Employer Terms of Service

Employer Terms of Service

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Last Revised: 30 July, 2025

Please read these Employer Terms of Service (“Terms of Service”) carefully, as it sets out the basis upon which Foremind licenses the Software and provides Services for use by You, the Customer.

Foremind enables Customers to make wellbeing support Services available to their personnel via the Platform.  By executing an Employer Services Agreement, Order Form or SOW or accessing the Services, You agree to these Terms of Service.  If You do not agree to these Terms of Service, You must not access or use the Platform or Services. If You do not agree to the provisions of these Terms of Service, do not access the Platform, and do not use any of the Software.

These Terms of Service are entered into on the Effective Date (as defined below), by and between:

• Foremind Pty Ltd (t/as Foremind) (ABN 38 615 400 612), an Australian private limited company, with its registered office address at Suite 2, Level 5/6 O’Connell St, Sydney NSW 2000 (“Foremind” or “We” or “Us”); and
• The Customer, being the employer or contracting organisation subscribing to the Services under an applicable Employer Services Agreement, Order Form or SOW (“Customer” or “You” or “Your”)

The Customer acknowledges that the consideration it receives by accessing the Platform and Services in accordance with these Terms of Service is full and valuable consideration.  Foremind acknowledges that the consideration it receives from the Customer, including fees and charges payable in accordance with the Employer Services Agreement or Order Form, constitutes valuable consideration.

1. Definitions

In these Terms of Service, except to the extent expressly provided otherwise:

“Abusive Conduct” includes:

• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
• granting logins or password information to any person or affiliate who does not directly carry out data entry or administrative functions in relation to the Services;
• monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
• interference with service to any user of Software or the Services, including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
• use of an Internet account or computer without the owner’s authorization;
• collecting or using personal information, email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• collecting or using information without the consent of the owner of the information;
• use of the Software or the Services to distribute Software that covertly gathers information about a user or covertly transmits information about the user;
• use of the Software or the Services for distribution of advertisement delivery Software unless: (i) the user affirmatively consents to the download and installation of such Software based on a clear and conspicuous notice of the nature of the Software, and (ii) the Software is easily removable by use of standard tools for such purpose included on major operating systems;
• any conduct that is likely to result in retaliation against Foremind and Customers, or Foremind’s and Customers’ employees, officers or other agents, including engaging in behaviour that results in any server being the target of a denial-of-service attack (DoS);
• promote illegal pyramid selling schemes, betting, wagering, or any other forms of gambling not allowed by the laws of New South Wales or the United States applicable to the Customer, Foremind and Customers;
• any act that constitutes a misuse of a party’s or any other person’s confidential information; or
• devise any form of “work around” to the Services or attempt to run the Services on any unsupported platform;

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth), and the Australian Consumer Law Regulations being as set out in Parts 6 and 7 of the Competition and Consumer Regulations 2010;

“Authorised User” means an individual personnel member (including employees, contractors or agents) of the Customer who is permitted by the Customer and Foremind to access and use the Services in accordance with these Terms of Service.  Authorised User includes individuals accessing the Services without a user login account, such as a user who has called a phone support hotline.

“Counselling Services” means one-on-one counselling services made available by Foremind to the Customer and its Authorised Users from time to time, either: (i) online as part of the Platform Services; or (ii) through offline channels, video call, telephone or in-person sessions;

“Customer” means organisation that has a commercial agreement with Foremind in respect of Foremind’s ‘Employee Assistance Program’.

“Customer Data” means all data, materials, content and other information uploaded to, stored on, submitted to, or transmitted through the Platform by or on behalf of the Customer or its Authorised Users, but excluding analytics data and de-identified aggregated data created by or for Foremind.

“Employer Services Agreement” means the commercial agreement between the Customer and Foremind;

“Effective Date” means the date on which these Terms of Service takes effect, as provided in an Employer Services Agreement.

“Export Laws” means all applicable laws restricting and/or regulating:

• the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, Software, technology, technical know-how, data and/or information; and/or
• the import, export, supply, disclosure, transfer or transmission of goods, services, Software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;

“Fees” means the charges payable by the Customer to Foremind under an Order Form or Employer Services Agreement, including fees for platform plans (including Foundation, Proactive, Thrive), session-based fees and charges for optional add-on Services, or other Services as agreed in an Employer Services Agreement.

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Foremind” means the company described at the head of these Terms of Service;

“Foremind IP” means the Intellectual Property Rights (including the IP in the provision of Services) owned by or licensed to Foremind;

“Intellectual Property Rights” or “IP“ means registered and unregistered proprietary rights in respect of trademarks, patents, logos, details of venue or event layouts, copyrights, designs, confidential information, trade business, company names, business names, websites, URLs, email addresses, personal information, data, documents, records, and know-how and all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organization (July 1967);

“Insolvency Event” means the occurrence of any of the following in respect of a party: being unable to pay debts as they fall due, being placed under administration, receivership or liquidation, entering into an arrangement with creditors, or any similar event under applicable law;

“Malicious Code” means:

• any code, program or sub-program whose purpose is to damage or interfere with the operation of the computer system containing the code, program or sub-program, or to halt, disable or interfere with the operation of software, code, a program or a sub-program, itself; or
• any device, method or token that permits any person to circumvent the normal security of the Software or Platform or the system containing the code or infiltrates a computer, system or Software or Platform without the prior consent or knowledge of the user, owner or licensee of such computer, system or software; and including any virus, timebomb, software lock;

