mCareWatch Terms and Conditions
Service Agreement. You acknowledge that mCare Digital Pty Ltd (ABN: 32161052571) (“mCareWatch™”) is not willing to enter any agreement, express or implied, to sell or provide you with a device or services except pursuant to all the terms and conditions outlined in this mCareWatch™ Service Agreement. By using our Devices and Services, you are agreeing to these terms. Please read them carefully. Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services. mCareWatch™ disclaims all representations, warranties and liabilities, express or implied in connection with the provision of its devices and services other than in accordance with all the terms and conditions set within the mCareWatch™ Service Agreement (the “Agreement”), which follows: Customer (referred to as “you”) agrees to buy the mCareWatch 4G or the mCareMate 4G Alarm (the “Devices”) on an mCareWatch Service Plan which includes a SIM card with voice calls, data and access to the mCareWatch™ and ConnectiveCARE software and subscribing to the services (“Services”) provided by mCare Digital Pty Ltd (referred to as “us” or “we”) described above. You understand and agree that our duties and obligations to provide the Device and Services arise exclusively out of this Agreement and not otherwise. If anyone other than the Customer is the user of the Devices, such User is a third party beneficiary to this Agreement and is bound by all of the terms herein, including, without limitation, our disclaimer of warranties and limitation of liability.
1.1 The Services include the services that mCareWatch™ uses commercially reasonable efforts to provide to you while your subscription with mCareWatch™ remains in effect, pursuant to the terms and conditions of this Agreement, as we may modify this Agreement as provided in Section 18. During the term of this Agreement we shall provide Services for the Devices in accordance with the provisions set forth in this Agreement, and the instructions provided on your Information Form. Services will not begin and we will have no obligation to process notifications received from the Devices until we have received and processed (a) a copy of this Agreement electronically signed by you; and (b) your completed Information Form. You understand and agree that you have chosen this Service.
1.2 mCareWatch™ offers you the option for the Service to be connected to an independently owned and operated mobile personal emergency response system (“mPERS”) that mCareWatch™ has selected. If you choose to subscribe to the mCareWatch Service, an emergency call will be directed to one caregiver (family or friend) if the emergency button on the Device is pressed (Basic and Standard Plans) and an emergency call will be directed to our 24/7 Monitoring Service (for Premium Plan).
1.3 The mCareWatch™ is to be used primarily as a personal emergency notification and medical alert device, enabling a two-way communication between the user (“Watch wearer”) and the user’s nominated caregiver (“Basic and Standard Plan”) or Monitoring Service (“Premium Plan”). It also allows carers and family members to call the Device outside of an emergency situation.
1.4 Charging the Device every 24 hours is recommended and every 3-4 days for the mCareMate 4G Alarm. If the geo-fence functionality or other features such as non-movement or GPS tracking has been activated by the carers then a recharge on a more frequent basis will be required. Please refer to the Product User Manual for battery use and tips.
1.5 mCareWatch™ has subsidiaries and legal entities (“Subsidiaries and Affiliates”) which may provide the Service to you on behalf of mCareWatch™. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
- Price, Monthly Service Fee and Terms
2.1 To purchase the mCareWatch™, you must purchase the watch and select an ongoing Service Plan option. All purchases must include the Device with setup and activation, which is priced at $499. The Basic Plan includes access to the mobile apps (iOS and Android) for up to three (3) carers and access to the carer’s ‘ConnectiveCARE’ platform for up to three (3) carers. The Standard and Premium Plans include access to the mobile apps (iOS and Android) for up to six (6) carers and access to the carer’s ‘ConnectiveCARE’ platform for up to six (6) carers. The mCareMate is $299 plus $99 setup and activation and the Annual Service Plan is $249.
2.2 The Basic Service Plan includes mCareWatch SIM card service plan with 30 minutes of national outgoing voice calls for emergencies and 25MB of data per month. If these minimum thresholds are exceeded during anytime of the month, a flat fee of $15 (incl. GST) will be charged for an additional 30 minutes of outgoing voice calls and 25MB of data to be used during that same month. The additional voice calls and data cannot be accrued and can only be utilised in the same month.
