End User Licence Agreement – Individual – Apple iOS Platform

1.                      Parties

Between             Nothing is Obvious Limited trading as WellStream (NZ. Company Number 5875308) of New Zealand (“us” or “we” or “our”).

And                     You (“you” or “your”).

Together the “Parties”, individually, a “Party”.

2.                      Introduction

• These terms of use (defined in the definitions section below as “Terms”) govern your use of the WellStream application (defined in the definitions section below as “WellStream”) and payment terms for using WellStream.
• By downloading WellStream and logging onto it, you agree to comply with these Terms. These Terms set out what you need to know about using WellStream, and what our obligations to you are.
• These Terms form a legally binding agreement between you and Nothing Is Obvious Limited (a New Zealand company trading as WellStream). You should read these Terms carefully before you start using WellStream.
• WellStream is always evolving. This means that the minimum system requirements for WellStream to operate at its best may be upgraded from time to time. This also means that from time to time, we may need to amend these Terms by changing or removing existing terms or by adding new ones.
• You can view the latest Terms and minimum system requirements at or in WellStream. You should review the latest Terms regularly. By using or continuing to use WellStream you agree to the latest Terms.
• WellStream is for informational or educational purposes only and is not a substitutefor professional medical advice, diagnosis or treatment.

3.                      Definitions

• Anonymised Data means any data you have provided that we have stripped of all identifying features. This is data that is not able to identify you personally, either on its own or in combination with other data.
• Business Days means any day except Saturday or Sunday or a Public Holiday in Whanganui, New Zealand.
• Business Hours means between 9:00am and 5:00pm (NZST or NZDT, as is in force) on a Business Day.
• Credential means any unique identifier, password, token, credential, or any combination of those, or other means we may utilise from time to time for authorising access to all, or any portion of, the Services and WellStream.
• Intellectual Property means copyright, patents, designs, trade marks, trade names, goodwill rights, trade secrets, confidential information, the right to apply for any of those rights, and any other intellectual property right or form of intellectual property.
• Personal Information means the personal information we collect from you as set out in clause 21.
• WellStream means the WellStream software and any content, images, text and other information appearing on any page or screen of the software and any source code and object code in the software, including any mobile versions and smartphone applications and any other related computer software provided by us.
• Services means the electronic mental wellbeing tracking services provided through WellStream, remote support, and other services provided by us to you by way of a managed application service but does not include the Premium Services.
• Premium Services means the additional Services listed below:
  • The ability to add to or create new entries in the photo diary;
  • The ability to add to or create new habits;
  • The ability to add to or create new Lifestreams or Life Changes.
  • Any service that is offered as a Premium Service by WellStream in the future, as identified on our Website or in WellStream.
• Subscription Fees means the subscription fee you pay to access/use the Premium Services.
• Terms means these terms of use which are a legally binding contract between you and us, and includes our Privacy Policy as set out in clause 21.
• Third Party Code is defined in clause 1.
• Third Party Licensor(s) is defined in clause 1.
• Trusted Supporters Network means the people/persons you have nominated as part of the Services as being your trusted supporters.
• Updates means (as might be the case) any patch, update or new version of WellStream and any update or new version of the Services or Premium Services delivered to you.
• User means a unique individual authorised by us to use WellStream with a unique User ID. You, for example, are a User of WellStream.
• User ID means a unique method of identifying a User, which we assign to an individual User to access WellStream.
• Your Data means all data gathered from your use of WellStream as defined in clause 11

4.                      Licence & use of WellStream and the Services

• By downloading and using WellStream we grant to you, and you agree to be granted, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services and WellStream, and if applicable the Premium Services, on these Terms.
• We give you the licence to use WellStream granted by these Terms, but you gain no other rights in WellStream.
• In using WellStream, or the Services, and/or the Premium Services (if applicable), you agree to also abide by our Privacy Policy (accessible here: https://www.theWellStream.com/privacy-policy/).

