This End User Licence Agreement (EULA) is between You (Licensee, You and Your) and Get Tonic Pty Ltd ACN 620 784 714 (TonicApp, Licensor, We, Us and Our) (collectively called the Parties) and governs Your use of the prescription medicine delivery mobile application known as TonicApp (App) including but not limited to programs, functions, features, content, data, user interface, electronic documentation as well as all other material in relation to the App including but not limited to questions, answers, comments, notes, information, all health and medical related materials and personal health and medical information made available via the App (Content).
1. ACCEPTANCE OF THESE TERMS
1.1. By downloading, installing, operating or using the App, You acknowledge and agree to be bound by the terms and conditions of this EULA.
1.2. If you do not agree to be bound by the terms and conditions of this EULA you must not download, install, operate or use the App, or if you already have done this, you must immediately delete the App from your mobile device.
1.3. We reserve the right, at any time and from time to time, at Our sole and absolute discretion to update, revise, supplement or otherwise modify this EULA (Update the EULA).
1.4. Subject to clause 1.3, if We Update the EULA We will make a reasonable effort to notify You of this change when You access the App for the first time after such an update is made.
1.5. Subject to clause 1.4, Your continued use of the App will constitute Your acknowledgement and agreement to be bound by the Updated EULA.
2. LIMITED LICENCE
2.1. Subject to the terms and conditions of this EULA, We grant You a limited, non-exclusive, revocable, personal, non-commercial, non-sublicensable, non-assignable and non-transferable license (Licence) to download, install, operate and use the App solely for Your own lawful, non-commercial and personal use on any mobile device owned or controlled by You that can access the Android Market site and Google Play™ operated by Google Inc. or that can access the Apple App Store™ operated by Apple Inc. (Apple) (as the case may be).
2.2. If you download the App through the Apple App Store and/or Google Play, in addition to the terms set out here, your use of the App is also subject to Apple’s EULA or the Google Play Terms of Service depending on your compatible device. To the extent of any conflict between the Apple's EULA or Google Play Terms of Service, this EULA will prevail.
3. NOTICE REGARDING APPLE
3.1. You acknowledge and agree that this EULA is between You and TonicApp only and not with Apple.
3.2. Apple is not responsible for the App and the Content thereof.
3.3. Apple has no obligation to provide any maintenance and support services with respect to the App.
3.4. In the event of any failure of the App to conform to any applicable warranty, then You may notify Apple and Apple will refund the purchase price for the relevant App to You and to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App.
3.5. Apple is not responsible for addressing any claims by You or any third party relating to the App or Your possession and/or use of the App, including, but not limited to product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation.
3.6. Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that Your possession and use of the App infringes that third party’s intellectual property rights.
3.7. You agree to comply with any applicable third-party terms, when using the App.
3.8. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA, and upon Your acceptance of this EULA, Apple will have the right, and will be deemed to have accepted the right, to enforce this EULA against You as a third party beneficiary of this EULA.
3.9. You hereby represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and You are not listed on any U.S. Government list of prohibited or restricted parties.
4. PLACING ORDERS ON THE APP
4.1. When You successfully download and install the App on Your mobile device, you will be able to:
(a) take a phot of the prescription written by Your medical practitioner into the App;
(b) select either branded or generic medicine of the type prescribed by Your medical practitioner;
(c) place an order for the selected medicine at the agreed price;
(d) confirm that We are to deliver the medicine to You at Your nominated delivery address; and
(e) pay for the medicine and delivery using Your credit card.
4.2. You may order non-prescription medicine on the App by following the process outlined above, except that You will be required to photograph the item that you wish to order using the App.
4.3. You may take a photograph of any repeat prescriptions written by Your medical practitioner into the App and order further medicine by following the process outlined above.
4.4. The App has an automatic prescription expiry reminder function, which You can ‘opt out’ of should you choose.
4.5. We will endeavour to deliver Your order to You within the delivery period requested by You at the time You place the order on the App, provided:
(a) We are able to validate Your prescription;
(b) the medicine that You order is stocked by the relevant pharmacy;
(c) the relevant pharmacy is able to supply the medicine that You order in accordance with applicable dispensing guidelines; and
(d) We are able to lawfully deliver the medicine to You.
4.6. When our driver delivers the medicine to You, You will be required to provide to the driver Your original prescription for the medicine that You ordered on the App. If You do not provide the original prescription, We may be unable to supply the medicine to You in which case we will refund any amounts paid by You for that medicine and cancel the order.
4.7. By placing an order for medicine on the App, You hereby consent to Us:
(a) acting as Your agent for the purpose of collecting from the pharmacy the medicine that You ordered on the App;
(b) providing Your original prescription and any repeat prescription for the medicine that You ordered to the pharmacy that supplied Your medicine;
(c) storing Your prescription and any repeat prescription for the medicine that You ordered on our files; and
(d) storing Your prescription information (including your health and medical information) that you scan into the App, on our servers in electronic form.
