Kick.it Operations Pty Ltd

Terms and Conditions of Use

The following Terms form a legally binding agreement between You and Us in relation to Your access to, and use of, the Site and Application. In accessing or using the Site and Application, You acknowledge that You have read and understood, and agree to be bound by, these Terms. If you do not accept these Terms, then do not access or use the Site or Application. By clicking “I Agree” or by using the Site or Application (which includes this version and other update or feature that we may provide) You agree to the following Terms, so You should read these carefully.

Eligibility

By using the Service You represent and warrant that You are at least 18 years old. If You are accepting these Terms on behalf of a company, organisation, educational institution, or agency instrumentality or department of a government (an “entity”) as its authorised legal representative, then You represent and warrant that You have the power and authority to bind such entity to these Terms.

Privacy Policy

Our privacy policy is set out on the Site and shall apply to You and Your use of Our Service at all times.

Ownership

All of the Content on the Site and Application is owned by Us, Our licensors or suppliers, You are authorised to view and use the Content for personally, informational and non-commercial purposes only. You may not copy, distribute, transmit, display, perform, reproduce, publish, licence, create, derivative works from, transfer or sell any Content. The Content shall remain the exclusive property of Us or Our licensors or suppliers unless otherwise expressed by Us.

User Account and Registration

Using the Application, or using the functions of the Site, may require you to open an account. To do so, You must complete the registration process found through the Application or Site to become a Registered User. By opening an account and becoming a Registered User you agree that all information You provide to Us is accurate and up to date and does not infringe any other person’s rights. You are responsible for and must update Your account details if any of them change.

You are responsible for all of the activities that occur under Your account and You are responsible to maintain the confidentiality of your password and user name. You should therefore carefully choose Your password and user name and protect them from unauthorised use. Please let Us know immediately of any unauthorised use of Your account or any other breach of security. If someone else uses your password or account, We will not be liable for Loss from that use but You could be held liable for Losses suffered by Us or another party due to someone else using Your account or password.

We reserve the legal right to refuse or cancel, suspend, terminate accounts, and/or remove or edit content in our sole discretion. Subject to any requirements under privacy legislation, We will co-operate with any legal order, direction or request to disclose the identity or other information relating to anyone violating or suspected of violating these Terms.

Fees

If You download the Application You may have to pay a fee. This fee will give you access to the Application and Our Service. If You do not pay the fee You may not have access to all parts of the Service that We can offer to You. Other features of Our Application, Our Site or Our Service may only become available and accessible to You upon the payment of an additional fee by You once the Application has been accessed by You, and any such feature may be subject to renewal fees which will be accessible through Our Application or Our Site.

You acknowledge that the continued availability of any such feature of Our Application, Our Site or Our Service may be at the discretion of the continued payment of such additional fees.

Any fee can be changed at any time by Us. You may upgrade Your account at any time to have access to all parts of the Service.

Information You provide to Us

When You use the Application You may send personal information to Us or We may get access to that information from You using the Application. If You open an account You must provide Us with personal information (including, without limitation, Your name, email address, mailing address, phone number, unique identifiers such as user name, account number and password, health information, such as years smoked and cigarette intake and device information). We will use, store and handle this information in accordance with the requirements of the Privacy Act 1988 (Cth) that apply to Us and Our privacy policy which may be accessed at kick.it/privacy

We do not claim ownership of this personal information. You will continue to own any and all Intellectual Property rights in such information. However, You agree and grant Us a perpetual, non-exclusive, assignable, worldwide and royalty free licence (with a right to sub-licence) to use, store, reproduce, communicate, publish, display or distribute such information in an anonymous manner. This continues even if you no longer use the Application. We will only use this information for the purposes of operating, promoting and improving the Service, for developing other related or supplementary products or services, and for any other purposes set out in Our privacy policy.

If You would like to know more about how We use, store or handle Your personal information, please contact Us.

Outcomes and use

We have spent a significant amount of time developing and refining the Application. However, we cannot promise or guarantee any specific outcomes from its use, or that using the Application is appropriate for your particular circumstances. The use of the Application should not be a substitute for qualified medical advice or assistance. Neither the Application nor Us are a medical organisation and We cannot give medical advice or diagnosis. The information made available through the Site, Application or Services should not be interpreted as a substitute for physician consultation, evaluation, or treatment. If you have questions or concerns about individual health matters, You should seek the advice and services of a qualified medical and/or health professional.

The Application is only one of a number of tools that, in conjunction with qualified medical advice and assistance, aims to contribute towards positive behaviour change. Your use of the Application does not establish a doctor-patient relationship between You and Us.

You acknowledge that the Application is being provided on an “as is” and “as available” basis, with no express or implied warranties or guarantees to the extent permitted by law.

You acknowledge and agree that the Application is at an early stage of development. Therefore, although we have used Our best endeavours to make the Application and Site as bug-free and defect-free as possible, You acknowledge that there may be occasional loss of functionality and access. You further acknowledge that since the Application is being tested, it is not intended to be the reasonably fit for any particular purpose or that it will achieve any particular result or objective.

