Terms and Conditions of Use

Effective Date: 10 January 2019

Lucky Health Pty Ltd (ACN 613 773 149) (‘Lucky Health’, ‘we’, ‘us’, or ‘our’) is an Australian technology company specialising in the provision of an innovative mobile application designed to assist end users to manage and adhere to their treatment plans in a positive, effective and rewarding way (Perx App) and other health and wellbeing services made available through the Perx App and other online platforms and websites provided by Lucky Health (collectively the Services). We have services agreements with a number of organisations including insurers, pharmaceutical companies and medical providers (Commercial Partners) pursuant to which we make the App available for use by people like you. We also have arrangements with a number of business partners for the provision of rewards (such as discounted goods or services) to users based on reported adherence through the Perx App (Rewards Partners). Despite any relationship you may have with one of our Commercial Partners or Rewards Partners, you acknowledge that your access to and use of any of our Services including the Perx App is governed solely and exclusively by us in accordance with these Terms and Conditions of Use (Terms) which shall form a legally binding agreement between you and Lucky Health Pty Ltd.

You should review these Terms carefully before using the App. By indicating your acceptance to these Terms by clicking in the checkbox below, or by continuing to use the Perx App, you acknowledge and agree that you have had an opportunity to read and understand these Terms and our Privacy Policy [insert link to Privacy Policy] and you agree to be bound by their terms and conditions. If you do not agree with the all of the terms contained in these Terms or our Privacy Policy, you should not access or use our Services.

You acknowledge that we may amend these Terms from time to time. Any changes will be notified to you by email to the email address provided by you to us (if any) and also via a notification in the Perx App. If you do not accept the changes to the Terms you cannot continue to use the Perx App. By using the Perx App or our Services, you agree that the then current version of these Terms applies to your use of the Perx App and our Services.

1. About the Perx App

Welcome to the Perx App. The Perx App facilitates interactions between:

  • you;
  • our Commercial Partners ;
  • our Rewards Partners; and
  • us,

making it easier for you, Commercial Partners, Reward Partners and us to communicate with each other and deliver our Services in a fast and secure manner.

The Perx App allows individuals with a registered user account (Members) to access and use our Services. The Perx App offers, among other things, a convenient way to set reminders for prescription medications and other health care activities, to receive tailored information about your medical condition, as well as the opportunity to participate in our Perx Rewards Program.

2. The Service

In order to access the Services, you are required to register for a user account (Account) through the Perx App or via a web portal on our website. Typically, your access to the Perx App as a Member will be authorised via the Commercial Partner that has enabled your access, and therefore your ongoing use of the Perx App through your Account is subject to the relevant Commercial Partner maintaining your Account access on your behalf.

As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:

  • an email address;
  • a preferred username;
  • a password;
  • certain health information, including your medical conditions, prescribed medications, medication schedule; and
  • health insurance and/or pharmacy details or such other identifier or signup code as is provided by the Commercial Partner that authorises your access.

You warrant that any information you give to Lucky Health in the course of completing the registration process or at any other time is accurate, correct, complete and up to date. You must also update the information you have uploaded into the Perx App where such information changes at any time. You also acknowledge that as a Member, the “username” you create when using the Perx App in your profile is visible to other users of the Perx App.

Once you have completed the registration process, you will be a Member and will be bound by these Terms. You may not use the Services and may not accept the Terms if you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

3. Your obligations as a Member

As a Member, you acknowledge and agree that:

  • you will not share your Account with any other person;
  • you will use the Perx App and our Services only for purposes that are permitted by:

    • these Terms; and
    • any applicable law;
  • you have sole responsibility for protecting the confidentiality of your signup code, password, passcode and/or email address. Use of your password by any other person may result in the immediate cancellation of your Membership;
  • any use of your registration information by any other person is strictly prohibited. You agree to immediately notify Lucky Health if you become aware of any unauthorised use of your password or your email address or any breach of security;
  • you must not expressly or impliedly impersonate another Member or use the Account or password of another Member at any time;
  • any content that you broadcast, publish, upload, transmit, post or distribute on the Perx App (Your Content) will:

    • be accurate, correct, complete and up to date;
    • not contain viruses or similar that may cause damage to our property or the property of other individuals or otherwise violate the security of the Perx App;
    • not contain any unauthorised material, which includes but is not limited to material that we believe would be likely to cause annoyance or harm, or which is intimidating, threatening, racist, defamatory, pornographic, or which is or may be detrimental to our systems or a third party’s systems or network security.
  • you will not harass, impersonate, stalk or threaten another Member (where interaction with other Members is made available to you);
  • access and use of the Perx App is limited, non-transferable, non-sub licensable and allows for the sole use of the Perx App by you for the purposes of receiving the Services;
  • you will not use the Services or the Perx App in connection with any commercial endeavours;
  • you will not use the Services or the Perx App for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Perx App;
  • commercial advertisements, affiliate links and other forms of solicitation may be removed from Member profiles without notice and may result in termination of your Membership.
  • any automated use of the Perx App or the Services is prohibited.

Appropriate legal action will be taken by Lucky Health in respect of any use of the Perx App that breaches the above terms.

4. Your Content and Data

In order to obtain the full benefit of the Services you will be required to input into the Perx App certain information including your medical conditions, medications, prescription schedule, health insurance policy and pharmacy details which will all form part of Your Content. By submitting any information, data, materials or other content to us through the Perx App, or otherwise permitting its collection from you, you are granting to us and our Commercial Partners and Rewards Partners, a licence to store, use, modify, display, manipulate and create derivative works using Your Content for the sole purpose of providing our Services to you.

You are solely responsible for ensuring that Your Content is accurate, complete and up to date and Lucky Health is not responsible for the consequences of any inaccuracy in Your Content whether or not that inaccuracy was caused or contributed to by Lucky Health. You are responsible for managing your condition and medication regime and in the event of any uncertainty you should consult your healthcare provider.

You can remove any of Your Content by deleting it from the Perx App. If you are unsure how to do this please contact us at support@perxhealth.com.au. In certain instances, some of Your Content may not be completely removed and copies of Your Content may continue to exist on the Perx App and/or elsewhere. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of Your Content on the Perx App.

5. Copyright and Intellectual Property

Unless otherwise indicated, we own, or licence from third parties, any and all right, title and interest (including as the case may be any copyright, designs, patents, trademarks and other intellectual property rights) in the Perx App and in all of the material (including but not limited to information, text, graphics, logos, button icons, video images, audio clips, application, code, scripts, design elements and interactive features) made available on the Perx App or as part of providing the Services (Lucky Health Content).

Lucky Health grants to you a worldwide, non-exclusive, non-sub-licensable, revocable license whilst you are a Member to:

  • use the Perx App and view the Lucky Health Content only in accordance with these Terms;
  • copy and store the Perx App and any Lucky Health Content contained in the Perx App in your device’s cache memory or on its hard drive; and
  • print pages from the Perx App for your own personal and non-commercial use.

Lucky Health does not grant you any other rights whatsoever in relation to the Lucky Health Content, the Perx App or the Services. Nothing you do on or in relation to the Perx App will transfer any Lucky Health Content or any other intellectual property rights of Lucky Health to you.

You may not, without the prior written permission of Lucky Health and the written permission of any other relevant rights owners, broadcast, republish, upload to a third party, transmit, communicate, post, distribute, show or play in public, adapt, change in any way or reverse engineer the Lucky Health Content, the Lucky Health IP, the Perx App or the Services or any third party content displayed on the Perx App for any purpose, unless otherwise expressly provided by these Terms.

6. Perx Rewards Program

Background:

As part of our Services, we may make available a reward program (Reward Program) to you, where you may be eligible to receive rewards such as gift cards, charity donations made on your behalf to nominated charities and other items (collectively, Rewards) by performing certain actions related to your medication or healthcare regime (Rewarded Actions) and recording your performance of those actions on the Perx App. Rewarded Actions may include verifying through the Perx App that you have taken your medications according to your medication schedule, the performance of other prescribed healthcare and health related activities, and other in-app actions.

We offer different Reward Programs to different Commercial Partners and their Members. Where your access to our Services has been authorised by one of our Commercial Partners the Reward Program made available to you will be the Reward Program agreed with the Commercial Partner with whom you are associated. If you are not associated with one of our Commercial Partners then we will assign a Reward Program to you at our sole discretion.

