TECARE TERMS OF
SERVICE
1
Parties, order of precedence, agreement
(a)
The parties to
this agreement are TeCare (ACN 655828489) ("TeCare",
"our", "we", "us") and the person(s) ("you", "your") accessing the website or a
software application supplied by TeCare ("Software"), purchasing a TeCare
product ("Product") or a TeCare Service ("Service").
(b)
You accept these Terms
of Service when you access the Software, engage TeCare, make any payment to us or
receive any Products or Service from us, whichever is earlier.
(c)
These Terms of
Service may be supplemented by additional terms on our Software or as otherwise
agreed between you and us, and together form the agreement between you and us.
To the extent of any conflict or inconsistency between these Terms of Service
and additional terms, the additional terms will prevail to the extent of that conflict
or inconsistency.
(d)
Use of
third-party services are also subject to third-party terms and conditions.
These third-parties may include payment gateway providers, commercial partners,
hardware manufacturers and internet service providers.
2
Products – Hub and Camera, Additional
Hardware
(a)
Services require
the purchase of an internet connected hub ("Hub") and at least one TeCare camera
("Camera"). The price of the Hub and Camera is set out on the Website and may
be changed by us from time to time.
(b)
Risk in the Hub
and Camera pass on when it is dispatched from our premises, title passes on
receipt by us of the full price.
(c)
Services are also
accessible via other selected hardware such as activity trackers, mobile phones,
computers and tablets ("Additional Hardware"). TeCare does not supply
Additional Hardware and you are solely responsible for purchasing and ensuring Additional
Hardware is in proper working order, properly configured and is compatible with
the Services.
3
Services – Description and minimum
requirements
(a)
We will provide
the Service to you in exchange for you paying the price of the Hub and Camera
and the Fees to us, subject to the provisions of this agreement.
(b)
The Service is a
cloud-based system to continuously monitor the activities of you or your dependants
and sends instant notifications if it detects an anomalous event such as a fall,
unusual movement or occurrence, or the presence of a third-party ("Event"), the
Service sends notifications directly to nominated mobile devices, computers or
tablet ("Alerts").
(c)
The Services allow
you to access:
(i)
the TeCare
Software platform which identifies Events and sends Alerts;
(ii)
a cloud-based
storage system which stores and displays records of Events; and
(iii)
any associated
subscriptions, content services, accounts, mobile apps, streaming video sites,
technical support and services accessible via the Software.
(d)
The Hub, Camera, Services
and your own Additional Hardware require reliable and continuous electricity
and always-on broadband internet access and other system elements that may be
specified by us, and will not operate without these. You are responsible for
the provision and cost of supplying electricity and always-on broadband internet.
It is your responsibility to ensure that you have all required system elements
and that they are compatible and properly configured.
(e)
TeCare is not
obligated to make any updates available. TeCare does not guarantee that it will
support the version of the system or device for which you purchased or licensed
the software, apps, content, or other products. TeCare may stop supporting
devices or operating systems that it previously supported.
4
Services – Accounts
(a)
You must be at
least 18 years of age to sign up for the Services, and by signing up for the
Services you confirm that you are at least 18 years old. If you are under 18,
do not attempt to register or send any information about yourself to us unless
we have received consent from your parent or legal guardian.
(b)
Registration of a
TeCare account is required to access the Services. To register, you must
provide and maintain accurate information, which may include your and your
dependant"s:
(i)
name
(ii)
username;
(iii)
address;
(iv)
e-mail address;
and
(v)
contact numbers
You agree to
provide and maintain accurate and complete user information, and we may
terminate your account if you provide us with inaccurate or incomplete user
information. You also warrant that you are legally permitted to use and access
the Services and provide third-parties" information.
(c)
You are required
to create a password and account designation during the registration process.
You are responsible for maintaining the confidentiality of the password and
account and are fully responsible for all activities that occur under your
password or account. You agree to properly protect your account by, for
example, exiting from or logging out of your account at the end of each
session. You will also immediately notify us of unauthorised use of your
password or account.
(d)
We will not be
liable for any loss or damage arising from your failure to comply with this
clause 4. We may refuse registration of or cancel an account designation at our
discretion.
5
Services - Limitations
(a)
You acknowledge
and agree that the Services are provided on a best-efforts basis. The
performance of the Services is affected by variables outside of our control
including position of the Camera, available lighting, internet speed, angle and
position of a person"s face or body and movement. As such, from time to time, Alerts
may not be triggered, may be delayed or may be incorrectly triggered ("Error").
