mCareWatch Terms and Conditions

These Terms and Conditions (Terms and Conditions) constitute a legal agreement between you (you or your) and mCare (us, we, or our) for the use of the Services and purchase of the Device(s) by you or a person(s) you are responsible for (Device Wearer) during the term of these Terms and Conditions as set out in condition 1 (Term).

If the Device Wearer is not you, you warrant and undertake that Device Wearer will (undertake and agree to procure the Device Wearer to) the comply with these Terms and Conditions, and you acknowledge you will be solely responsible for the Device Wearer’s compliance with these Terms and Conditions (as if they were a party to these Terms and Conditions). For the purposes of these Terms and Conditions, a reference to “you” is also a reference to the Device Wearer (as context requires).

We, as the providers of the Services and Device(s), together with (from time to time) our licensors, subsidiaries and associated legal entities, agree to provide the Services and Device(s) to you, and provide you with access to the Website, Software and Applications, in accordance with these Terms and Conditions. For the avoidance of doubt, we do not sell the Software, Applications or Website to you.

By either, using this Website, clicking the “Accept” button when registering for the Services and purchasing the Device(s), or using our Services and Device(s), you agree to be bound by these Terms and Conditions. From time to time, due to the nature of our Services and Device(s), we may require you to (at our discretion) comply with additional terms, but we will let you know as soon as they apply to you.

AGREED TERMS:

1. Term

 

These Terms and Conditions shall:

  • commence on the date that you agree to these Terms and Conditions (Commencement Date), and continue until the conclusion of the duration of the Service Plan (as specified by you) (Initial Period); and
  • automatically renew for consecutive terms of the duration equal to the Initial Period, immediately following the conclusion of the Initial Period,

subject to rights of early termination provided for in condition 19.

 

2. General Acknowledgements

 