How Kick.it works

Kick.it is an evidence-based smoking cessation platform that empowers smokers to kick the habit though peer, professional, medication and program based support. Kick.it uses the power of your social network and/or the network within Kick.it to encourage smokers to kick the habit. This support may be complimented by professional support. Kick.it also delivers programs “Missions” that give a smoker things to think about and do as they prepare for and go through the process of becoming smoke free. Kick.it may provide support to use nicotine replacement therapy (NRT). Kick.it allows a smoker to record their smoking behaviour to develop a unique smoking profile for each smoker with the intention of displaying this information back to them and using it to create a relevant program and interventions for them. Kick.it also delivers in-the-moment craving interventions via the Kick Stack that suggests different actions, education, entertainment and support content with the intention of helping the smoker to get through a craving.

Collection of location information

When users download and install the Application, they agree to the collection of data on the Site and Application and use of location based data. Location based data includes, without limitation: IP address, browser type, referring/exit pages, operating system, device type, domain servers, and other anonymous information that does not personally identify You. If You allow these services, We will collect information about the Wi-Fi routers closest to you and the cell IDs of the towers closest to You. We use this information to provide the requested location-based service, not to identify You. You will be asked for your permission each time a location-based service is requested.

Interactions between users

Users are solely responsible for their interactions with other users of the Application. We do not conduct background checks on users or attempt to verify the statements of users. We will not be liable for any damages that may arise from the conduct of any user in connection with the use of the application. By using the Site, Application or Services, You agree to take reasonable precautions in all interactions with other members of the Services. You knowingly and freely assume all risk when using the Services.

Smoking information

We are not responsible for any incorrect, inaccurate or unreliable information provided in the Application or Site. Users are solely responsible for making sure any smoking related information contained in the application is accurate, correct, and complete. You may not copy, duplicate, distribute, display, sell, translate, publish, transmit or modify any information contained within the application without the express consent from Us.

Service

By accessing and using the Site or Application, You assume all risks associated with such access and use.

We reserve the right, at any time, to disable, close or render the Site or Application inaccessible for so long as We desire for any reason whatsoever, and without the need to provide any reasons. To the maximum extent permitted by law, We do not accept liability for any Loss which You may suffer or incur as a result of such actions.

You must take Your own precautions to ensure that the processes taken by You to access the Site and Application does not expose You to the risks of Harmful Code. We will not be responsible if You are effected by Harmful Code.

External sites

In the Application and Site You may come across links or references to external merchants or suppliers. Please be aware that We do not make any promises about what they may supply to You. Therefore any transaction You have with these merchants are between You and these merchants, and We do not get involved. By accessing external website links to these merchants and other sites through Us, We do not promise that they are appropriate, that they work or that they are free from Harmful Code.

Changes to the Application or Site

We may change or improve the Site or Application at any time. For example we may develop and distribute updates, enhancements or new features.

We may also stop making the Application available or We may modify its availability in any way. We will always try to give You notice of any such changes in the availability of the Application or certain features provided by Us before they take effect, although this may not always be possible.

Intellectual property

All Intellectual Property in and to the Site, Application, the Services, Materials including any updates, enhancements and new features We provide are owned by Us.

Subject to and on the terms of these Terms We grant You a personal, worldwide, royalty-free, non-assignable and non-exclusive licence to use Our Intellectual Property the application in and to the Site, the Services and the Materials, to enable You to enjoy the benefits of Our Site, Application, the Services and the Materials as intended by Us under these Terms. This licence is solely to enable You to use and enjoy the Application and You may not copy, modify, distribute, sell or lease any part of Our Intellectual Property.

We and the licensors own all Our trade marks, branding and logos contained in, or relating to, the Application and You cannot use them for any purpose.

Prohibited uses

You agree that You will only use the Site and Application for lawful purposes. If You post any User Content You are responsible for that User Content You send or post.

You represent and warrant that you will not:

  • infringe the rights of any other person, including without limitation Intellectual Property rights;
  • defame another person;
  • disclose a person's confidential information;
  • provide false information, misleading or inaccurate information to Us or any other member;
  • impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity;
  • post User Content that is not accurate, complete or correct or may otherwise mislead or deceive other persons;
  • contravene Your privacy obligations or any other person's privacy obligations;
  • use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites;
  • attempt to probe, scan, or test the vulnerability of the Services, the Site, Application or any associated system or network, or breach security or authentication measures without proper authorization;
  • post any User Content that is illegal or may constitute or encourage any contravention of any Applicable Laws by any person;
  • threaten, offend or abuse or is intended or likely to threaten, offend or abuse another user; and
  • is otherwise, in our view, inappropriate or harmful to the Site or Application.

We may remove You from the Site or Application or refuse to display anything that we think is inappropriate or breaches these prohibited uses.

Ownership of User content

All Intellectual Property in and to Your User Content remains Your property. You unconditionally and irrevocably grant to Us, a worldwide, royalty-free, perpetual, transferable, non-exclusive licence (with the ability to sub-licence) to use, reproduce, copy, adapt, store, distribute, print, display, perform, broadcast, publish, communicate to the public, make available to the public or create derivative works of such User Content anywhere, for any purpose and in any form, without any compensation to You.