2.3 The Standard and Premium Service Plans include mCareWatch SIM card service plan with unlimited minutes of national outgoing voice calls and 1GB of data per month. If the minimum data thresholds are exceeded during anytime of the month, a flat fee of $20 (incl. GST) will be charged for an additional 1GB of data to be used during that same month. The additional data cannot be accrued and can only be used in the same month.
2.4 All purchases are final and no refund will be given for unused portions of your service payment plan.
2.5 All mCare SIM card Service Plans will automatically renew based on your initial term you selected. Your Service Plan will continue for the length of the initial term you select on your plan and at the end of your Service Plan, it will automatically renew for additional prepaid periods of the same length unless you choose to cancel prior to that renewal by calling our helpline on 1300188557 (Australia only).
2.6 Automatic Payment. You authorise and agree that all amounts due to mCareWatch™ under this Agreement, including the Service Plans (includes start-up activation fee, delivery and all Service Monthly Fees), are to be paid by automatic credit card debit pursuant to the credit card information you provided via STRIPE or PayPal. If your payment is not honoured, we may: (i) demand payment and you agree to pay the amount due; and/or (ii) choose to terminate this Agreement by giving you notice. Such termination does not relieve you of your obligation to pay for Services provided prior to such termination.
2.7 Payment Terms. You agree to pay all sales, service, or late charges, if applicable, whether imposed on you or us. Late fees apply if your renewal is not paid by the due date. For invoices overdue by 1-14 days a late payment of $15 is payable. For invoices overdue by 15 – 29 days a late payment of $30 is payable. Any invoice overdue by 30 days or more will have the Service deactivated and a reactivation fee of $60 is payable to reactivate the Service.
3.0 mCareWatch™ Account. You may need an mCareWatch™ Account in order to use some of our Services. You may create your own mCareWatch™ Account, or your mCareWatch™ Account may be assigned to you by an administrator, such as your employer or educational institution. If you are using an mCareWatch™ Account assigned to you by an administrator, additional terms may apply and your administrator may be able to access or disable your account. If you create your own mCareWatch™ Account, you are solely responsible for maintaining the confidentiality of your account and password(s), and you agree to accept responsibility for all activities that occur under your account or password. If you learn of any unauthorized use of your password or account or other breach of security, you agree to immediately notify mCareWatch™ Customer Support (tel: 02 80464860).
3.1 Content in our Services. Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you is yours. When you upload or otherwise submit content to our Services, you give mCareWatch™ (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to mCareWatch™ Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Please ensure you have the rights to grant us this license for any content that you submit to our Services and you warrant and undertake that your submission of such materials to mCareWatch™ does not and will not violate or infringe the rights of any third-parties.3.2 About Software in our Services. When a Service requires or includes downloadable software, this software may update automatically on your Device once a new version or feature is available. Some Services may let you adjust your automatic update settings. mCareWatch™ gives you a personal, Australia-wide, royalty-free, non-assignable, non-sublicensable, non-exclusive, revocable, license to use the software provided to you by mCareWatch™ as part of the Services and Devices (“Software”). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services and Devices as provided by mCareWatch™, in the manner permitted by these terms. You may not copy, alter, assign, transfer, sub-licence, merge, adapt, modify, distribute, sell, or lease any part of our Services or included Software. You may not disassemble, decompile, reverse engineer, attempt to extract the source code of or create any derivative works based on, that Software. You may not use the Software in a way that could damage, disable, overburden, impair or compromise the security of the Software or mCare Watch™. You may not collect or harvest any information or data from the Software. You may not use the Software other than for the purpose in which you are provided access, nor are you permitted to use the Software in an unlawful, disingenuous, inappropriate, fraudulent or malicious manner, or in any manner inconsistent with this Agreement (as determined by mCareWatch™). Open source software is important to us. Some software used in our Services may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
- The Device and Services have certain limitations. In consideration for the provision of the Device and Services, you acknowledge that we do not represent or warrant that the Device or Services will prevent death, bodily or personal injury, or any other injury or damage to you or others who use the Device. We have no control over the response time or capability of any person who may be notified as a result for the Device being used. You further understand that the Device may fail to function properly. You agree that if we were to have any liability greater than that agreed to by you pursuant to section 12 of this Agreement, we could not and would not provide the Device or Services. You acknowledge that you must obtain any life, medical or disability insurance for the protection of yourself and others who may use the Device (before using the Services and Devices).