  • These Terms and Conditions apply to the Device(s), Services, Software, Applications and Website, including any updates or supplements thereto, unless they come with separate terms, in which case those separate terms apply.
  • If any open-source software is included in the Device(s), Services, Software, Applications or Website, the terms of an open-source licence may override some of these Terms and Conditions (as the case may be).
  • We may change these Terms and Conditions at any time for any reason. In the event of such change, we will notify you by email and when you access the Applications, Software, Service or Website next. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Device(s), Services, Software, Applications and/or Website.
  • From time to time updates to the Services, Software, Applications and Website may be issued. Depending on the update, you may be unable to use the Device(s), Services, Software, Applications or Website until you have complied with the requirements of that update, which may include downloading software to access the latest versions and accepting any new terms. Additionally, in some circumstances, the updates may be effected automatically on your Device(s).
  • The terms of our privacy policy available at https://mcarewatch.com.au/privacy-policy/ (Privacy Policy) are incorporated into these Terms and Conditions by reference and apply to your use of the Device(s), Services, Software, Applications and Website, and you undertake that you have read, and agree to be bound, by the Privacy Policy.
  • You acknowledge that the Privacy Policy is subject to change in our sole discretion and you will be notified of any amendments to our Privacy Policy. It is your responsibility to regularly check our Privacy Policy for any updates.
  • By using the Device(s), Services, Software, Applications and/or Website, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the Device(s), Services, Software, Applications and/or Website may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
  • Your use of the Device(s), Services, Software, Applications and/or Website is governed by these Terms and Conditions, subject to the Privacy Policy.
  • By using the Device(s), Website, Applications and Software, you consent to:
    • us collecting and using technical information about the hardware and peripherals that you use to access the Website, Software and Applications that are internet-based or wireless to improve our products and to provide any services to you; and
    • monitoring your conduct while using the Device(s), Website, Software and Applications and collecting information associated with your conduct.
  • The Website, Software and Applications may contain links to other independent third-party websites (Third-party Sites). The Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
  • Unless otherwise noted, all content provided on our Website, Software, Applications, Services and Device(s), including, but not limited to, images, illustrations, designs, icons, photographs, video clips, written material and other materials, is our property or the property of our suppliers, partners, or affiliates, and is protected by Australian and international copyright laws. Any unauthorised use of any such 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 us.
  • All trade marks, trade dress and service marks (whether registered or unregistered) of us and our respective designs and/or logos on the Website, Software, Applications, Services and Device(s), are the exclusive trade marks us (or our licensors, suppliers, partners or affiliates). Our trade marks, trade dress and service may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trade marks, product names and company names or logos used on the Website, Software, Applications, Services and Device(s) are the property of their respective owners and have been licensed to You may not use our trade marks, trade dress, service marks or intellectual property, nor may you place any meta tags or any other “hidden text” utilising our name or our related companies, trademarks, or product names, without our express written consent.
  • In these Terms and Conditions:
    • Applications means the Portal and Carer’s App;
    • Basic Plan means the basic service plan provided by us to you through the Watch, which includes, an activated SIM card, 30 minutes of voice calls per month, 25MB of data per month, 3 licences to the Portal, 3 licences to the Carer’s App, and location tracking, SOS emergency calls, medication reminders, SOS calls answered by friends or family, and other benefits are directed by us from time to time;
    • Carer’s App means the mobile application accessed by the carers or parties responsible for the Device Wearer, for the purposes of tracking and monitoring the Device Wearer while using the Device(s);
    • Device(s) means the personal emergency notification and medical alert devices (developed by us) which enables a two-way communication between the Device Wearer and a nominated caregiver or monitoring service, known as “mCareWatch” (Watch) and “mCareMate 4G Alarm” (Pendant);
    • Monitored Pendant Plan means a Pendant Plan that, in the circumstance of an Emergency Event, provides the Device Wearer with the ability to enter into communication with our external 24/7 monitoring service;
    • Pendant Plan means the service plan provided by us to you through the Pendant, which includes, an activated SIM card, SOS calls, data and incoming calls, GPS and WiFi location tracking, SOS emergency calls, a fall detector, 6 licences to the Portal and 6 licences to the Carer’s App;
    • Premium Plan means the standard service plan provided by us to you through the Watch, which includes, an activated SIM card, unlimited voice calls per month, 1GB of data per month, 6 licences to the Portal, 6 licences to the Carer’s App, and location tracking, SOS emergency calls, medication reminders, SOS calls monitored by 24/7 monitoring centre, non-movement detection geo-fence, speed dial contacts, health and wellness alerts, pedometer and other benefits specified by us from time to time;
    • Portal means our online management portal, known as “ConnectiveCARE” that is used to track and monitor the Device Wearer’s use of the Device(s);
    • Self-Monitored Pendant Plan means a Pendant Plan that, in the circumstance of an Emergency Event, provides the Device Wearer with the ability to enter into communication with their nominated contacts;
    • Services means the services that are provided by us to you under these Terms and Conditions, including the provision of access to a Service Plan;
    • Software means our software developed and customised for, and installed in, the Device(s);
    • Standard Plan means the standard service plan provided by us to you through the Watch, which includes, an activated SIM Card, unlimited voice calls per month, 1GB of data per month, 6 licences to the Portal, 6 licences to the Carer’s App, and location tracking, SOS emergency calls, medication reminders, SOS calls to family or friends, non-movement detection geo-fence, speed dial contacts, health and wellness alerts, pedometer and other benefits specified by us from time to time; and
    • Website means our website located at https://mcarewatch.com.au .

3. Device and subscription

 

  • When you purchase the Device(s) and Services, you undertake and agree to:
    • pay to us the Device Purchase Price, Set-Up Fee, and Shipping Fees, to our nominated bank account, in order to purchase the Device(s) you have selected on the Website;
    • pay to us the Service Plan Price and Sign-Up Fee (associated with your chosen Service Plan), to our nominated bank account, in order to subscribe for your chosen Service Plan, on either a monthly or annual basis, as specified by you on the Website (as the case may be); and
    • take out life, medical or disability insurance for the protection of you and the Device Wearer, at a level that is satisfactory to us (before using the Device(s), Software, Applications and Services) (Insurance).
  • We undertake and agree to:
    • within 14 days of our receipt of the:
      • Device Purchase Price, Set-Up Fee, Shipping Fees and Sign-Up Fee (due at that time); and
      • Personal Information, evidence of the Insurance, and any other information that we require from you,