You acknowledge and agree that You are solely responsible for any User Content Posted by You. We do not guarantee any confidentiality or security in relation to any User Content. We also do not endorse, nor be responsible for, any User Content Posted by You.

In using Our Site, Application and Services, You represent, warrant and undertake to Us that:

  • all User Content Posted by You does not contravene any Applicable Laws;
  • all User Content Posted by You does not contain third party copyrighted material or material subject to third party proprietary rights (unless You have prior permission from the owner or You are legally permitted to Post such User Content);
  • all User Content Posted by You does not infringe the Intellectual Property rights of any person;
  • all User Content Posted by You will be free of Harmful Code; and
  • all User Content Posted by You will otherwise comply with these Terms.
Security and integrity

You must not violate the security of the Site or Application in any way. We may suspend or cancel Your account or Your access to the Site and Application if We suspect any security violation. We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include:

  • attempting to gain unauthorised access to any part of the Site or Application, servers or system infrastructure You were not intended to have access to;
  • use the Site or Application in a way that was not intended by Us;
  • attempting to reverse engineer the Site or Application or any system or offering provided through Us;
  • interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to Us;
  • sending or storing any Harmful Code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data); or
  • using any feature of the Site or Application or any other means to send unsolicited commercial correspondence to other users.
Amendments to and breaches of these terms

We reserve the right to amend these Terms at any time. We will try and notify You of Any amendments through the Site or Application, even when we cannot though Any amendments shall be effective immediately upon notification on the Site and Application. Your continued use of the Service following such notification after the changes take effect will represent that You are taken to have agreed to the changes.

If You do not comply with these Terms, We may suspend or cancel your user account or even take action against You.

Disclaimer

By accessing and using Our Site, Application, Services and Materials, You assume all risks associated with such access and use. Please note that as there are many factors beyond Our control that may affect the performance or compatibility of the Site and Application with certain software or hardware, We cannot promise that your use of the Site or Application will be uninterrupted or error or defect free or that errors or defects will be corrected. We also cannot promise that the use of the Application will achieve any particular purpose, although We believe that the use of the Application, along with other recommendations from Your qualified medical professionals, will significantly contribute towards positive behaviour changes.

To the maximum extent permitted by law, We (and our directors, employees and agents) do not accept any liability for, and You agree to release Us from any claim in relation to any Loss, howsoever caused, suffered or incurred by you arising from Your use of the Site and Application (including without limitation any consequential losses or damages) and any liability We owe is limited, to the maximum extent permitted under law, to the amount You paid to use the Application, or (if we choose) Us providing the service again.

Indemnity

You agree to indemnify, defend and hold Us (and our directors, employees and agents) harmless from and against all claims, liabilities, losses or expenses (including reasonable legal fees on a full indemnity basis) that arise from:

  • any breach of these terms by You;
  • any breach of any rights of a third party by You;
  • any breach of any applicable law by You; or
  • any transaction between You and another person that arises from or through Us.
Governing Law

These Terms are governed and construed in all respect in accordance with the laws of the State of South Australia, Australia and the parties hereby submit to the jurisdiction of the Courts of South Australia, Australia in respect of all matters arising under this Agreement or relating to this Agreement.

Further information

If You have any questions about the terms or would like any further information, please contact Us.

Definitions

In these Terms, unless the context otherwise requires:

Application means the Application called Kick.it that can be downloaded on mobile devices.

Applicable Laws means any and all statutes, regulations, by-laws, ordinances or subordinate legislation in force from time to time which pertains to Your use of, and access to, the Site and the Service and the Posting of any User Content on the Site and includes, without limitation, those relating to equal opportunity, anti-discrimination, trade practices, fair trading, Intellectual Property, privacy and confidentiality.

Content means all of the material featured on the Site and Application without limitation including all text, graphics, photographs, images, sounds and illustrations.

Harmful Code means any computer virus, trojan, worm or other computer code that, directly or indirectly, is harmful or disabling or which assists in or enables unauthorised access to or corruption of data.

Intellectual Property means any registered or unregistered rights in any copyrights, patents, inventions, discoveries, trade marks, processes, systems, methods, know-how, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.

Loss means loss or damage of any kind (including liability to a third party)

Materials means any content made available by Us via the Site or the Service (including but not limited to Our workbook, plans, guides, software, information data, documents, images, photographs, graphics, audio, videos, or webcasts).

Registered User means a Site User registered with the Service.

Service means the provision of products, software, data or Services on, from or through the Site or Application.

Site means the website operated by Us at www.kick.it

Site User means any person who has access to, or uses, the Site.

Terms means the agreement between You and Us comprising these terms and conditions.

User Content includes any text, content, information, software, scripts, graphics, photos, sounds, music, videos audio visual combinations, interactive features or other Materials that are submitted to Us, or Posted on the Site, by a Site User in your connection with Your use of Services or otherwise.

We, Us, Our means Kick.it Operations Pty Ltd ACN 603 860 993 and its related bodies corporate and associates (as defined in the Corporations Act 2001 (Cth)).

You, Yourself, Your means any person, business, company or organisation who is a Site User.