4.8. We expressly disclaim liability for any loss, damage or claim arising out of or in connection with any prescription written by Your medical practitioner or Your use or misuse of any medicine purchased by You using the App.
5.1. The charges that You will pay to Us will comprise:
(a) the cost of the medicine that You order on the App;
(b) Our fee for delivering to You the ordered medicine supplied by the pharmacy; and
(c) any applicable Goods and Services Tax (GST),
(called the Charges).
5.2.We do not set or have any control over the cost of the medicine that You order.That cost is set by the pharmacy that will supply the medicine, and will be displayed in the shopping cart section of the App when you select the medicine that you wish to purchase.You will be required to confirm that You agree with the cost of the medicine when You proceed to the checkout section of the App and pay for Your order.
5.3.The amount of Our delivery fee will vary depending on where you live and the distance that We must travel to make the delivery to You.Our delivery fee will be displayed in the shopping cart section of the App when You select the medicine that You wish to purchase.You will be required to confirm that You agree with Our delivery fee when You proceed to the checkout section of the App and pay for Your order.
5.4. Payment for the Charges must be by credit card when You proceed to the checkout section of the App and confirm the order placed with Us.You expressly authorise Us to use Your credit card to pay the Charges. If you pay by way of an American Express or Diners Club card, then we may pass on to you the costs that we are charged for accepting payment of that payment type.We will not pass on costs that are higher than what it costed us to process the payment.
5.5. The Charges must be paid in the currency stated in the checkout section of the App.
5.6. If any supply made under or in connection with the App is a taxable supply, the consideration that the recipient of that taxable supply must otherwise pay or provide for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply, subject to a valid tax invoice being delivered to the recipient. Words or expressions used in this clause which have a particular meaning in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning, unless the context otherwise requires.
6. APP SUPPORT
6.1. If You require support in relation to downloading, installing, operating or using the App, you can either:
(a) Use the help desk function contained in the App to contact Us; or
6.2. Our support centre is available Monday to Friday 9am to 5pm and Saturday 10 am to 12 pm, or as otherwise indicated on Our website.
6.3. We will endeavour to respond to requests for support within 12 hours, but do not warrant or guarantee that we will be able to do so.
7. TERM, TERMINATION AND SUSPENSION
7.1. The EULA will commence when You install the App on Your mobile device, and will remain in effect until terminated by You or Us.
7.2. We reserve the right to immediately terminate, suspend or disable the App; suspend or terminate the EULA; suspend or terminate or limit the Licence and/or Your rights thereunder at any time, with or without cause, for such period or periods as We determine in our absolute discretion.We will make a reasonable effort to notify You of any action We take under this clause, but are not obliged to do so.
7.3. You may terminate this EULA at Your sole and absolute discretion at any time by uninstalling and discontinuing Your use of the App.
7.4. This EULA will terminate immediately and without any further notice if You fail to comply with any provisions of this EULA.
8. INSTALLATION, UPDATES AND MAINTENANCE
8.1. You acknowledge and agree that:
(a) The App requires a compatible 3G or higher enabled mobile device with internet connectivity and access to the Android Market site or Google Play™ operated by Google Inc. or the Mac Apple App Store™ and Apple App Store™ operated by Apple;
(b) Your use of the App may incur internet data charges, may involve the downloading of images, content and other items that may attract internet data fees and will consume the battery charge of Your mobile device;
(c) The App does not provide for international roaming, and You may incur international roaming charges if the App or Your mobile device is used outside Australia;
(d) The continued availability of the App, and Content provided through the operation and use of the App, may be subject to external factors out of Our control including but not limited to routine maintenance, malfunction in equipment, hardware or software, internet access, and delay or failure of transmission;
(e) We may modify or update the App at any time without notice including but not limited to disabling or enabling certain features or functionalities of the App, introducing new features and functionalities to the App, bug fixes, error corrections, and workflow and design changes;
(f) We may, but We are not obligated to, provide maintenance and technical support for the App from time to time and We may suspend, terminate or disable some or all of the features and functionalities of the App in order to provide such services (if any) at any time without notice;
(g) As part of the App installation process Your mobile device settings may change and You acknowledge that by installing the App You approve any such changes to Your mobile device settings;
(h) You may be required to download the latest version of the App from time to time including but not limited to any updates. It is Your responsibility to ensure that You are using the most up to date version of the App at any given time; and
(i) By downloading and using the most up to date version of the App You acknowledge and agree to be bound by the then current terms and conditions of this EULA.
9.1. You acknowledge and agree that this App will be used by You for Your sole lawful, non-commercial and personal use only.