“Maintenance Services” means the supply to the Customer of Updates and Upgrades;

“Offensive Content” includes conduct that:

• Constitutes, depicts, fosters, promotes or relates in any manner to pornography, bestiality, or non-consensual sex acts;
• is violent, incites violence, threatens violence or contains harassing content or hate speech;
• enables a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to a party;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates an imminent risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement;
• knowingly improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• knowingly infringes on another person’s Intellectual Property Rights;
• is intended to promote illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
• is otherwise known to be illegal or solicits conduct that is known to be illegal under laws applicable to you or to the Company; or
• is otherwise malicious, fraudulent or likely to result in retaliation against the Company by offended viewers.

“Order Form” means the commercial ordering document signed by or on behalf of the Customer and Foremind (or its authorised representative) which sets out the plan, add-ons, fees and other key commercial terms of the Customer’s subscription to the Services. Each Order Form forms part of this Agreement when executed.

“Platform” means platforms and websites of or managed by Foremind or its Related Bodies Corporate and used to provide the Platform Services, the system and server software used to provide the Platform Services, and the computer hardware on which that application, database, system and server software is installed, access to which Foremind may in its discretion partition and restrict, including based on subscription elements selected by the applicable Customer as described in an Employer Services Agreement, Order Form or SOW;

“Platform Services” means the hosted services that are made available by Foremind to the Customer as a service via the internet and may be accessed and used by means of the Platform, set out in the Order Form, which may include access to Wellbeing Content, digital self-assessments, Counsellor booking platform, psychosocial hazard reporting and management tools, de-identified analytics and reporting, workforce surveys, and related support services;

“Professional Services” means such Services related to training, implementation, installation, operation and customization of Partner’s instance of any Software required by the Customer, specified in a Scope of Work of the Employer Services Agreement, available at the election of the Partner, subject to an additional fee;

“Related Body Corporate” means as described in Section 50 of the Corporations Act 2001 (Cth);

“Services” means any services that Foremind provides to the Customer, or which Foremind is obliged to provide under these Terms of Service, including Platform Services, Counselling Services, Professional Services, Support Services, Maintenance Services and any other alternative, optional and add-on services made available to the Customer, online or through offline channels, by Foremind from time to time;

“Software” means Foremind’s cloud-based platform (including Company’s web-applications, software libraries and APIs), that enables access to the Services.  The Software is a component of the Platform;

“Source Code” means, in respect of the Software, the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

“Support Services” means technical assistance provided by Foremind in relation to the implementation and use of the Foremind Software, including helpdesk support for resolving user access or functionality issues, provided by Foremind to the Customer under the applicable Employer Services Agreement, but excluding any clinical, counselling or healthcare-related support, provided between 8:30am and 5:30pm AEST on a Business Day;

“Term” means the term of these Terms of Service, commencing in accordance with clause 2.1 and ending in accordance with clause 2.2;

“Unauthorised Use” means any of the following:

• sale, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
• alter, edit or adapt the Software;
• decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software;
• use of the Software in breach of an applicable Employer Services Agreement and related policies;
• use of the Software in a manner which causes the Platform to function in a degraded manner, or interference with use of the Software by other means or circumstances which may place Foremind in potential or actual breach of any agreements with third parties;
• provide access to the Software to parties who do not have valid authority to have access;
• allow any Malicious Code to be transmitted or disseminated in or by the Software;
• not create a false identity or to otherwise mislead any person as to the identity, source or origin of any communications;
• not copy, disclose, publish or otherwise make available to any third party, any compilation of data obtained through the use of the Software; and
• any activity which is fraudulent, harmful, a breach of applicable law, or illegal or in connection with any such activity.

“Update” means a hotfix, patch or minor version update to the Software;

“Upgrade” means a major version upgrade of the Software;

“User Content” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to Foremind for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Platform Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);

“Vulnerability Testing” includes attempting to probe, scan, penetrate or test the vulnerability of the Software or the Services or to breach Foremind’s security or authentication measures, whether by passive or intrusive techniques, without Foremind’s express written consent.

“Wellbeing Content” means wellbeing related content including written, audio and visual content, designed to support employees across a variety of wellbeing topics

2. Term and Contract Formation
   • These Terms of Service shall commence on the Effective Date and continue until it is terminated in accordance with the terms of these Terms of Service.
   • These Terms of Service may be formed electronically without the need for physical (wet) ink. The Customer accepts that the right of access to the Platform and Software by Foremind constitutes an offer, and the Customer’s access to the Platform and Software for the valuable consideration described above constitutes acceptance by the Customer of Foremind’s offer binding the Customer to the provisions of these Terms of Service.  Should Foremind require physical (wet) signature, the Customer will accommodate such request and physically sign and email a scan of these Terms of Service to Foremind.
3. Licence and Limitations
   • Subject to the Customer’s compliance with these Terms of Service, Foremind grants to the Customer, from the Effective Date and for the Term, a personal, revocable, non-exclusive, non-transferable, royalty-free licence (without any right to sub-license), to permit Authorised Users to access and use the Software and Platform for internal business purposes only, subject to the limitations and prohibitions set out in this clause3.
   • Where the Customer is subscribing under an Employer Services Agreement, the licence is conditional upon the Customer’s compliance with its obligations and full payment of applicable fees.
   • The Customer is responsible for obtaining and testing the Platform unless Foremind has agreed to do so as an additional Professional Service at an additional fee agreed to by the Parties in writing.
   • The Customer must:

• not sell, rent, lease, licence, sublicence, display, time share or otherwise transfer the Software or the Platform to, or permit the use of the Platform by, any unauthorised third party;
• not, directly or indirectly, cause or allow a third person to copy, reproduce, modify, distribute, revise, vary, translate, reverse-engineer, use, alter, decompile, disassemble or otherwise attempt to derive the Source Software from object code;
• not remove any copyright or proprietary notice from the Platform;
• use reasonable care and protection to prevent the unauthorised use, copying, publication or dissemination of the Software and the Platform;
• not provide or make the Platform available in any form to any person other the Customer’s employees, sub-contractors or agents without Foremind’s prior written consent;
• not sub-contract, novate or assign its rights under these Terms of Service without Foremind’s prior written consent;
• supervise and control the use of the Software and the Platform so that it is in accordance with the terms of these Terms of Service;
• obtain, install and test accompanying software required to support the Platform;
• regularly backup its data and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting against any virus, disability or malicious device or code, worm, trojan-horse virus, time bomb or other harmful or destructive code;
• cooperate with Foremind by providing access to its premises and facilities as reasonably necessary to enable Foremind to provide the Services;
• ensure that the Customer and the Authorised Users do not post or transmit through the Platform any material or content that gives rise to civil or criminal liability or otherwise violates any applicable law;
• provide Foremind with up to date and accurate information regarding the details of all end users, as when requested by Foremind;
  • The Customer agrees that these Terms of Service binds the Customer and the Customer will ensure that Authorised Users and all of its employees, agents and contractors who are permitted to access or use the Software, and access the Platform and other Services, at all times comply with the terms of these Terms of Service and the Customer acknowledges that a breach by an Administrator or an Authorised User of these Terms of Service, will be considered to be a breach by the Customer.
  • The Customer must not (and must ensure that Authorised Users do not) engage in any Unauthorised Use or Vulnerability Testing.
  • The Customer must not (and must ensure that Authorised Users do not) use the Platform in a manner that constitutes Abusive Conduct or Offensive Conduct.
• Fees and Payment
  • The Customer must pay Foremind the Fee prior to Foremind providing access to the Platform and annually on each 12-month anniversary of the Effective Date, in consideration for receiving access to the Platform and the licences granted under the Employer Services Agreement.
  • Fees are exclusive of GST unless otherwise stated. In respect of any taxable supply, the Customer must pay to Foremind an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the applicable Fee, subject to the receipt by the Customer of a valid tax invoice. In this subclause, “GST”, “supply”, “supplier” and “tax invoice” have the same meaning as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Invoices must be paid by the Customer within 14 days of receipt, unless otherwise specified in the Employer Services Agreement. Foremind may, in its discretion, issue invoices annually in advance or at other intervals in its discretion, having regard to the nature of the Services provided.
  • If the Customer delays payment under these Terms of Service for any reason, including underpayment, interest will accrue and be payable from the time payment was due until paid in full, at a rate of 7% per annum, accruing daily. Foremind reserves the right to suspend or terminate the Services by providing 60 days’ prior written notice if amounts remain unpaid.
  • The Fee will increase automatically on each anniversary of the Commencement Date by the greater of 3% or the published Consumer Price Index for the Australian Capital Territory, unless otherwise agreed by the Parties in writing prior to that anniversary date. In addition, Foremind may update the Fee at any time after the first anniversary of the Effective Date by providing the Customer with at least 3 months’ prior written notice.
• Reputation
  • The Customer must not do any act which prejudices or brings into disrepute the good name and reputation of Foremind or its Customers or any of Foremind’s and its Customer’s officers, members, servants and agents.
  • The Customer must not refuse any necessary support, information, materials and assistance necessary by Foremind to enable it to meet its obligations under these Terms of Service in relation to the Service.
• Copyrighted MaterialThe Customer must not use the Platform to download, publish, distribute or otherwise copy in any manner any text, video, music, Software, art, image or other work protected by copyright law, unless:
• the Customer has been expressly authorized by the owner of the copyright in the work to copy the work in that manner and use of such materials is strictly limited to operational use, backup, testing or evaluation, provided such copies are made solely for internal business purposes;
• the Customer is otherwise permitted by established Australian copyright law to copy the work in that manner, and such use and does not infringe the rights of Foremind or its licensors.
  • All Intellectual Property Rights in the Platform, Services and any related materials remain owned by or licensed to Foremind.