- Monitoring Service. Customers on the Premium Plan or with the 24/7 Monitoring Service Plan acknowledge that signals which are transmitted through networks are beyond the control of mCareWatch™ and are not maintained by mCareWatch™, therefore mCareWatch™ shall not be held responsible for any equipment or communication failure that prevents communication from a Device reaching mCareWatch™ monitoring service. The Monitored Service Customer agrees to provide mCareWatch™ with a written list of names, contact numbers of all people the customer wishes to receive notification as well as a list of any medical condition or allergies and an escalation procedure when the emergency button is activated by the monitored service Customer. It is the monitored Service Customer’s responsibility to ensure any changes or updates to contact names, numbers or medical condition is communicated to mCareWatch™ in writing via email at firstname.lastname@example.org.
5.1 Unless otherwise provided in the Call List mCareWatch™ will make reasonable effort to contact the first person reached or notified on the Call List either by telephone, SMS text or email. Where the first contact person is unable to be contacted, mCareWatch™ will try and contact the second emergency contact person as specified on the Call List. Where mCareWatch™ has attempted to contact the Emergency Contact List without reaching them, mCareWatch™ shall and if possible contact emergency services (ambulance or police) as specified in the Monitored Service Customer’s escalation procedure instructions and in accordance with the relevant authority’s operating procedures and the laws or regulations governing those authorities.
5.2 The Monitored Service Customer consents to the emergency services (police or medical emergency authorities) using force if necessary to enter the Customer’s location or premises where the customer is located at the time of the emergency at the Customer’s cost. mCareWatch™ will not accept responsibility or liability for any damage, cost or loss caused by these authorities in regard to the Monitored Service Customer or otherwise.
5.3 Performance Monitoring. You acknowledge and understand that mCareWatch™ may (from time to time) monitor the Watch Wearer’s use of the Device, and you consent to mCareWatch™ collecting, using and aggregating technical information and data regarding, the operational efficiency and performance of the Devices, for the purposes of improving the Services that are provided to you.
5.4 Access to Location Data. You hereby authorise your nominated caregiver and emergency contacts (“Nominee”) to access your location data and other personal data, relating to your use of the Device and Services, from time to time, at their sole and exclusive discretion (Device Data). Where a Nominee enters into this Agreement on behalf of the Watch Wearer, the Nominee hereby warrants and undertakes that the Watch Wearer has authorised the Nominee to access the Watch Wearer’s Device Data.
- Receipt of Copy.
You agree that a complete copy of this Agreement was made available to you on the mCareWatch™ website. You further acknowledge and agree that this Agreement was negotiated and entered into solely by your use of our website.
7.1 The warranty lasts and is provided in accordance with the respective local laws, as standard for a period of twelve (12) months for the Host unit, six (6) months for the battery and charger from the date of purchase of the product, and is only applicable if you have purchased the product from mCareWatch™. During the Warranty period, mCareWatch™ or its authorised service network will repair or replace, at mCareWatch’s option, the product or any relevant parts thereof in the event that the product is found to be defective. The repaired product or the product/part provided as a replacement for a defective product/part shall be free from defect. Repair or replacement of a product may involve the use of functionality equivalent reconditioned unit. The purchaser of the product or his/her assignee (“Consumer”) shall not be charged (whether for parts, labour or otherwise) for the repair or replacement of a defective product during the Warranty Period. All defective replaced parts, boards or equipment shall become the property of mCareWatch™.
7.2 Upon request from mCareWatch™, the customer may be required to provide the purchase receipt or other documentation or information in respect of the date and place of purchase. In the event that the information is not presented or if it is incomplete or illegible, mCareWatch™ reserves the right to refuse the Warranty service.
7.3 This Warranty does not cover damage resulting from: (1) Normal wear and tear of the equipment (2) Defects and damages due to the equipment being used other than in a normal and customary manner (3) Any unauthorised disassembly, repair, alteration or modification being carries out (4) Misuse, abuse, negligence or accident howsoever caused (5) Defects or damage arising from improper testing, operation, maintenance, installation, or any alteration or modification. (6) Defects or damage due to spillage of foods or liquids, corrosion, rust or the use of wrong voltage. (7) Scratches or damage to plastic surfaces and all other extremely exposed parts that are due to normal customer use.