set-up the Device(s) and dispatch the Device(s) to you; and

  • provide you with access to your selected Service Plan (together with all inclusions).
  • In these Terms and Conditions:
    • Device Purchase Price means the price of the Device(s) that are being purchased by you from us, being:
      • for the Watch, $400; and
      • for the Pendant, $497 (includes setup and first 12 months service).
    • Device Set-Up Fees means the fees to be paid by you to us in order to set up your Device(s) to be ready for use, being $99 per Device
    • Personal Information means the information relating to you or the Device Wearer that you provide to us through the Device(s), Website, Software and Applications, including (but not limited to) name, mailing or street address, email address, telephone number, date of birth, gender, credit card or bank account information, any information regarding your medical conditions, predispositions or allergies, or any other information or content provided by you to us;
    • Service Plan means a Pendant Plan, Basic Plan, Standard Plan or Premium Plan;
  • Service Plan Price means the price paid for each Service Plan, being for a:
    • Self-Monitored Pendant Plan, $249 per year;
    • Monitored Pendant Plan, $548 per year;
    • Basic Plan, $29 per month or $240 per year;
    • Standard Plan, $49 per month or $468 per year; and
    • Premium Plan, $69 per month or $708 per year.
  • Sign-Up Fee means the fee paid by you to us for the purposes of setting up the Service Plan for the Device Wearer, being:
    • for the Watch, $499 per Device;
    • for the Self-Monitored Pendant, $517 per Device; and
    • for the Monitored Pendant, $816 per Device.
  • Shipping Fees means all shipping fees specified on the Website from time to time.

4. Software and the Applications

 

4.1           Software and Website Licence

  • Subject to condition 3, during the Term, we grant to you a personal, royalty-free, non-sublicensable, non-transferable, non-exclusive, revocable, limited, Australia-wide licence to use the Software and Website, during the Term, in order to use the Device(s) for the Purpose (Your Software Licence).
  • In these Terms and Conditions, Purpose means the purpose that the Device(s) are intended to be used for, being for personal emergency notification and medical alert purposes.

4.2           Application Licence

  • Subject to condition 3, during the Term, we grant to you such number of personal, royalty-free, non-sublicensable, non-transferable, non-exclusive, revocable, limited, Australia-wide licences to use the Applications, as set out in condition 4.2(b), for the Purpose (Your Application Licences).
  • You acknowledge and understand that, if you have subscribed for the:
    • Basic Plan, you will be granted 3 licences to allow your nominated parties to access the Applications; or
    • Pendant Plan, Standard Plan and Premium Plan, you will be granted 6 licences to allow your nominated parties to access the Applications.
  • You undertake and agree to procure each user of the licences set out in conditions 2(a) to 4.2(b) above to comply with, and agree to, these Terms and Conditions (as they relate to those users), and you acknowledge and agree that you will be responsible for those user’s use of the Applications.