5.                      Payment terms for use of the Premium Services

• We give you access to the Premium Services in exchange for your prompt payment of the Subscription Fees. We give you access to the Premium Services for the first fourteen calendar days for free.
• We use Apple in-app purchases to process your payment of the Subscription Fees, and you agree to Apple’s terms and conditions of use and payment. More info for this service in your country can be found here: https://support.apple.com/en-us/HT202631
• We charge you the Subscription Fees on either a monthly or yearly basis. The Subscription Fees are set out on our Website and on the subscriptions page of WellStream. We will communicate any changes to those Subscription Fees to before we make them either by email or by announcement on the Website (or both).
• We reserve the right to change the Subscription Fees at any time at our sole discretion. If we do change the Subscription Fees, you will be charged the new rate for Subscription Fees payable from the date on which the change is announced. By continuing to use WellStream and/or the Premium Services after that date, you agree to be charged the new Subscription Fees.
• Our subscriptions are offered as an in-app purchase from within WellStream. You will be able to access payment history from within the subscriptions area of your device or receive a receipt for the Subscription Fees to the email address you give us when you sign up to WellStream.
• If you don’t pay your Subscription Fees on time we have the right to cancel or suspend your access to or use of the Premium Services and WellStream. We give more detail about this and its consequences at clause 17 and its subclauses and clause 3.

6.                      Provided ‘as-is’

• We provide WellStream ‘as is’. We do not warrant that WellStream will meet your requirements or that it will be suitable for any particular purpose.
• We are not responsible for any loss, including loss of data, failure or fault with WellStream, including the inaccuracy of any information made available to you in WellStream.
• Your access to WellStream depends on many technical aspects, including provided by third parties. We cannot therefore guarantee that WellStream will work 100% of the time.

7.                      Content of WellStream

• While we provide services to track and evaluate your wellbeing, you acknowledge and agree that the wellbeing scores given by the Services (and/or if applicable the Premium Services) and WellStream are only estimates that are indicative of wellbeing. These wellbeing scores are not a substitute for any therapeutic or medical diagnosis or other professional advice or care. This means we are not, and we cannot be, responsible for anything you do or don’t do relying on any content or information provided on or by WellStream. We may recommend actions you may take as part of the Services, but whether or not you take those actions and the consequences of doing or not doing so (as the case may be) is your own responsibility.
• We may make errors, omissions or inaccuracies in the content provided on or hosted by WellStream, and you accept this may happen.
• We will do our best to fix any errors, omissions or inaccuracies where reasonably possible after we discover them. However, we do not accept any direct or indirect liability (responsibility) for any loss or damage which may result from any information, advice, statement, or representation, whether negligent or otherwise, contained on, made on, presented on, hosted on, WellStream.
• We reserve the right to make changes to the content of WellStream without warning.

8.                      Your obligations as a User of WellStream, the Services, and the Premium Services

• You must only use the Services and WellStream in accordance with these Terms and responsibly, lawfully and in good faith. This means you must:
  • Keep your passwords and user information secret, including User IDs assigned to you to use WellStream, and
  • Immediately notify us if you become aware of any unauthorised use or disclosure of information, by sending an email to support@thewellstream.com;
• Except where these Terms say otherwise, you are solely responsible for ensuring that your use of the Services, the Premium Services, and WellStream complies with these Terms and applicable law.
• For the protection of other Users of WellStream and for your own beneficial experience with WellStream you cannot:
  • use WellStream to transmit illegal, obscene, threatening, defamatory, harassing, or offensive messages, or otherwise unlawful material;
  • authorise anyone to, or attempt to:
    • abuse or misuse the Services, and/or the Premium Services, including gaining or attempting to gain unauthorised access to the Services, or altering or destroying information stored in the Services; or
    • use the Services and/or the Premium Services, in a manner that interferes with other users’ use of the Services and/or the Premium Services,; and
  • circumvent any technical measures we have put in place to:
    • safeguard the Services and/or the Premium Services, or the confidentiality, integrity or accessibility of any information and data stored as part of the Services or on WellStream; or
    • to restrict access to the Services to people authorised to use the Services under these Terms.
  • As WellStream is our Intellectual Property (see clause 22 further on in these terms), you are also not permitted to:
    • Give anyone else (business, person, group or entity) access to WellStream, unless required to by law, or unless we give you our written permission to do so;
    • copy, reverse engineer, decompile or disassemble WellStream, in whole or in part, or otherwise attempt to discover the source code to WellStream;
    • modify WellStream or combine WellStream with any other software or services not provided or approved by us. This includes making any derivative works, translations, localisations, or ports of WellStream;
    • reproduce, publish, or distribute content in connection with the Services and/or the Premium Services, and/or WellStream that infringes anyone else’s Intellectual Property rights;
    • use WellStream in an automated process (such as data mining); or
    • allow anyone else, or give anyone else permission, to do anything listed above in clauses 4.1 to 8.4.5 inclusive.
  • If you do anything listed above that you are not permitted to do under these Terms, we will immediately terminate your licence to use WellStream, the Services and the Premium Services (if you have paid for them).