7.4 The Warranty will be null and void in any of the following events: (1) If the serial number or warranty seal on the equipment has been defaced or removed. (2) If any term contained in the Warranty has been altered or modified in any way without the prior written consent of mCareWatch™ (3) Without any proof of purchase. This Warranty applies only to the hardware components of the product as originally supplied and does not apply to any software or other equipment that are owned by mCareWatch™ or third parties or third parties for which an end-user license agreement or separate warranty/guarantee or exclusions are provided or intended to apply. mCareWatch™ is not responsible for the damage to or loss of any programs, data or removable storage media where you do not backup your data.
7.5 To replace the Device you must first send the watch in the original unit carton, including all items originally packaged with the Device (charging base, USB cable and adaptor) to: mCareWatch™, Unit 109, 46-50 Kent Rd Mascot NSW 2020.You must also include in the return package; an invoice number, your contact details (purchaser and watch receiver details), and a description of the problems and issues faced while using the Device.
7.6 Receive Service: First, call our office as Service problems may be able to be resolved over the phone. If the problem cannot be resolved we will issue you a Service Number and send you a replacement Device and instructions on how to return the non-working Device. Upon the receipt of the replacement Device you are obligated to return the original Device to us within 7 days. If you fail to do so, we may charge you our prevailing price for the replacement Device by debiting your credit card. Please ensure you return the original product by registered post as we will not be responsible for Device that is not delivered to us.
- Communications Facilities and Liability Limitations
8.1: Communications Facilities. The Devices use GPS, GSM, mobile digital network services and Wi-Fi technologies. This technology used by the Device may go off-line or not operate occasionally beyond our control and during any such outage tracking the Device or making and receiving calls cannot be transmitted and we may not know of the communications outage. We are not obligated to provide Services during any such outages.
8.2 Customer recognises that mCareWatch™ will not be held responsible or liable for the Device, mobile app, web portal dashboard “ConnectiveCARE”, SIM card or monitoring service that does not operate properly or if not fully tested on a regular basis. The Device and monitoring service can only be effectively carried out by mCareWatch™ if the Device and service equipment is regularly tested, recharged and always switched on.
8.3 Geo-fence alerts. To activate and ensure the geo-fence feature is operating effectively, the customer must provide mCareWatch™ with a minimum of one (1) Wi-Fi MAC address which will be added to the mCareWatch™ tracking platform system.
8.4 Device Alerts. Customer must have access to a smartphone (iOS or Android) and download the mCareWatch™ carer’s mobile app to be able to access any alerts via the watch personal emergency response system.
8.5 Despite anything to the contrary contained or implied in this Agreement, Customer agrees not to hold mCareWatch™ for any loss, damage, injury or death as a consequence of in any way relating to any of the communication facilities used by the Device referred to in section 8.1 going off-line or failing to operate, not due to any act or omission by mCareWatch™ or the failure of the Device due to failure of the Customer to service, recharge battery and/or to maintain the Device as specified in this Agreement or the failure of the Device to be operational for any reason other than due to a defect in the design or manufacture of the Device, for a period of 12 months from the date of purchase for the Device.
- After Warranty Repair of Device. At the end of our limited warranty, and as long as you are paying for Services, we shall continue to repair or replace the Device pursuant to the process set forth in Section B of our limited warranty and you agree to pay for such repair at our then prevailing rates and you authorise us to debit your credit card for such services. If you fail to pay for the chargeable repair service we may terminate this Agreement by giving you notice and seek to collect any unpaid charges.
- Customer’s Duties.
10.1 You will instruct all other users who may use the Device on its proper use, including any user if different to you.
10.2 You must ensure that all information provided to us is accurate and up to date.
10.3 You must: (a) use the Devices exclusively for the purpose in which they are provided to you; (b) operate and maintain the Devices with reasonable care and diligence; (c) not install any software on the Devices other than in the ordinary course of using the Devices; (d) not alter, modify or replace any parts or components of the Devices; and (e) not disassemble or reverse-engineer any parts or components of the Devices.