Reward Program Terms:

We reserve the right to determine, in our sole discretion, whether a particular action qualifies as a Rewarded Action for the purposes of the Reward Program. After completing a Rewarded Action you may be automatically entered into an instantaneous simulated game which takes place within the Perx App and gives you the opportunity to receive a Reward from one of our Rewards Partners (Reward Game). Reward Games are provided by Lucky Health and each, but not every, Reward Game may include a Reward, whereupon a Reward will instantaneously be credited to your Account. Your entry into and participation in the Reward Program and any Reward Game is subject to the following terms and conditions:

  • NO ENTRY FEE. NO PURCHASE NECESSARY TO ENTER OR WIN. ANY REWARD OBTAINED IS VOID WHERE YOUR PARTICIPATION IN THE REWARD PROGRAM IS PROHIBITED UNDER THESE TERMS;
  • in order to participate in the Reward Program and accrue Rewards you must be at least 12 years of age and be a valid Member with a registered user account;
  • your eligibility for a Reward is based upon your history of Rewarded Actions and the Rewards you have previously received through our Services. Lucky Health reserves the right, in its sole discretion, to disqualify you from receiving Rewards at any time;
  • each Reward Game is conducted by a computer program and the results are final and binding;
  • The Rewards provided in Reward Games will depend on many factors, including the types of Rewards that you have unlocked in the App, the types of Rewards available in Your Reward Program, and the availability of each type of Reward
  • The total value of Rewards that you are eligible to receive (Maximum Reward Allocation) is determined by Lucky Health in its sole discretion. The Maximum Reward Allocation may vary depending on the particular Reward Program that you are enrolled in. If you complete all Rewarded Actions then you will receive the Maximum Reward Allocation.
  • Increasing the number of Rewarded Actions available to you will not increase the value of your Maximum Reward Allocation or the number of Rewards that you will earn. For example, scheduling additional medication actions will not change the Maximum Reward Allocation in your Reward Program.
  • The actions of other Members, do not influence the value of Rewards available to you nor the likelihood of you earning a Reward for completing a Rewarded Action.
  • if you earn a Reward, you will be notified immediately via the Perx App and the Reward will be available for your redemption in the Perx App;
  • If you cannot be contacted, are ineligible or fail to claim a Reward within seven (7) days of the Reward Game, the Reward may be forfeited;

Please note that you may be required to provide additional information to Lucky Health or a Rewards Partner in order to redeem certain Rewards, and processing fees may also be applicable to the redemption of Rewards.

We will use reasonable efforts to ensure that any Rewards that you obtain through participation in a Reward Game are viewable via your Account within 7 days. You should contact us if it has been more than 7 days and the Rewards have not been applied to your Account. We may also, at our discretion, delay any Reward redemption in order to validate or verify your actions via the Service.

You acknowledge and agree that:

  • rewards are not transferable and can only be used in accordance with these Terms and any terms and conditions specified by the Rewards Partner who makes the Reward available;
  • rewards are not redeemable for any sum of money or monetary value, or exchangeable in any other way;
  • substitution of Rewards is not permitted, except at the sole discretion of Lucky Health for a Reward of equal or greater value;
  • we are not responsible or liable for any unredeemed, unused or lost Rewards;
  • rewards may expire 6 months after the Rewards are earned via the Service. We reserve the right to issue Rewards that may have a longer or shorter expiration date, and to remove Rewards from your Account and cancel them to correct errors or if we believe you were not entitled to receive the Reward. You will not be provided with notice of expiration, forfeiture or removal of rewards, and you are not entitled to any compensation where this occurs;
  • you are solely responsible for any and all federal, state and local taxes, if any, that apply to Rewards earned through the Reward Program;
  • not all Rewards Partners you see represented in our Perx Reward Program are sponsors of Perx or otherwise affiliated with Lucky Health. The logos and other identifying marks displayed in the Perx App or as part of our Services are trademarks of and owned by each represented company and/or its affiliates;
  • the Perx App runs on various mobile devices, including Apple Inc’s iPhone, and devices running Google Inc’s Android operating system. Neither Apple Inc, nor Google Inc, nor any of their subsidiaries, nor any third-party mobile device manufacturer is a sponsor of the Perx Reward program. None of them are involved in any way with the Reward Program, the Rewards or responsible for the mechanics of the Rewarded Actions; and
  • Lucky Health may modify or discontinue the Reward Program, or any Rewards related thereto at any time.

The Rewards Program is subject to these Terms (including the provisions of this clause 6) and all applicable, federal and state laws and regulations that may apply.