9.2. You must not and You must not permit others to:
(a) reverse engineer, decompile, decode, decrypt, disassemble or in any way derive source code or codes from the App;
(b) modify, translate, adapt, alter, or create derivative works from the App and the Content;
(c) copy, distribute, publically display, transmit, sell, rent, lease or otherwise exploit the App and the Content;
(d) distribute, sublicense, rent, lease, loan or allow any third-party access to or use of the App and Your Content;
(e) use the App in any manner whatsoever that could lead to the infringement of any local, state, federal or international laws, rules or regulations in the jurisdiction in which you use the App and the Content;
(f) use any part of the App or the Content in any other software or applications other than in the complete form the App and the Content are downloaded and installed on Your mobile device; or
(g) remove any trade mark, logo, copyright or other proprietary notices, legends, symbols or labels in the App or the Content.
9.4. You must not and You must not permit any other person to:
(a) use the App or the functions and the information the App provides in any way that is offensive or that results or could result in any loss or any damage to any person;
(b) allow a user under the age of 18 to use the App or the functions and the information the App provides;
(c) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others using the App including TonicApp and its directors, officers, agents, employees, licensees, contractors, assignees or successors;
(d) upload, email, post, publish, distribute or otherwise transmit any information about any person that may identify them or that may compromise their privacy or breach their confidentiality without their prior written consent;
(e) impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with any person or entity;
(f) upload, email, post, publish, distribute or otherwise transmit content that is false or misleading, inappropriate, tasteless, harassing, threatening, abusive, hateful, profane, defamatory, obscene, pornographic, racially vilifying, which promotes bigotry or hatred or harm against a group or individual, deliberately provocative or indecent, designed to provoke a negative response from one or more users, infringes another’s rights including but not limited to intellectual property rights, or violates any applicable laws or regulations;
(g) upload, email, post, publish, distribute or otherwise transmit content that is of nuisance value, inappropriate, off topic, vexatious, constitutes unsolicited bulk e-mail, junk mail, spam or chain letters, contains a solicitation for funds, promotion, advertisement, solicitation for goods or services, or other commercial matter;
(h) solicit, collect or store personal data about other users, solicit other users to use or join or become members of any commercial online or offline service or other organization;
(i) violate the property rights of others and You must not upload, email, post, publish, distribute or otherwise transmit content that infringes any patent, trade mark, trade secret, copyright or other proprietary rights of any party; or
(j) post any instructions, software, malware or other materials that harm other users' computers or would allow App users or third parties to harm other users' computers, mobile devices, tablet devices or to inappropriately access software or Websites and You must not employ any type of bots for the use of scrolling, showing multiple screens, or other activities that might disrupt online communication.
10. WARRANTY DISCLAIMER
10.1. The App is provided to You on an “as is” and “as available” basis.
10.2. To the maximum extent permitted by law, We expressly disclaim all representations and warranties, whether express or implied, with respect to the App, the Content and Your access to and operation and/or use thereof, including but not limited to all implied warranties of merchantability or fitness for a particular purpose or any warranties of title, non-infringement and/or arising from a course of dealing or usage of trade.
10.3. We expressly disclaim all guarantees, representations and warranties, whether express or implied, that the App will meet Your requirements or that Your operation and/or use, or the results of the operation and use of the App will be uninterrupted, complete, reliable, accurate, current, error-free, free of viruses or otherwise secure.
10.4. Nothing in this EULA excludes, restricts or modifies any condition, warranty, right or remedy conferred on You by applicable consumer law that cannot be excluded, restricted or modified by agreement (non-excludable condition). To the fullest extent permitted by law, Our liability for a breach of a non-excludable condition is limited to the minimum remedy that may be available in respect of any such breach.
10.5. You agree that you download, install, operate and use the App and the Content at Your own risk.
11.1. TonicApp is not a medical practitioner, doctor, qualified health care professional or any other qualified professional health care provider.
11.2. Nothing contained in this App or the Content is intended to constitute or to be used as medical advice and nothing contained in the App or the Content is intended to be used to diagnose, treat, cure or prevent any disease; nor should it be used for any therapeutic purposes or as a substitute for the advice of Your health care professional.
11.3. All Content provided on or through the App, including but not limited to Third Party Content (see clause 16 for more about Third Party Content) and all other text, graphics and images is provided for information purposes only.
11.4. No doctor-patient relationship is formed between You and Us by Your use of the App.
11.5. You should always seek the advice of a medical practitioner, doctor, qualified health professional or other qualified health care provider if You have questions about any physical or mental health condition or any of the information You receive from the App.
11.6. You should never disregard or delay seeking professional medical advice, diagnosis, or treatment based on anything You read or obtain through the App.