7. Source Code

Nothing in these Terms of Service shall give to the Customer or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

8. User Login and Access Credentials
   • Where the Customer is provided with a user identification code, password or any other piece of information as part of Foremind’s security procedures (whether by Foremind or its Customer(s)), the Customer must treat such information as confidential.
   • Authorised Users may only access the Platform by entering valid user identification code and password. The Authorised User must keep the log in credentials in a secure and safe place.
   • Foremind and the Customer each has the right to cancel and disable any user identification code or password, without notice, whether chosen by the Customer or allocated by Foremind or the Customer at any time, if in Foremind’s or Customer’s reasonable opinion(s), the Customer has failed to comply with any provision of this User License Agreement, and any applicable Customer policies and rules.
   • In the event of cancellation of the Login account of an Authorised User in accordance with this clause 8, the Authorised User may not object, and such Authorised User shall no longer seek to access the Platform.
9. Provision of Services – General Commitments and Conditions
   • Foremind agrees to provide the Services during the Term:

• in good faith and with reasonable care and skill;
• in a competent and professional manner consistent with applicable standards for comparable hosted services; and
• in accordance with any reasonable directions of the Customer where mutually agreed and not inconsistent with these Terms of Service.
  • The Customer further acknowledges that Foremind’s role is limited to:
• delivering and maintaining access to the Platform Services and other Services as described in these Terms of Service;
• correcting any technical malfunctions in the Platform that Foremind considers to be departures from its intended functionality; and
• providing such Support Services or Professional Services as are expressly agreed in an applicable Statement of Work or Order Form.
  • Where Foremind is required to travel to the Customer’s location to perform any Services (where agreed), the Customer must reimburse Foremind’s reasonable travel, accommodation and related expenses (including at least 4-star accommodation), as well as any travel fees notified by Foremind in advance.

10. Platform Services
    • The Platform Services made available to the Customer under these Terms of Service are those associated with the service tier and any add-ons selected in the applicable Order Form. The inclusions, usage limits, and features applicable to each service tier and add-on are described in the provided order form, as updated by Foremind from time to time. By selecting a tier or add-on in an Order Form, the Customer agrees to the corresponding inclusions and limitations published at that URL as at the effective date of the Order Form. Any material change to those inclusions will not apply to the Customer during the Term without the Customer’s prior written consent.
    • Subject to the Customer’s compliance with these Terms of Service, and in the case of an Authorised User, for such time as the Customer’s login account remains valid, Foremind will make available the Platform as a hosted service for the Customer’s access and use during the Term. Access is provided on a personal, revocable, non-exclusive, royalty-free and non-transferable basis, subject to the limitations and prohibitions set out in clause 3.
    • Foremind shall use reasonable commercial endeavours to maintain the availability of the Platform Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Platform Services, but Foremind does not guarantee availability.
    • The Customer must not use the Platform Services in any way that causes, or may cause, damage to the Platform Services or the Platform or impairment of the availability or accessibility of the Platform Services.
    • All the limitations and exclusions of liability and warranties, and the special acknowledgements by the Customer, that are set out in these Terms of Service and are expressed to relate to the Software shall apply in respect of the Platform Services in addition to the Software.
    • The Customer must ensure that Authorised Users safeguard and do not share login credentials. The Customer is responsible for all use of the Platform by its Authorised Users, including misuse of access credentials.
11. Counselling Services
    • From time to time during the Term, Foremind may provide Counselling Services. Such Counselling may be accessed through the Foremind Platform through virtual sessions or via offline channels, including phone session or in-person sessions.
    • The availability of Counselling Services is subject to practitioner availability, the applicable Employer Services Agreement, order form and Foremind’s discretion.
    • If an Authorised User cancels a scheduled counselling appointment within 24 hours of the scheduled start time, the full session fee will be charged, and the session will be counted toward the Authorised User’s allocated session quota (if any). This applies regardless of the reason for cancellation, except where the cancellation is due to an emergency or other extenuating circumstances accepted by the relevant practitioner in their sole discretion.
    • While Foremind requires counselling practitioners be a member of one of the following professional bodies:

• Australian Counselling Association (ACA);
• Psychotherapy and Counselling Federation of Australia (PACFA); or
• Australian Association of Social Workers (AASW) verified Mental Health Clinicians;

you expressly acknowledge and accept such practitioners may not be registered to practice in your Authorised User’s jurisdiction of residence.  The Customer expressly acknowledges and agrees that where its Authorised Users are located outside of Australia, practitioners will comply with the applicable laws and rules in their location of practice, and not necessarily the laws and rules applicable in the Authorised Users’ jurisdiction of residence, and you expressly agree to these Terms of Service on that basis. Foremind does not endorse, recommend, warrant or represent the qualifications, expertise, specialisation, quality, suitability, reputation or abilities of any counselling practitioner or service provider, other healthcare professional to whom the Customer is connected.  Foremind disclaims all liability for the acts, omissions, conduct or representations (including misrepresentations), negligence, misconduct or malpractice of any such practitioner, whether occurring during the provision of counselling sessions, in the course of any communications with the Customer, or otherwise arising from the professional services or advice provided.  This disclaimer applies regardless of whether the practitioner is accessed via the Platform or through offline channels facilitated by Foremind.