4.3           Licence Restrictions

  • You undertake and agree, during the Term, to not:
    • resell or use the Website, Software or Applications (or their content) for any other purpose other than as is provided for in these Terms and Conditions;
    • make derivative uses of the Website, Software or the Applications (or their content);
    • copy, imitate, mirror, reproduce, distribute, publish, download, post, display or transmit the download of, the Website, Software or Applications except where incidental to normal use of the Software or Applications;
    • rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Website, Software or Applications;
    • make alterations to, or modifications of, the whole or any part of the Website, Software or Applications, or permit the Website, Software or Applications (or any part of them) to be combined with, or become incorporated in, any other programs or software;
    • allow the Website, Software or Applications to be exposed to any virus, worms or any other form of destructive malware;
    • disassemble, decompile, reverse-engineer or otherwise reduce the Website, Software or Applications to any human-readable form, or create derivative works based on the whole or any part of the Website, Software or Applications;
    • provide or otherwise make available the Website, Software or Applications in whole or in part (including object and source code) to any other party without our prior written consent;
    • use the Website, Software or Applications (or allow the Software or Applications to be used) in an unlawful, disingenuous, deceptive, manipulative, inappropriate, fraudulent or malicious manner, or in any manner inconsistent with these Terms and Conditions (as determined by us);
    • infringe Our Intellectual Property Rights or those of any third-party in relation to the Website, Software or Applications;
    • use, or allow to be used, the Website, Software or Applications in a manner likely to, disrupt the Website, Software or Applications, or bring us (or any matter relating our business) into disrepute (as determined by us);
    • use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the contents of the Website, Software or Applications, or collect any information from the Website, Software or Applications (except in such a manner that is incidental to normal use of the Website, Software or the Applications); and
    • challenge the validity or assist another to challenge the validity of Our Intellectual Property Rights;
    • use the Website, Applications or Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms and Conditions, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Website, Software or Applications;
    • transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Website, Software or Applications (as determined by us);
    • use the Website, Applications or Software in a way that could damage, disable, overburden, impair or compromise the Website, Applications or Software;
    • collect or harvest any information or data from the Website, Applications or Software, or attempt to decipher any transmissions to (or from) the servers;
    • provide or otherwise make available the Website, Software and Applications in whole or in part (including object and source code) in any form to any person without prior written consent from us; and
    • contravene any technology control or export laws and regulations that apply to the technology used or supported by the Device(s), Website, Applications or Software.
  • In these Terms and Conditions:
    • Our Intellectual Property Rights means all present and future industrial and intellectual property rights relating to intellectual property that is our property and relates to the Services, Device(s), Website, Software, Applications or us, including, without limitation:
      • inventions, patents, copyright, trade business, company or domain names, rights in relation to circuit layouts, plant breeders’ rights, registered designs, registered and unregistered trade marks, know how, trade secrets and the right to have Confidential Information kept confidential, and any and all other rights to intellectual property which may subsist anywhere in the world; and
      • any application for or right to apply for registration of any of those rights.
    • Your Intellectual Property Rights means all present and future industrial and intellectual property rights relating to intellectual property that is your property and you provide to us through the Software, Applications, Website, and/or Device(s), such as the Personal Information and Service Content, including without limitation:
      • inventions, patents, copyright, trade business, company or domain names, rights in relation to circuit layouts, plant breeders’ rights, registered designs, registered and unregistered trade marks, know how, trade secrets and the right to have confidential information kept confidential, and any and all other rights to intellectual property which may subsist anywhere in the world; and
      • any application for or right to apply for registration of any of those rights.

4.4           Third-Party Agreements

  • You:
    • acknowledge and understand that, before operating the Device(s) and using the Services, you may be required to enter into the Third-Party Agreements; and
    • undertake and agree to enter into the Third-Party Agreements before operating the Device(s).
  • To the extent of any inconsistency between the terms of the Third-Party Agreements and these Terms and Conditions, the terms of the Third-Party Agreement shall prevail in all respects.
  • In these Terms and Conditions, Third-Party Agreements means any agreements that you may be required to enter into in order for us to provide the Services to you, including those of any third-party iOS or telecommunication provider.

5. Device(s)

 

5.1           Title

Title to (and all risk associated with) the Device(s) shall remain with us until you have paid to us the Device Purchase Price, after which, title in the relevant Device(s) passes to you.

5.2           Device Restrictions

  • During the Term, you undertake and agree to:
    • use the Device(s) exclusively for the Purpose;
    • store the Device(s) in a safe and secure location, in accordance with our directions;
    • operate the Device(s) with reasonable care and diligence, and in accordance with any and all of our directions;
    • maintain the Device(s) in good working condition and not misuse the Device(s) in any manner;
    • protect the Device(s) from exposure to any virus, worms or other destructive malware, and any unusual conditions, including but not limited to, fluctuations in power or interference of any kind (whether radio or electrical);
    • not remove, alter, deface, obscure or otherwise render illegible any markings on the Device(s);
    • not use the Device(s) (or allow the Device(s) to be used):
      • in a deceptive, manipulative, unlawful, fraudulent, disingenuous, or inappropriate manner, or any other manner inconsistent with these Terms; or
      • in manner that may disrupt the functionality of the Device(s), or may bring us (or our business) into disrepute.
    • not allow any person to use or operate the Device(s), other than the Device Wearer;
    • not install (or allow, or procure the installation of) any software on the Device(s) (without our consent), other than in the ordinary course of using the Device(s) for the Purpose;
    • not alter, modify or replace any parts or components of the Device(s) (without our consent);
    • not disassemble or reverse-engineer any parts or components of the Device(s) under any circumstances;
    • use the Device(s) in accordance with the Product User Manual; and
    • not use any accessories or components in relation to the Device(s) other than those that are provided (or approved) by us.
  • In these Terms and Conditions, Product User Manual means user manual relating to the Device(s) that is issued by us.