11.7. Some of the information TonicApp provides may become outdated, which may result in it being incorrect. Health care knowledge and health care practice can evolve and change rapidly, and therefore TonicApp makes no representation or warranty, either express or implied, as to the accuracy, completeness, adequacy, currency or timeliness of the Content provided on the App. TonicApp will not be liable to You for Your reliance on any incorrect, inaccurate, incomplete or outdated Content on the App.
11.8. The App may include interactive features that allows users of the App to communicate with Us, and You acknowledge that:
(a) You use the Content provided on the App at Your own risk; and
(b) TonicApp assumes no liability or responsibility for any errors or omissions in any of the Content on the App or the information provided to You.
11.9. TonicApp does not endorse, represent or guarantee the validity, truthfulness, accuracy, completeness or reliability of any of the Content on the App.
12.1. You agree to release and indemnify TonicApp, its directors, officers, agents, employees, licensees, contractors, assignees and successors from all losses, costs, expenses and damages of any kind including but not limited to direct or indirect, consequential, incidental, special, exemplary or punitive damages, and any liabilities arising out of or in connection with:
(a) any past, present or future claims, actions, suits, demands, causes of action, liabilities and costs of whatever kind and wherever situated which You or any third party now have or may have arising out of or in connection with Your operation and use of, or inability to operate and use the App on any mobile device that You own or do not own or control;
(b) a breach by You of Your obligations under this EULA;
(c) any wilful, unlawful or negligent act or omission by You; and
(d) any use or reliance of the App or Content, or by any reason arising from this EULA.
12.2. TonicApp will not indemnify, defend or hold You harmless with respect to any third-party claims of whatever nature against You arising out of or in relation to Your use of the App or the Content.
13. LIMITATION OF LIABILITY
13.1. The remedies for a breach by Us of this EULA or any breach by Us of any consumer protection law will be limited to the minimum remedy that may be available in respect of any such breach.
13.2. Notwithstanding clause 13.1 or any other provisions of this EULA, You agree that under no circumstances will Our total liability for any loss or damage suffered or incurred by You exceed the Charges (if any) paid by You. In this regard, the total liability may be nil.
14. INTELLECTUAL PROPERTY, TRADE MARK AND COPYRIGHT
14.1. You acknowledge and agree that We own absolutely, or have the right to use, all copyright, trade marks and all other intellectual property in the App and the Content including but not limited to visual interfaces, interactive features, information, graphics, designs, compilations, computer codes and all other elements of the App.
14.2. You acknowledge and agree that You own no copyright or other intellectual property rights in the App and the Content.
14.3. Nothing in this EULA grants You permission to use and reproduce Our trade marks or trade names.
14.4. You must not adopt, use, or attempt to register any trade marks or trade names that are deceptively or confusingly similar to Ourtrade marks or creates combination marks with any of Our trade marks or trade names.
14.5. You acknowledge and agree that You have no legal or equitable proprietary or other title or interest in the App and the Content other than the right to use the App pursuant to this EULA, and that the title to and all other proprietary rights in the App are retained by and are the absolute property of TonicApp.
14.6. You acknowledge and agree that damages may not be an adequate remedy for breach by You of this clause 11 and that We are entitled to apply for and be granted specific performance or injunctive relief in addition to any other legal or equitable remedy available to us for breach or threatened breach by You of this clause 14.
15. COLLECTION OF DATA AND PRIVACY
16. THIRD PARTY CONTENT
16.1. The App may utilise or include third party content, software, application, website or other copyright materials (Third Party Content). Your use of such Third Party Content is governed by the terms and conditions of the third party relevant to such use (Third Party Terms and Conditions).
16.2. By accepting this EULA You agree that You also accept the Third Party Terms and Conditions.
16.3. TonicApp expressly disclaims all representations and warranties, whether express or implied, in connection with Third Party Content and will have no liability in connection therewith.
17. ACCOUNT INFORMATION
17.1. You are solely responsible for maintaining the confidentiality of Your App login, Your registration information, and protecting Your mobile device from damage, theft or hacking.
18. GOVERNING LAW
18.1. This EULA is governed by and construed in accordance with the laws of the State of Queensland and the Federal laws of Australia and each Party submits to the non-exclusive jurisdiction of the courts of the State of Queensland, the Federal Courts of Australia (as the case may be) and courts hearing appeals from those courts.
19.1. The provisions of this EULA will be separate and severable from each other to the extent that if any provision or provisions are considered to be inoperative, void or otherwise unenforceable then the remaining provision or provisions will be binding on and enforceable by the Parties.
19.2. The rights and obligations of the Parties in respect of the EULA and the indemnities and warranties contained in this EULA will remain in full force and effect, and will not merge or be extinguished by or upon termination of, or completion of any obligations under this EULA.
19.3. This EULA contains the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it.
19.4. You must not deal with this EULA in any way by assignment, sub-license or otherwise without Our written consent.
Tonic App EULA was last updated on 12 March 2018