• Any advice, diagnosis, treatment or services provided by a practitioner accessed through the Platform are provided entirely at the Customer’s own risk. The Customer must exercise their own judgment when engaging with any such professional, including verifying suitability for their needs and the appropriateness of any advice or recommendations given. Users may select another practitioner at their election if the chosen practitioner is not suitable for their needs. The Customer’s use of the Platform, including access to Counselling Services, is at their own discretion and risk.  The Customer is solely responsible for any resulting loss or damage.
• To the fullest extent permitted by law, Foremind disclaims all liability for any direct or indirect loss, damage, injury or adverse outcome arising from or in connection with the Customer’s interaction with any healthcare professional providing any Services accessed through the Platform. This includes negligence, malpractice or misconduct, as well as any side effects or consequences resulting from the healthcare professional’s Services.
• The Customer agrees to hold harmless and indemnify Foremind against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred arising out of the Customer’s interactions with any healthcare professional accessed through the Platform. This includes, without limitation, claims relating to the provision of advice, treatment, diagnosis, misconduct, malpractice, or any failure by a healthcare professional to meet applicable professional or legal standards, regardless of whether the practitioner is accessed via the Platform or through offline channels facilitated by Foremind.
• Some jurisdictions do not permit the exclusion or limitation of liability for certain types of loss or damage, including incidental or consequential damages. To the extent any such limitation or exclusion is not permitted by law, it does not apply. Nothing in this clause 23 affects any rights or remedies the Customer may have under the Australian Consumer Law or other applicable law that cannot be excluded or limited.

12. Professional Services
    • Foremind may, if expressly agreed in a Statement of Work, provide Professional Services to the Customer during the Term. Any such Professional Services fees will be charged on the basis agreed in a pricing schedule. Unless such Professional Services are agreed in writing, Foremind shall have no obligation to provide them.
13. Maintenance Services
    • Foremind may from time to time during the Term provide Maintenance Services to the Customer in respect of the Foremind Software but shall have no obligation to do so.
    • The Customer must apply each Update and Upgrade to the Software made available by Foremind through the Maintenance Services in a timely manner.
    • If the Customer does not apply an Update or Upgrade to the Software, then in Foremind’s discretion, the Customer may cease to have any right to use the Software until such time as it does so. The Customer acknowledges that Foremind may use technical measures to enforce this clause 3.
    • The Customer acknowledges that the supply and licensing of Upgrades to the Foremind Software may, at the discretion of Foremind, be subject to additional terms and conditions.
14. Support Services
    • From time to time during the Term, Foremind may provide Support Services to the Customer under an Employer Services Agreement, which may indirectly benefit the Customer. Foremind has no obligation to provide Support Services to the Customer under these Terms of Service.
    • Foremind may in its discretion, make a helpdesk available to the Customer for the purpose of providing the Support Services.
    • Any Support Services shall be provided remotely and relate only to the use of the Foremind Software.
    • Foremind shall have no obligation to provide Support Services in respect of any issue caused by:

• any issue outside the scope of the Employer Services Agreement;
• the improper use of the Software by the Customer; or
• any alteration to the Software made without the prior consent of Foremind.
  • The Customer acknowledges and agrees that Foremind gives no warranties or guarantees in relation to the outcome of the Support Services.

15. Customer Data
    • The Customer retains ownership of all data, works and materials uploaded, submitted or made available by Customer or its Authorised Users through the Platform (“Customer Data“).
    • The Customer grants to Foremind and its Related Bodies Corporate a non-exclusive, royalty-free licence to use, reproduce, store, distribute, and process Customer Data for the purposes of providing the Services and Customer hereby grants to Foremind and its Related Bodies Corporate a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of Foremind’s obligations and the exercise of Foremind’s rights under this User Licence Agreement these Terms of Service. The Customer also grants to Foremind and its Related Bodies Corporate the right to sub-license these rights to its service providers, subject to any express restrictions elsewhere in this User Licence Agreement these Terms of Service.
    • Foremind may generate, use and disclose de-identified, aggregated data derived from Customer Data and Platform usage, including to improve the Services, conduct analytics and support research, in accordance with the Privacy Policy.
    • The Customer warrants to Foremind and its Related Bodies Corporate that the Customer Data does not and will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
    • Foremind does not supervise, review, or monitor User Content in real-time and assumes no responsibility for the accuracy, legality, or appropriateness of any Customer Data uploaded, submitted or transmitted by the Customer through the Platform.
    • Foremind disclaims all liability for any direct or indirect loss, damage, or harm arising from or in connection with the Customer’s use of, reliance on, or exposure to any Customer Data. Customer and its Authorised Users access and use Customer Data at their own discretion and risk.
    • Foremind reserves the right to create, collect, use and store metadata and other diagnostic or usage data resulting from the Customer’s use of the Platform. This metadata may be used for purposes including, but not limited to, technical troubleshooting, operational management, search engine optimisation, analytics, and to support investigations or lawful requests by regulatory authorities or government agencies.
    • Foremind may use de-identified and aggregated data, including data relating to the Customer’s or its Authorised User’s interaction with the Platform and the Services, for the purpose of improving the Platform, enhancing its Services, and advancing Foremind’s internal research and commercial objectives. Any such use will be in accordance with its Privacy Policy.
16. Confidentiality
    • Each Party agrees to keep confidential, and not use for any purpose other than to perform these Terms of Service, or disclose to any third party, any information of the other Party that is reasonably regarded as confidential. This obligation does not apply to information that: (i) is or becomes publicly available through no breach of these Terms of Service; (ii) is lawfully known to the receiving Party at the time of disclosure, without restriction and through no breach of any obligation of confidentiality; (iii) is independently developed by the receiving Party without reference to or use of the disclosing Party’s confidential information; (iv) is disclosed with the prior written consent of the disclosing Party; (v) is required to be disclosed by law, regulation or court order, or mandatory reporting obligations, ethical guidelines or professional standards applicable to that Party or its personnel including as described in clause 2, provided where legally permitted and reasonably practicable the receiving Party gives written notice (where legally permitted) within a reasonable period and cooperates with the disclosing Party to seek a protective order or other remedy.
    • Customer acknowledges that where its Authorised Users engage in Counselling Services provided by a Foremind-appointed Counselling practitioner, those Services are subject to legal and ethical obligations that may limit the confidentiality of information disclosed by the Authorised User. Customer further acknowledges that Foremind provides an informational guide titled ‘Your Counselling and Mandatory Disclosures’, available online at https://foremind.com.au/your-counselling-and-mandatory-disclosures, which explains the specific circumstances under which a Counselling practitioner may be legally or ethically required to disclose confidential information shared by an Authorised User. Customer must, where requested by Foremind, ensure that each Authorised User is made aware of these confidentiality limitations, including by providing access to this guide prior to the Authorised User’s first Counselling session.
17. Privacy
    • Each Party agrees to comply with all applicable data protection, privacy and anti-spam laws in any relevant jurisdiction, including the Privacy Act 1988 (Cth).
    • By using the Platform, the Customer consents to Foremind collecting, using, processing and disclosing personal information (including sensitive information) in accordance with Foremind’s Privacy Policy, available at https://foremind.com.au/privacy-policy/, as updated from time to time.
    • The Customer agrees to obtain all necessary consents and authorisations from individuals, including Authorised Users, before providing any personal information to Foremind for the purposes of these Terms of Service, including so that such personal information may be collected, used, processed and disclosed by Foremind in accordance with its Privacy Policy.
    • Foremind may compile statistical and analytical information related to the use and performance of the Platform and the Services, and may generate de-identified insights from such information. Foremind may use and publicly disclose such statistical information, provided that it does not:

• include any personal information or identify any individual; or
• disclose or allow inference of the Customer’s confidential information.
  • Foremind retains all Intellectual Property Rights in aggregated or de-identified data, statistical outputs, and insights derived from use of the Platform, including any outputs adapted, compiled or generated by Foremind’s machine learning systems or professional expertise in connection with the Services.

18. Intellectual Property Rights
    • Nothing in these Terms of Service shall operate to assign or transfer any Foremind IP from Foremind to the Customer, or any Intellectual Property Rights of Users or the Customer to Foremind.
    • The Customer acknowledges and agrees that:

• as between the Parties, Foremind retains all right, title and interest in and to the Platform, Software and Services including all Intellectual Property Rights in any modifications, enhancements, updates or derivative works of the Platform, Software and Services, excluding Customer Data. To the extent any such rights may vest in the Customer, the Customer assigns those rights to Foremind on creation, with full title guarantee and free of encumbrances;
• the Customer has no rights in the Platform or any part of it, other than the limited licence rights expressly granted under these Terms of Service;
• any Intellectual Property Rights in feedback, suggestions or feature requests relating to the Platform that are provided by the Customer or its Authorised Users (each an “Improvement Suggestion”) shall be deemed to be owned solely by Foremind upon submission. The Customer hereby assigns all right, title and interest in and to such Improvement Suggestions to Foremind, effective immediately upon provision, including by operation of section 197 of the Copyright Act 1968 (Cth) and in equity. The Customer also consents to any acts or omissions by Foremind or its licensees that may otherwise infringe any moral rights the Customer may have in the Improvement Suggestions;
• the Customer must not take any step to invalidate or prejudice Foremind’s (or its licensors’) Intellectual Property Rights in the Platform or any associated materials.

19. Suspension and Termination of Services
    • Foremind may suspend or restrict the Customer’s access to the Services (in whole or in part), including the Platform, at any time:

• where the Customer or any Authorised User breaches these Terms of Service or any applicable policies;
• for non-payment of any Fees, including where any amount remains unpaid after its due date;
• if the Customer is subject to an insolvency event; or
• if any Authorised User engages in verbal, physical, written or other abuse (including threats of abuse or retribution) towards Foremind’s personnel or practitioners.
  • Suspension may remain in effect until all outstanding issues have been remedied to Foremind’s satisfaction, including payment in full of all overdue Fees. Foremind may, at its discretion, reinstate Services once remedial conditions are met.
  • Foremind may terminate the Customer’s access to the Platform and the Services by notice in writing:
• immediately, if the breach is not capable of remedy;
• if the Customer fails to remedy a remediable breach within 7 days of receiving written notice from Foremind;
• if the Customer fails to pay Fees that remain overdue for more than two consecutive months; or
• for any other cause expressly set out in these Terms of Service.
  • Where Foremind terminates this Agreement for cause under this clause or under clause 24 (Termination), the Customer will not be entitled to any refund of Fees, and all unpaid amounts will become immediately due and payable.
  • Termination does not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages for any pre-existing breach or the obligation to pay Fees.
  • Any provisions which by their nature are intended to survive termination shall continue in full force and effect following termination.