9.                      User ID’s & Credentials

• We authorise you to use the User IDs and any Credentials assigned to you by WellStream. However, you do not own any User ID or Credentials, and we may delete or change User IDs and/or Credentials at any time in our sole discretion.
• It is your responsibility to come up with and keep reasonable and appropriate security precautions for your User IDs and Credentials to keep them safe and prevent unauthorised use.

10.                  Anonymised data

• By using WellStream, you agree that we may create Anonymised Data from data and metadata collected from your use of WellStream. We keep Anonymised Data encrypted and stored securely.
• To create the Anonymised Data we will anonymise that data as far as reasonably possible to remove any reference to you (by, for example, removing names and/or addresses and other identifying information).
• We use Anonymised Data either on its own, or in aggregate (i.e. together or combined with other Users Anonymised Data), for our own internal usage metrics and statistics.
• You agree that we may disclose Anonymised Data to third parties. We will only disclose Anonymised Data to third parties if we are reasonably satisfied it will not harm or compromise you.

11.                  Your Data, what we do with it, and how we store it

• As part of your use of WellStream, we collect the following data and we do the following with that data (“Your Data”):
  • Personal Information. We collect, store, and use personal information only in accordance with our Privacy Policy (more on that in clause 21 which also tells you what personal information we collect).
  • Answers and responses to quizzes. We encrypt this data, and store it as encrypted data. We also turn it into Anonymised Data, under clause 10 and its subclauses above.
  • Written and photo diary entries. We encrypt and store this data, and we will never access this data, unless ordered to by a Court or tribunal or as required under law.
  • Contact history with support networks. We encrypt and store this data, and we will never access this data, unless ordered to by a Court or tribunal or as required under law.
  • Recording of habits and large Life Changes (which we also call Lifestreams). We encrypt and store this data, and we will never access this data, unless ordered to by a Court or tribunal or as required under law.
  • Payment information. While we collect payment information, we do not store or access it, as we use Apple in-app purchases to handle transactions for Apple iOS devices.
  • Your WellStream usage data and metadata. We encrypt this data, and store it as encrypted data. We also turn it into Anonymised Data, under clause 10 and its subclauses above.
• Where we encrypt Your Data, we provide you with a decryption key that is specific to you for decrypting Your Data. You may only access and use your decryption key while you have a user account with WellStream.
• When you upload data onto WellStream, you represent that you have authority to, or own all rights in, or are otherwise legally permitted to upload that data and in doing so you are not in breach of these Terms or any other applicable law.
• We use Microsoft Azure to store Your Data and Anonymised Data, and as a result, Your Data and Anonymised Data may be stored and accessed from overseas storage centers/locations.
• We may return Your Data to you under these Terms (for example, if you cancel your subscription). However, we use industry standard encryption methods to ensure Your Data is secure. This means that if we return Your Data to you, in whole or in part, under these Terms, we may only be able to provide you with a mix of plain and encrypted data.
• We will continue to store Your Data securely until you delete your account (under clause 1), or until you request we delete or return Your Data. If you request for us to return Your Data, we will return Your Data to you as we set out in clause 11.5 above, in accordance with local laws in your region. If you request that we delete Your Data, we will do so permanently and irreversibly.