- Termination, Default. If you: (a) fail to make any payment when due under the terms of this Agreement; or (b) breach any other term of this Agreement and fail to remedy that breach within seven (7) days of receiving notice from mCareWatch™ of such breach, we may discontinue the Services and terminate or suspend this Agreement. If the Service is suspended because you have failed to pay the Services fees set forth herein, and you ask us to reactivate the Device you will pay to us, in advance the current re-connection fee. You understand that the Device may not work with networks used by other providers.
- Further Limitation of Liability. You understand that: (a) we are not an insurer of your health or personal safety or the health or personal safety of persons who may use the Services; (b) you are solely responsible for providing any life, health or disability insurance for yourself and persons who use the Device; (c) emergency notification may not always operate properly for various reasons; (d) it is difficult to determine in advance what portion, if any, of any personal injury or death or property loss would be proximately caused by our failure to perform, our negligence or a failure of the Device or Services.
- Third party Indemnification and no Subrogation. If anyone other than you (including any user), asks us to pay for any harm or damages (including personal injury, death or property loss) connected with or resulting from (i) our breach of this Agreement or a failure of the Device or Services, (ii) our negligence, (iii) any other improper or careless activity of ours in providing the Device or Services or (iv) a claim for indemnification or contribution, you will pay us (a) any amount which a court orders us to pay of which we reasonably agree to pay, and (b) the amount of our reasonable solicitor’s fees and any other losses or costs that we may pay in connection with the harm or damages.
13.1. The Customer will indemnify and hold harmless mCareWatch™ in respect of any damages, loss or injury occurring to any person, property or party and all actions, claims, demands, suits, charges, losses, costs, damages or expenses from the use of the Device and Services (SIM card, mobile app, web portal and monitoring service) or your breach of this Agreement.
- Applicable Law. This Agreement shall be governed by the law of the state of New South Wales, Australia.
- Copyright. Unless otherwise noted, all content provided on the mCareWatch™ website and Devices (and/or that is provided in connection with the Services), including (but not limited to) images, illustrations, designs, icons, photographs, video clips, written material and other materials, is the property of mCareWatch™ or its suppliers, partners, or affiliates, and is protected by Australian and international copyright laws. Any unauthorised use of any content or materials is strictly prohibited and may violate copyright and trade mark laws and/or the laws of privacy, publicity, and/or communications regulations and statutes. Any use of the materials or content can be made only with the prior written and express authorisation of mCareWatch™. Please note that mCareWatch™ reserves all of its rights in this regard.
- Trade Marks. All trade marks, trade dress and service marks (whether registered or unregistered) of mCareWatch™ and their respective designs and/or logos on the mCareWatch™ website and Device (and/or that are provided in connection with the Services), are the exclusive trade marks of mCareWatch™. The trade marks, trade dress and service marks of mCareWatch™ may not be copied, imitated or used, in whole or in part, without prior written permission of mCareWatch™. All other trade marks, product names and company names or logos used on the mCareWatch™ website are the property of their respective owners and have been licensed to mCareWatch™. You may not use any trade marks, trade dress, service marks or intellectual property of mCareWatch™, nor may you place any meta tags or any other “hidden text” utilising the name of mCareWatch™ or its related companies, trademarks, or product names, without our express written consent.
- Disclosure. mCareWatch™ reserves the right (at all times) and in its sole and absolute discretion, to disclose any information deemed by mCareWatch™ necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse or remove any information or materials, in whole or in part.
- Amendment. We may amend this Agreement at any time in our sole discretion by notifying you on or in connection with the Services, including by email. You hereby agree to be bound by such amendment. No other amendment shall be enforceable against us unless set forth in a writing signed by an authorised employee of mCareWatch™.
- Assignment. mCareWatch™ may assign or transfer its rights or obligations under this Agreement at its discretion. You are unable to assign any of your rights under this Agreement without the prior written permission of mCareWatch™.
- Severance. If any term of this Agreement is prohibited, invalid, unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or effecting the validity or enforceability of that provision in any other jurisdiction.
- Entire Agreement. This Agreement constitutes the entire agreement between you and mCareWatch™. The terms and conditions of this Agreement apply as presented online without alteration or qualification, unless a change is approved in writing by an authorised employee of mCareWatch™.