20. Warranties and Foremind Indemnity
    • Each party warrants to the other party that it has the legal right and authority to enter into these Terms of Service and to perform its obligations under these Terms of Service.
    • Foremind warrants to the Customer that to the best of its knowledge the Software, when used by the Customer in accordance with these Terms of Service, will not infringe the Intellectual Property Rights of any person.
    • If Foremind reasonably determines, or any third party alleges, that the use of the Software by the Customer in accordance with these Terms of Service infringes any person’s Intellectual Property Rights, Foremind may, acting reasonably and at its own cost and expense:
    • modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights; or
    • procure for the Customer the right to use the Software in accordance with these Terms of Service.
    • These clauses 2 and 20.3 represent Foremind’s sole obligations, and the Customer’s exclusive remedy with respect to Intellectual Property Rights infringement claims, except where such claims give rise to Foremind’s indemnity obligations under clause 20.7.
    • Foremind agrees to hold harmless and indemnify the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred as a result of a third-party claim that the Customer’s use of the Platform in accordance with these Terms of Service infringes that third party’s Intellectual Property Rights, except to the extent such loss is caused or contributed to by the Customer’s breach of these Terms of Service. This indemnity is subject to the Customer first exhausting the remedies in clauses 2 and 20.3.
    • All of the parties’ warranties and representations in respect of the subject matter of these Terms of Service are expressly set out in these Terms of Service. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms of Service will be implied into these Terms of Service or any related contract.
21. Acknowledgements and Warranty Limitations
    • The Customer acknowledges that the Software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms of Service, Foremind gives no warranty or representation that the Software will be wholly free from Malicious Code, defects, errors and bugs.
    • The Customer acknowledges that the Software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms of Service, Foremind gives no warranty or representation that the Software will be entirely secure.
    • The Customer acknowledges that it will be responsible for configuring its own technology to access the Platform Service.
    • The Customer acknowledges that Foremind will not provide any legal, financial, accountancy or taxation advice under these Terms of Service or in relation to the Software, Platform or Services; and, except to the extent expressly provided otherwise in these Terms of Service, Foremind does not warrant or represent that the Software or the use of the Software, Platform or Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
    • The Customer acknowledges that where the Software or website of Foremind contains links to other sites (including banner advertisements and sponsored links) and resources provided by third parties, these links are provided for the Customer’s information only. Such links should not be interpreted as approval by Foremind of those linked websites or information the Customer may obtain from them. Foremind has no control over the contents of those sites or resources, and the Customer accesses third party websites entirely at their own risk and subject to the terms and conditions of use for those websites.
22. Customer Indemnity
    • The Customer shall indemnify and shall keep indemnified Foremind and its Related Bodies Corporate indemnified against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Foremind and arising directly or indirectly: (a) as a result of any breach of these Terms of Service by the Customer or any Authorised User; or (b) any unlawful or unauthorised use of the Services.
    • We reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you will cooperate with our defence of these claims. You will not settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
23. Limitations and Exclusions of Liability
    • Nothing in these Terms of Service will:

• limit or exclude any liability for death or personal injury resulting from negligence;
• limit or exclude any liability for fraud or fraudulent misrepresentation;
• limit any liabilities in any way that is not permitted under applicable law; or
• exclude any liabilities that may not be excluded under applicable law, and,
• if a party is a consumer, exclude, restrict, or modify any rights or remedies that the Customer may have under the Australian Consumer Law (“non-excludable guarantee”), except to the extent permitted by law.
  • Notwithstanding clause 1(e), as our Services are not of a kind ordinarily acquired for personal, domestic or household consumption, if we are liable for a breach of any such implied ‘non-excludable guarantee’, we may, at our election, lawfully limit our liability pursuant to section 64A of the Australian Consumer Law, where it is fair and reasonable to do so, to supplying the services again or paying the cost of having the services supplied again, notwithstanding clause 23.6, such remedy shall be Customer’s sole remedy in respect of such ‘non-excludable guarantees.
  • In no case will Foremind or its representatives be liable for any indirect, special, consequential, exemplary, punitive damages or other damages, or for any losses, damages, liabilities, costs or expenses arising out of or relating to:
  • Customer or its Authorised User’s access, use, misuse or inability to access or use the Platform or Services;
  • the interruption, suspension or termination of any part of or all of the Platform or Services; or
  • a Force Majeure Event;

in each case regardless of the cause of action (whether in contract, warranty, tort, negligence, strict liability or any other theory of liability), and even if Foremind or its representatives have been advised of the possibility of such damages.

• Customer expressly understands and agrees that Foremind and its representatives shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including but not limited to damages for loss of profits, goodwill, lost revenues or business opportunities, loss of use, data or other intangible losses, in contract, tort, strict liability, negligence, general civil liability or any other cause of action under legal or equitable theory, relating to the Platform or Services, any information on or downloaded from the Platform or Services, activities arising from use of the Services (including Counselling Services, Professional Services), or any third-party materials made available via the Platform or Services.
• This limitation of liability applies, without limitation, to any damages or injury caused by any error, omission or other failure of performance by Foremind or its representatives; any interruption, defect or delay in operation or transmission, including communication line failure; any computer virus; and any theft, destruction or alteration of, or unauthorised access to or use of, any electronic records.
• Subject to clauses 1 and clause 23.2, notwithstanding anything to the contrary in these Terms of Service, in no event will Foremind’s aggregate liability for any claims in connection with Customer’s and its Authorised User’s use of the Platform or Services in respect of any and all events or series of related events for the Term exceed the greater of:
• AUD$500; or
• 50% of the total Fees paid or payable by Customer in the twelve (12) month period immediately preceding the event giving rise to the claim.
• Some jurisdictions do not permit the exclusion or limitation of liability for certain types of loss or damage, including incidental or consequential damages. To the extent any such exclusion or limitation is not permitted by law, it will not apply. Nothing in this clause 23 affects any rights or remedies the Customer may have under the Australian Consumer Law or any other applicable law that cannot be excluded or limited.