12.                  Your rights to access Your Data

• In addition to access rights for personal information provided under our Privacy Policy, from time to time, you may request to access and/or alter Your Data stored in WellStream to:
  • confirm or verify the accuracy of Your Data, and/or
  • to alter, remove, or add to Your Data in order to maintain the accuracy of that information.
• We will provide reasonable commercially available methods to allow you to do anything under clause 1 above on your request.
• Even though you own Your Data (see clause 22 (Intellectual Property) below), you can only access it through WellStream if you have valid user access credentials. If you don’t have access to WellStream, we will send you a copy of Your Data that we hold if you email us at support@thewellstream.com and provide us with your details and request.

13.                  Third party access to and use of data

• We will not permit third parties to access or use the data stored in WellStream, unless:
  • They are part of your Trusted Supporters Network;
  • to comply with a lawful order of a competent authority, including by Court order or other such administrative or legal tribunal or body, for the purposes set out in that lawful order.
• We may sometimes provide or sell aggregated statistical Anonymised Data or metadata to third parties, but only:
  • where we are reasonably satisfied it cannot identify you; and
  • we believe it is ethical to do so.

14.                  Updates to WellStream

• We will provide you with all Updates to WellStream that we make generally available.
• If an Update requires specific software or hardware requirements that have changed since the previous version of WellStream, or the previous update, we will notify you of those requirements in advance. We are not responsible for keeping your own devices software and/or firmware up to date.

15.                  Third party code

• WellStream may use or interact with software or other technology (Third Party Code) that is licensed from, and owned by, third parties (Third Party Licensors). You agree that, by using WellStream:
  • You will use any Third Party Code in accordance with these Terms and any other restrictions specified in any licence provided in addition to these Terms for that Third Party Code;
  • no Third Party Licensor makes any representation or warranty to you concerning the Third Party Code or WellStream;
  • no Third Party Licensor will have any obligation or liability to you as a result of these Terms or your use of the Third Party Code or WellStream.

16.                  Limitation of liability, indemnity, warranties

• Subject to any rights you may have at law, our liability to you under these Terms is excluded to the fullest extent permitted by law.
• To the extent permitted by New Zealand law, we make no warranties, representations, or guarantee about whether WellStream, our Services, or their content is fit for purpose, or the accuracy, quality, reliability, completeness, utility or otherwise of any information or content on WellStream or our Services.
• If we are ever liable to you and, for any reason we cannot rely on the above exclusion of our liability under these Terms, then the maximum combined amount we will have to pay you will be twelve times the monthly subscription to WellStream for any event or series of related events.
• You indemnify us against all loss of profits, savings, revenue, or data, and any other claim, damage, loss, liability, and cost, including legal costs on a solicitor and own client basis:
  • incurred or suffered by us as a direct or indirect result of your failure to comply with these Terms; and/or
  • any claims arising from your use of WellStream (including made by third parties), including reliance on information presented by WellStream or its wellbeing indicators.

17.                  When we can suspend or terminate your access to WellStream, or the Premium Services

• Without prejudice to any other right or remedy available to us, we may suspend or terminate your access to WellStream and/or the Services and/or the Premium Services at any time for any reason by giving written notice by email. We won’t refund any Subscription Fees paid prior to suspension or termination.
• If your access to WellStream or the Services is terminated your user accounts will be closed and you must stop using WellStream, or the Services and must not attempt to gain further access.
• If your access to the Premium Services is terminated, your user accounts may be restricted to only use of the Services, you must stop using the Premium Services and must not attempt to gain further access.
• If your access to the Premium Services is suspended, your user accounts may be restricted to only use of the Services for the period of suspension, you must stop using the Premium Services and must not attempt to gain further access for the period of suspension.
• However, under both clauses 3 and 17.4 above, unless you are also suspended or terminated under clause 17.2, you will still have access to WellStream and the Services, including the ability to view all content created using previous access to the Premium Services.
• If you have any unpaid Subscription Fees, we may suspend or terminate your access to the Premium Services under clauses 3 and 17.4.