Redemption and Use of Rewards:

While your participation in the Reward Program and each Reward Game is governed by these Terms, your redemption and use of any Reward will be governed by the terms and conditions of redemption/usage as stipulated by the relevant third-party Rewards Partner at the time the Reward is provided to you. You agree that Lucky Health is not responsible for any third-party Reward terms and conditions, and disclaims any and all liability relating thereto. Your participation in the Rewards Program and your use of any Rewards is at your own risk.

7. Privacy

Lucky Health takes your privacy seriously and any information provided through your use of the Perx App and/or Services is subject to Lucky Health’s Privacy Policy By accepting these Terms and continuing to use the Perx App you hereby expressly consent to the terms of our Privacy Policy, incorporated here by reference.

Lucky Health reserves the right to offer optional additional services to you via the Perx App that are relevant to your health and wellbeing, including:

  • additional information and training about your medication and health condition;
  • services offered by your relevant Commercial Partner, chosen pharmacy or doctor or other health care provider; and
  • information regarding joining a clinical research program, and

you acknowledge that the information you may receive in relation to these optional additional services will be matched and targeted to your condition or drug profile. You may opt out of the additional services at any time by emailing us at support@perxhealth.com.au.

8. Exclusion of Warranties and Disclaimer

The Perx App and all Lucky Health Content is provided to you “as is” and on an “as available” basis. To the maximum extent permitted by law, Lucky Health expressly excludes all representations, warranties, guarantees and endorsements, whether express or implied, in relation to the Perx App and any Lucky Health Content, including, without limitation any warranty that:

  • the Perx App will meet your requirements or expectations;
  • you will receive continuous, uninterrupted or secure access to the Perx App or that its servers are free of computer viruses, bugs or other harmful components or that any defects with the Perx App will be corrected within a reasonable time; or
  • any Lucky Health Content or other information obtained via the Perx App (including any Consumer Medicines Information sourced from pharmaceutical manufactures or government databases) will be accurate, complete, reliable, up to date and suitable for your own individual purposes,

and accordingly, you use the Perx App at your own discretion and risk and will be solely responsible for any loss or damage of any kind that you suffer as a result of or in connection with any disruption or other difficulties you experience in using the Perx App or arising from your reliance on any Lucky Health Content or other information obtained via the Perx App.

IMPORTANT: ALL LUCKY HEALTH CONTENT AND OTHER INFORMATION MADE AVAILABLE ON THE PERX APP IS FOR INFORMATION PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE ADVICE OF A QUALIFIED HEALTHCARE PROFESSIONAL. WE STRONGLY RECOMMEND YOU CONSULT WITH A QUALIFIED HEALTHCARE PROFESSIONAL PRIOR TO USING THE PERX APP, PARTICULARLY IF YOU HAVE A PRE-EXISTING MEDICAL CONDITION. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE READ ON THE PERX APP OR THE MEDICAL HISTORY YOU RECEIVE THROUGH OUR SERVICES. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH YOUR MEDICATION REGIME.

9. Limitation of Liability

To the maximum extent permitted by law and except where the relevant liability arises as a result of fraud or wilful misconduct on the part of Lucky Health, Lucky Health hereby excludes all liability to you for any loss or damage (including, without limitation, direct, incidental, indirect, consequential, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue, profit or loss or corruption of data) arising out of:

  • your access to, or use of, or inability to access or use the Perx App;
  • your use of, or reliance on, the Lucky Health Content or any other information made available on the Perx App or as part of the Services; or
  • any errors or omission in the Lucky Health Content or any other information made available on the App, whether or not we are aware of such errors and omissions,

howsoever caused and whether arising in contract, tort, under statute or otherwise.

We acknowledge that certain legislation including the Australian Consumer Law, may imply warranties or conditions or impose obligations, remedies or guaranties which cannot be excluded, restricted or modified by law. To the extent that such legislation applies, these Terms must be read subject to those statutory provisions. If those statutory provisions apply, notwithstanding any other provision of these Terms, and to the extent permitted by law, Lucky Health limits its liability pursuant to those provisions to the resupply of the Services or the payment of the cost of having the Services supplied again.

Lucky Health’s liability in connection with the Services is reduced proportionately in the event that you contributed to any claim or loss suffered by you.

