the App to conform to any applicable warranty and where the warranty relates to your use of a version of the App downloaded through the Apple App Store, you may notify Apple, and Apple will refund the purchase price for the App to you (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty or obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be our sole responsibility, subject to the provisions of this Agreement.
10.3 Subject to the terms of this Agreement, you and we each acknowledge that, as between you and us, we, and not Apple or Google, are responsible for addressing any of your claims relating to the App or your possession and/or operation of the App, including, but not limited to: (i) product liability claims made in respect of the App; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
10.4 Notwithstanding the provisions of this clause 10, and for the avoidance of doubt, you agree:
10.5 You and we each acknowledge that neither Apple nor Google have any obligation to furnish any maintenance or support services with respect to the App.
10.6 You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or the U.S. Government has designated that as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
10.7 You and we each acknowledge and agree that Apple and Google, and Apple’s and Google’s respective subsidiaries, are third party beneficiaries of this Agreement and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
11.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with this Agreement, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
11.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
11.3 If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
11.4 We are not liable for business losses. We only supply the App to you for domestic and private use.
11.5 You and we are not liable to each other for any breach of this Agreement to the extent that the breach is caused or contributed to by any act, event, omission, accident or circumstance beyond the party’s reasonable control (Force Majeure Event).
11.6 The information displayed on the App is not professional or medical advice. You will seek all appropriate medical and other advice as applicable before relying on any information you obtain from the App.
11.7 To the extent permitted by law, we do not represent that the information on the App, including the Wellbeing Materials made available to you, is accurate, correct, up-to-date or error-free.
11.8 We are not liable to You for any indirect, special or consequential loss or damage incurred or which may be incurred by You, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data, except to the extent caused by Our intentional breach of this Agreement.
Non-excludable Guarantees for Australian Users
11.9 Any goods and services supplied by TogetherAI Australia through the App to Users who are residents in Australia (which, for the avoidance of doubt, includes the App and the Services supplied by us but does not include goods or services supplied by any User to any person) may come with implied non-excludable guarantees (Non-Excludable Guarantees) which are regulated by Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the ACL). The Non-Excludable Guarantees depend on whether you are a ‘consumer’ of goods or services within the meaning of that term pursuant to the ACL as amended.
11.10 Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), we will not have any liability to Users resident in Australia for any loss or damage howsoever incurred in relation to your use of or inability to use the App and the Services in excess of $200 (in the aggregate).
11.11 If the goods or services that TogetherAI Australia supplies to Users resident in Australia are subject to a Non-Excludable Guarantee and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the ACL, we limit our liability for breach of any such Non-Excludable Guarantee (other than a guarantee implied by sections 51, 52 or 53 of the ACL) or expressly given by us to you, in respect of each of the goods and services, where it is fair and reasonable to do so, at our option, to one or more of the following:
11.12 Any warranty against defects provided by us to you in your capacity as a consumer under the ACL is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
12.1 We may terminate this Agreement and your access to the App and the Services by notice to you if a Force Majeure Event continues for 30 days, if you breach any material term of this Agreement, if we discontinue the operation of the App and/or at any other time as determined by us. Termination of this Agreement and access to the App and the Services does not affect any accrued rights of either party.
12.2 We may take down or take offline the App and the Services or any part of it at any time without notice for technical support purposes or where reasonably necessary to protect our legitimate commercial interests.
12.3 You may terminate this Agreement and your access to the App and the Services at any time by closing your User Account.
13.1 Any notice issued to you from us or us to you shall be in writing and sent by email to the email address that you notify us of, or via the App.
13.2 You may send a notice to us at email@example.com.
13.3 Any notice issued via email is deemed to be delivered upon receipt by the sender of an electronic read receipt or delivery receipt or upon confirmation from the recipient.
13.4 We may send you emails or other electronic messages concerning this Agreement, your User Account and/or the App from time to time.
14.1 Other rights: All rights not expressly granted to us in this Agreement are expressly reserved by us. Even if we delay in enforcing this Agreement, we can still enforce this Agreement later. If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breaching this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
14.2 Amendment: This Agreement may be amended by us at any time. We will notify you of the amendments in writing or via email (Amendment Notice). If you do not agree to the amendments, you can terminate your use of the App by providing written notice to us within thirty (30) days from the date of the Amendment Notice.
14.4 Survival: Any rights or obligations that, by their nature, survive termination of this Agreement shall so survive, including any provision dealing with Intellectual Property Rights, liability and jurisdiction.
14.5 Severability: If any part of this Agreement is deemed invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain enforceable.
14.5 Severability: If any part of this Agreement is deemed invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain enforceable.