18.                  Cancelling your subscription and its consequences

• You may cancel your subscription to the Premium Services under these Terms at any time by using the cancel subscription setting in the WellStream application.
• If you are unable to use the WellStream app to cancel your subscription under clause 1, you may send us an email one month ahead of time. That email should tell us the date you wish to cancel on (which must be at least one month after the date of your email). We will charge you all Subscription Fees under these Terms up to that date, on a pro-rata basis.
• On cancellation or termination (but not suspension) either by you (under clause 1 or 18.2 above) or us (under clause 17 above, including its subclauses) we will remove your access to the Premium Services. You may continue to use WellStream and the Services, including to view all content created using the Premium Services, and we will continue to provide you with access and an account to do so.

19.                  Deleting your account

• You may delete your account with WellStream under these Terms at any time by using the ‘Delete my account’ setting in the WellStream application. When you do this:
  • After 48 hours we will completely, irreversibly, and permanently erase all Your Data from our systems and WellStream, and you will no longer be able to access WellStream or the Services or the Premium Services (if you have paid for those), and we will no longer provide you with access to WellStream, the Services, the Premium Services (if you have paid for those), or Your Data.
  • If, before those 48 hours have ended, you change your mind, you may undo or cancel the “Delete my account” request and Your Data will not be deleted and you will retain access to WellStream and the Services and the Premium Services (if you have paid for those).
• If your account is inactive (by you not logging in or using WellStream or the Services or the Premium Services) for 2 years, we will permanently destroy Your Data. We will notify you that you have been inactive and we will delete your account 3 months before the 2 years is up, and then again 1 month before the 2 years is up.

20.                  Contact / Notices

• If we need to contact you personally, we will do so by email which will be deemed to have been received by you once we have sent it.
• If you need to contact us, please email us at support@thewellstream.com or to any other email address we notify you of by email or on our Website or on WellStream for the relevant purposes.

21.                  Privacy policy

• We will comply with the New Zealand Privacy Act 2020 in relation to any personal information you supply to us or gathered as a result of your use of WellStream (“Personal Information”).
• We gather and use your Personal Information in accordance with our Privacy Policy, which you may access at: https://www.theWellStream.com/privacy-policy/
• Our Privacy Policy is a part of these Terms with you.
• We will gather the following Personal Information from you when you sign up to our Services:
  • Your name;
  • Email address;
  • Age; and
  • Location (such as region and/or city).
• Optionally, we may also gather the following Personal Information from you, if you choose to provide it to us, when you sign up to our Services:
  • Phone number; and
  • Gender identity.
• If you do not consent to us collecting, or provide us with, the Personal Information in clause 4, we may be unable to provide you with the Services and/or access to and use of WellStream.

22.                  Intellectual Property

• Our rights: All Intellectual Property rights in WellStream belong to us. You will not acquire any Intellectual Property rights in WellStream whatsoever, or in any improvements or variations that may be made to it.
• Your rights in your content: You retain all Intellectual Property rights Your Data (for example, any photographs you upload as part of your photo diary). You grant WellStream a limited, royalty free, not-sublicensable, licence to use the Intellectual Property rights in Your Data only to allow you to use WellStream and the Services under these Terms. This licence lasts for as long as you store Your Data in WellStream.
• You must not, and you must not permit any other person to:
  • Tamper, obscure, alter, or remove any trade mark, any patent or copyright notices, or other proprietary right or legal notices in relation to WellStream or the Services; or
  • Do anything that would or might invalidate or be inconsistent with our Intellectual Property rights that is not permitted by these Terms.
• Nothing contained in these Terms or in WellStream grants you, by implication or otherwise, any right to use any trade mark or other Intellectual Property right without our written permission.

23.                  General

• No assignment or transfer: You may not transfer or assign any of your rights or obligations under these Terms without our prior written consent. This means that no other third party may enforce any of the provisions in these Terms.
• Duration/Survival: Clauses which by their nature are intended to survive cancelling your access to WellStream, including clauses 8 and 22, continue in force.
• Governing law and jurisdiction: These Terms are governed by New Zealand law, and both us and you submit to the non-exclusive jurisdiction of the Courts of New Zealand.
• No waiver: We will only waive a right under these Terms in writing. This means that even if we have not enforced a clause in these Terms, that does not mean we are prevented from enforcing that cause, or any other clause, at any other time unless we say in writing we will not enforce it.