(b)
The Services are
supplementary to the monitoring and care of yourself or your dependant and you
must not solely rely on the Services for the safety and wellbeing of yourself
or your dependant. The Products and Services do not replace emergency, medical,
nursing or carer services and are not a health monitoring system.
(c)
The Products and Services
cannot eliminate occurrences of incidents, including, but not limited to fires,
floods, burglaries, robberies, and medical issues. We make no guarantee or
warranty, including any implied warranty of merchantability or fitness for a
particular purpose, that the products or services provided will detect or avert
such incidents or their consequences. We do not undertake any risk that you or
your property, or the person or property of others, may be subject to death,
injury or loss if such an incident occurs. The allocation of such risk remains
with you, not us.
(d)
You release and
hold harmless us and our officers, employees, contractors and agents
("Associates") and from all liability in relation to any Error or any reliance
you or your dependant may place on the Product or Services.
(e)
You acknowledge
and agree that where the Services incorporate or are dependent on third-party
services or data, including for example cloud storage or third-party data
processing, TeCare has no control over the quality of the third-party services,
and makes no warranty of continued availability.
6
Services – Content
(a)
We and our
Associates do not view your photographs or videos ("Content") without your
permission unless compelled by law, but you agree that we and our Associates
will have the right (but not the obligation) in their sole discretion to screen
and/or remove Content that is made or attempted to be made publicly available.
We may also refuse or remove Content that may breach any law or regulation.
(b)
Without limiting
the foregoing, we will have the right at any time to remove any Content that we
believe is or may be illegal, offensive or inappropriate (including, but not
limited to, removal upon receipt of claims or allegations from third parties or
authorities relating to such Content), or for no reason at all.
(c)
You grant us the
right to maintain a copy of the Content (including all related intellectual
property rights) for archival and legal purposes.
7
Services – Changes
(a)
To the extent
possible under the governing law, we may, at our discretion and without notice
or user permission, change, add, or remove features and functionality of the
Services. If you are dissatisfied with any material changes initiated by us to
the Services during a subscription, you may immediately terminate your use of
the TeCare Services by notice to us and you will be entitled to a pro-rated
refund of any of your paid for, but unused, subscription as a form of credit to be used for TeCare or it"s subsidiaries.
(b)
We are under no
obligation to provide any or every feature and functionality to your Products, Services
or Additional Hardware and may, at our discretion, discontinue the provision of
software updates to certain Products, Services or Additional Hardware, or
support for Additional Hardware. Because different Products and Additional
Hardware may support different features and functionality, the level of service
we provide may not be the same for each Service or user.
8
Payments
Payment amount, frequency and method
(a)
In consideration
of the provision of the Products and Services in accordance with this
agreement, you will pay TeCare the price of the Products and Fees as set out on
the website and in accordance with the subscription plan you choose.
(b)
You acknowledge
that unless otherwise stated, the price of the Products and the Fees are
exclusive of any GST that may be charged by TeCare to you, and therefore, TeCare
will be entitled to add on GST, if applicable.
(c)
The price of
Products is payable in advance. Fees are payable monthly in advance via Stripe
or other payment platform we provide.
(d)
Late payments are
subject to interest calculated at a rate of 5% per month until fully paid.
(e)
Without limiting
our other rights, we may suspend or terminate your access to the Services for
late or non-payment.
9
Trials and Products or Services provided
without charge
(a)
Your subscription
may start with a free trial or promotional subscription fee that automatically
converts to a full-priced paid subscription upon expiration of the trial or
promotional period. If so, unless you cancel your subscription prior to the end
of the free trial period, we will begin billing your payment method on a recurring
basis for your subscription fee (plus any applicable taxes) upon expiration of
the free trial period until you cancel or we terminate your subscription. You
may not receive a notice from us that your free trial has ended or that the
paid portion of your subscription has begun.
(b)
We reserve the
right, in our absolute discretion, to determine your free trial eligibility. If
we agree to provide Products or Services free of charge or on a trial basis,
then those Products or Services are provided on an as-is basis and we make no
warranty as to suitability, quality or fitness for purpose of those free or
trial Products or Services, even if we have been notified of your requirements
in advance. We may withdraw, terminate, suspend or require the return of any
free or trial Product or Service.
10
Use of subcontractors
(a)
We may use other
persons to provide some or all of the Services.
(b)
Any work
undertaken by any of TeCare's employees or subcontractors will be undertaken to
the same standard as stated in this agreement.