24. Termination
    • In addition to Foremind’s suspension rights, Foremind may terminate these Terms of Service in the event of a breach of any of the provisions of these Terms of Service by the Customer, or without the need to specify a cause immediately. Foremind may communicate termination by disabling the Authorised User’s Login account which may occur as a result of a determination made by Foremind in its discretion or in accordance with an applicable Employer Services Agreement.
    • These Terms of Service shall terminate for all Users immediately and without notice upon termination of the Employer Services Agreement with the related Customer.
25. Effects of termination
    • Upon the termination of these Terms of Service, all of the provisions of these Terms of Service shall cease to have effect, save that the following provisions of these Terms of Service shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): 2 (Electronic formation), 3 (Licence and Limitations), 5 (Reputation), 6 (Copyrighted Material), 7 (Source Code), 8 (User Login and Access Credentials), 9 (Provision of Services – General Commitments and Conditions), 11.6, 11.7, 13.4, 14.5, 15 (Customer Data ), 16 (Confidentiality), 17(Privacy), 18 (Intellectual Property Rights), 19 (Suspension and Termination of Services), 20 (Warranties), 21 (Acknowledgements and Warranty Limitations), 22 (Customer Indemnity), 23 (Limitations and Exclusions of Liability) 24 (Termination), 25 (Effects of termination).
    • Except to the extent that these Terms of Service expressly provides otherwise, the termination of these Terms of Service shall not affect the accrued rights of either party.
26. Amendments
    • Foremind may vary these Terms of Service from time to time. If so, Foremind will publish the updated Terms of Service on the Platform and may also notify the Customer by other means, such as via email or in-Platform notice. The updated Terms of Service will take effect immediately upon publication unless otherwise stated.
    • Where a variation constitutes a material change to the Customer’s rights or obligations under these Terms of Service, Foremind will provide the Customer with at least 30 days’ prior written notice. If the Customer does not agree to the amended terms, it must notify Foremind in writing and cease using the Platform and Services before the effective date of the change. Continued use of the Platform or Services following the effective date will constitute acceptance of the amended Terms of Service.
    • For changes that do not materially alter the relationship between the Customer and Foremind, no prior notice is required beyond publication of the revised Terms of Service on the Platform in accordance with clause 1.
27. General
    • No breach of any provision of these Terms of Service shall be waived except with the express written consent of the party not in breach.
    • If any provision of these Terms of Service is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms of Service will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
    • The Customer hereby agrees that Foremind may assign Foremind’s contractual rights and obligations under these Terms of Service to its Related Bodies Corporate OR to any successor to all or a substantial part of the business of Foremind from time to time OR to any third party, providing that, if the Customer is a consumer, such action does not serve to reduce the guarantees benefiting the Customer under these Terms of Service. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of Foremind assign, transfer or otherwise deal with any of the Customer’s contractual rights or obligations under these Terms of Service.
    • Foremind may subcontract the performance of any of its obligations under these Terms of Service. This includes the engagement of third-party vendors, contractors, and hosting partners to support the operation and delivery of the Platform and related Services, including infrastructure, software, networking, data storage, payment processing, analytics, and technical support.
    • Foremind may also engage independent third-party counselling professionals to deliver the Counselling Services. The Customer acknowledges that Counselling Services are facilitated by Foremind but delivered by such independent providers.
    • The use of subcontractors or third-party providers does not relieve Foremind of its obligations under these Terms of Service. Foremind remains responsible for ensuring that any subcontracted services comply with these Terms of Service, and will ensure that all subcontractors are bound by confidentiality and data protection obligations that are materially no less protective than those set out in these Terms of Service.
    • These Terms of Service is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to these Terms of Service are not subject to the consent of any third party.
    • The Agreement shall constitute the entire agreement between the parties in relation to the subject matter of these Terms of Service, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
    • Any queries about these Terms of Service should be sent to us by email at support@foremind.com.au
    • These Terms of Service shall be governed by and construed in accordance with the laws of the Australian Capital Territory in Australia.
    • The courts of Australian Capital Territory in Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with these Terms of Service.
    • Any notice required or permitted to be given under these Terms of Service must be in writing and delivered by email to the notice addresses specified in the Employer Services Agreement. For foremind this is support@foremind.com.au. A notice sent by email is taken to be received when the sender receives confirmation that the message has been delivered to the recipient’s email server, unless the sender receives an automated message indicating that the email was not delivered.
28. Interpretation

In these Terms of Service, a reference to a statute or statutory provision includes a reference to:

• that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
• any subordinate legislation made under that statute or statutory provision.

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