10. Indemnity

You agree to indemnify Lucky Health, its affiliates, employees, agents, contributors, third party content providers, licensors and any Commercial Partner or Reward Partner from and against any and all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:

  • any use or misuse of the Perx App, the Lucky Health Content and/or Your Content by you or any other person accessing the Perx App using your Account or password;
  • any breach of the Terms or of any intellectual property or other right by you or any other person accessing the Perx App using your user account or password; and
  • any breach of an applicable law, regulation or licence arising from your use of the Perx App or from the use of the App by any other person accessing the Perx App using your Account or password.
11. Third Party Interfaces

The Perx App may provide technology tools and communications platforms between Lucky Health, third-party partners (such as Commercial Partners and Rewards Partners) and you. Lucky Health disclaims any responsibility for any third-party communications, including:

  • communications between you and a third-party partner/Commercial Partner/Reward Partner; and
  • misconfiguration between any of the Perx App, Commercial Partner, pharmacies and government medication databases.

The Perx App may be provided with third-party plug-ins or other third-party software, or this may be provided as a plug-in for, or otherwise in association with, third party software. Use of any such third-party software will be governed by the applicable license agreement, if any, with such third party. Lucky Health is not responsible for any third-party software and will have no liability of any kind for your use of such third-party software and makes no warranty of any kind with respect to such third-party software.

12. Changes to the Perx App

We may, from time to time and without notice, change, add to or remove all or any part of the Perx App or the information contained on it. In the event that we make changes to the Perx App, your access to the Perx App and any information contained on it may be limited or unavailable on a temporary or permanent basis. We will not be liable to you or any third party for any loss such suspension, termination, change or discontinuance may cause. We reserve the right to cease operating the Perx App at any time and for any reason.

13. Termination of these Terms

You may suspend your use of the Perx App at any time by deleting it from your device. If you want to terminate these Terms and your Membership, you may do so at any time by emailing support@perxhealth.com.au.

Lucky Health may, at any time, suspend or terminate these Terms and/or your Membership if:

  • you have breached any provision of the Terms, or Lucky Health reasonably suspects that you have breached these Terms (in its absolute discretion);
  • Lucky Health forms the view, in its absolute discretion, that your use of the Perx App and the Services may result in harm to your health and wellbeing;
  • Lucky Health is required to do so by law;
  • Lucky Health is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the Service;
  • the provision of the Services to you by Lucky Health is, in the opinion of Lucky Health, no longer commercially viable; or
  • if you are eligible to access the App based on your membership of, or relationship to, an organisation that is one of our Commercial Partners, and you stop being a member of, or having any relationship to, that organisation or if you no longer qualify for the Perx App under that organisation’s policies and procedures.

When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Lucky Health have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely. Any indemnities are intended to survive termination of these Terms.

You are not entitled to a refund or compensation upon suspension or termination of these Terms or your Membership unless otherwise required by law.

14. Dispute Resolution

Compulsory Dispute Resolution:

If a dispute arises out of or relates to these Terms, neither party may commence any tribunal or court proceedings in relation to the dispute, except in accordance with this clause 19 (unless urgent interlocutory relief is sought).

Notice:

A party to the Terms claiming a dispute (Dispute) has arisen under the Terms must, within 14 days of the Dispute arising, give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute (Notice).

Resolution:

On receipt of the Notice by that other party, the parties to the Terms (Parties) must:

  • within 10 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
  • if for any reason whatsoever, 10 days after the date of the Notice, the Dispute has not been resolved, the Parties must either appoint a mediator by agreement or request that an appropriate mediator be appointed by the Chair of the Resolution Institute (ABN 69 008 651 232) or his or her nominee;

The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation. The mediation will be held in New South Wales, Australia.

Confidentiality:

All communications concerning negotiations made by the Parties arising out of or in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

Termination of Mediation:

If 8 hours have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

15. Governing Law

The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be exclusively governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

16. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

17. Assignment

The rights and obligations of Members under these Terms are personal. You may not assign, encumber or otherwise deal with such rights and obligations without the prior written consent of Lucky Health. Lucky Health may assign, encumber or otherwise deal with its rights and obligations under these Terms at any time without notice.

18. Entire agreement

These Terms embody the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all other agreements and understandings concerning the subject matter of these Terms and any warranty, representation, guarantee or other term and condition of any nature not contained in these Terms is of no force or effect.

19. Waiver

A single or partial exercise or waiver of a right relating to these Terms will not prevent any other exercise of that right or the exercise of any other right.

A party will not be liable for any loss, cost or expense of any other party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.