(a)
You agree to the collection, use and
storage of the following personal and sensitive information on your own behalf
and any third-parties whose information is incorporated in any data you supply
to TeCare, including:
(i) identifying information
such as image, voice, name and date of birth;
(ii)
contact information; and
(iii)
health related information ("Personal Information")
(b)
We may use the Personal Information
collected from you to provide you with information, updates, marketing material
and our Services, and for our research and development purposes.
(c)
We may contact you by a variety of
measures including, but not limited to telephone, email, sms or mail.
(d)
We may disclose Personal Information to third-parties
including persons you nominate to receive Alerts, persons who have access to
your Account, our employees, officers, insurers, professional advisers, agents,
suppliers, service providers, or subcontractors insofar as reasonably necessary
for the provision of our Services. Personal information is only supplied to a third-party
when it is required for the delivery of our Services or to enforce our rights.
(e)
You warrant that you have obtained all
necessary consents to collect, store, use and disclose Personal Information to TeCare
for the purposes contemplated by this agreement, and you warrant that you
comply with the Privacy Act 2001 (Cth),
and the Health Records and Information
Privacy Act 2002 (NSW) and any similar or relevant equivalent legislation
that may apply in another Australian state or territory.
(f)
You agree to indemnify TeCare for all
costs, damages, claims, charges, loss and liability for a breach of the warranty
in 11(e).
(g)
The terms of TeCare"s Privacy Policy as
amended from time to time are incorporated in these Terms of Service.
12
Warranties, liability and indemnities
12.1
Warranties
(a)
TeCare warrants
that it will use reasonable care and skill in performing the Services to the standard
generally accepted within the industry, sector or profession in which TeCare
operates for the type of Services provided by TeCare.
12.2
Limitation of
liability
(a)
Except in the
case of death or personal injury caused by TeCare's negligence, or in the case
of any breach of an implied warranty that TeCare is unable to exclude under the
Competition and Consumer Act 2010 (Cth),
the liability of TeCare for any loss or otherwise under or in connection with
this agreement whether arising in contract, tort, negligence, breach of
statutory duty or otherwise must not exceed the fees paid by You to TeCare under
this agreement in the 12 months preceding the event giving rise to the alleged
liability.
12.3
Australian
Consumer Law
If TeCare is found to be liable for breach of any warranty or condition
implied by statute and which it cannot lawfully exclude (such as under the Competition and Consumer Law Act 2010 (Cth)), then TeCare"s liability is
limited (to the extent permitted by law) at its option to the following:
(a) in the
case of goods supplied or offered by it:
(i) to the supply of
those goods again; or
(ii) to the payment of the
cost of having those goods supplied again; or
(b) in the case of services
supplied or offered by it:
(i) to the supply of the
services again; or
(ii)
to the payment of the cost of
having services supplied again.
12.4
No reliance
Both you and we acknowledge that, in entering into this agreement, you
and we do not do so in reliance on any representation, warranty or other
provision except as expressly provided in this agreement. Any conditions,
warranties or other terms implied by statute or common law are excluded from
this agreement to the fullest extent permitted by law.
13
No warranty of success or continuous availability
(a) You acknowledge and
agree that notwithstanding any other clause in this agreement, that:
(i) due to the nature of
the Services; and
(ii) without limiting the
generality of (i) above, the Services are dependent on factors outside of TeCare"s
control,
and as such, TeCare
cannot and does not provide any warranty, guarantee or representation that the
engagement of TeCare or the provision of the Products or Services will result
in any improvement in safety, health or wellbeing or the avoidance of any
incident.
(b) TeCare makes no
representation or warranty that the data, output or access in connection with
the Services will be available after the end of the subscription period or if
it is deleted by you or a person outside of our control.
(c) TeCare makes no
representation or warranty that any third-party data, software, service output
or access in connection with the Services will be continuously available. If
third-parties" services are interrupted, suspended or discontinued, TeCare will
not be in breach of this agreement as a result.
14
Intellectual Property
(a)
All intellectual
property which is owned by, or is proprietary to, a party at the Commencement
Date shall remain owned exclusively by that party.
(b)
You grant us with
a free and perpetual licence to use, modify and transfer any Content.
(c)
The intellectual
property in the Products and Services remain at all times with us as owner or
licensee of a third-party as the case may be.
(d)
Any new
intellectual property (excluding any Content, but including any information,
design, data, specification know-how or any other form of intellectual
property) whether or not created specifically for you as a result of, or in
connection with, the provision of the Products or Services ("New
Intellectual Property") will be the absolute property of
TeCare and you shall have a
non-exclusive licence to use the New Intellectual Property to the extent
required to give effect to this agreement.
(e)
To the extent
that this Agreement does not operate as a transfer of any New Intellectual
Property to TeCare, then, on demand and free of charge, you will (even after
the Term) do all things necessary (including executing any relevant
documentation) to transfer all rights and interests in that New Intellectual
Property to TeCare or its nominee.
15
Termination
(a)
Either you or we
may terminate this agreement by notice in writing to the other if the party notified:
(i)
fails to observe
any term of this agreement; and
(ii)
fails to rectify
this breach, to the satisfaction of the notifying party, following the expiration
of 14 days" notice of the breach being given in writing by the notifying party;
or
(iii)
immediately if
the other party breaches a warranty.
(b)
Either you or we
may terminate this agreement upon the happening of any of the following events:
(i)
if the party
being an individual, commits an act of bankruptcy or is otherwise unable to pay
their debts as and when they fall due
(ii)
if the other party
enters into a deed of arrangement or an order is made for it to be wound up;
(iii)
if an
administrator, receiver or receiver/manager or a liquidator is appointed to the
other party pursuant to the Corporations
Act 2001 (Cth); or
(iv)
if the other party
would be presumed to be insolvent by a court in any of the circumstances
referred to in the Corporations Act 2001
(Cth); or
(v)
the transactions
contemplated by the agreement is or becomes unlawful in the place where the
Services are to be performed.
(c)
Upon termination
of this agreement any fees, expenses or reimbursements payable by you to TeCare
in respect of any period prior to the termination date must be paid by you
within 14 days after the Termination Date.
(d)
This agreement
automatically ends at the end of any agreed subscription period.
16
General
16.1
Force majeure
(a)
Neither you nor
we have any liability under or may be deemed to be in breach of this agreement
for any delays or failures in performance of this agreement which result from
circumstances beyond its reasonable control.
(c)
If such
circumstances continue for a continuous period of more than 3 months, either
Party may terminate this agreement by written notice to the other Party.
16.2
Amendment
(a) We may amend this agreement by notice to you or otherwise in accordance with the agreement.
(b) You may amend this agreement may only with our express written consent.
16.3
Survival
Clauses 4(b), 5, 11, 12, 15(c),
16.1,16.3,16.8, and 16.9 survive the termination or expiry of this agreement.
16.4
Entire agreement
(a)
This agreement contains
the whole agreement between you and us in respect of the subject matter of the
agreement.
(b)
You and we confirm
that neither you nor we have not entered into this agreement on the basis of
any representation that is not expressly incorporated into this agreement.
16.5
Waiver
(a)
No failure or
delay by us in exercising any right, power or privilege under this agreement
will impair the same or operate as a waiver of the same nor may any single or
partial exercise of any right, power or privilege preclude any further exercise
of the same or the exercise of any other right, power or privilege.
(b)
The rights and remedies
provided in this agreement are cumulative and not exclusive of any rights and
remedies provided by law.
16.6
Severance
If any provision of this agreement is prohibited by law or judged by a
court to be unlawful, void or unenforceable, the provision will, to the extent
required, be severed from this agreement and rendered ineffective as far as
possible without modifying the remaining provisions of this agreement and will
not in any way affect any other circumstances of or the validity or enforcement
of this agreement.
16.7
Notices
A notice or other communication connected with this agreement has no
legal effect unless it is in writing. A notice must be sent by pre-paid post to
the address of the addressee or sent by email to the email address of the
addressee.
16.8
Dispute
resolution - Mediation
(a) The
parties shall endeavour to settle any dispute arising out of or relating to
this agreement, including with regard to its existence, validity or
termination, by mediation administered by the Australian Disputes Centre (ADC)
before having recourse to arbitration or litigation.
(b) The mediation shall be
conducted in Sydney, New South Wales in accordance with the ADC Guidelines for
Commercial Mediation operating at the time the matter is referred to ADC (the
Guidelines).
(c) The terms of the
Guidelines are hereby deemed incorporated into this agreement.
(d) The services
under the agreement shall be suspended while a dispute remains unresolved.
16.9
Law and
jurisdiction
This agreement takes effect, is governed by, and will be construed in
accordance with the laws from time to time in force in New South Wales, Australia.
The parties submit to the non-exclusive jurisdiction of the courts of that
State.