6. Device Monitoring

 

  • You acknowledge and agree that we may undertake monitoring activities from time to time, as set out in this condition 6.
  • You consent to us (during the Term):
    • monitoring, collecting, using and aggregating technical information and data regarding, the operational efficiency and performance of the Device(s) (Performance Data); and
    • monitoring and collecting location data of the Device Wearer (together with any other relevant data) on an ongoing and continuous basis (Device Wearer Data), and disclosing that Device Wearer Data to the carers of, or parties responsible for, the Device Wearer from time to time, including, but not limited to, through the Software and Applications.
  • If the Device Wearer is:
    • not you, you warrant and undertake that the Device Wearer authorises us to collect, disclose and use the Performance Data and Device Wearer Data in accordance with these Terms and Conditions; or
    • you authorise us to collect, disclose and use the Performance Data and Device Wearer Data in accordance with these Terms and Conditions.
  • The Device Wearer grants to us a:
    • exclusive, sublicensable, transferable, irrevocable, perpetual, world-wide, royalty-free licence to use the Performance Data for the purposes of improving the Services, Device(s), Website, Software and Applications (Performance Data Licence); and
    • non-exclusive, sublicensable, non-transferable, irrevocable, world-wide, royalty-free licence to use the Device Wearer Data, for the purposes of us providing the Services, Website, Software and Applications for the purpose of monitoring, collecting and disclosing the Device Wearer Data in accordance with these Terms and Conditions (Device Wearer Data Licence).

7. Intellectual Property Rights

 

7.1           Ownership

You acknowledge that:

  • all rights, title and interest in Our Intellectual Property Rights, anywhere in the world, belong to us or our licensors;
  • all rights in relation to the Website, Software and Applications, are licensed (not sold) to you;
  • you have no proprietary rights, title or interest in Our Intellectual Property Rights, other than the right to use those rights in accordance with these Terms and Conditions; and
  • nothing contained in these Terms and Conditions shall be construed as an assignment or transfer of Our Intellectual Property Rights to you.

7.2           General Licence

You grant to us a non-exclusive, sublicensable, non-transferable, revokable, world-wide, royalty-free licence to use Your Intellectual Property Rights, for the purposes of us providing the Device(s), Services, Website, Software and Applications to you (Our IP Licence), provided that, to the extent of any inconsistency between Our IP Licence and the Performance Data Licence, Device Wearer Data Licence or Service Content Licence, the terms of the Performance Data Licence, Device Wearer Data Licence or Service Content Licence (as the case may be) shall prevail.

7.3           Warranty

You warrant and undertake that you are the sole and exclusive owner of Your Intellectual Property Rights, and you have the authority to grant to us the licences to use Your Intellectual Property contained in these Terms and Conditions (including the right to use those the rights provided to us under the Performance Data Licence, Device Wearer Data Licence or Service Content Licence).

8. Confidential information

 

8.1 Obligation

  • Each party must keep the Confidential Information confidential.
  • Subject to conditions 2 and 8.4, no party may use or disclose the Confidential Information of any other party for any purpose other than that which the information was disclosed.
  • In these Terms and Conditions, Confidential Information means:
    • information you provide us to enable us to provide the Services, Applications, Software and Website to you, including but not limited to the Personal Information you provide on the Website, Software and/or Applications;
    • know-how, trade secrets, ideas, concepts, technical and operational information confidential to or used by us;
    • information concerning the affairs or property of us or any business, property or transaction in which us may be or may have been concerned or interested;
    • information about the terms or effect of these Terms and Conditions, and any information relating to the Your Intellectual Property Rights or Our Intellectual Property Rights; and
    • information which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to us.

8.2           Exclusions

The obligations of confidence under these Terms and Conditions do not apply to any information that:

  • is in the public domain (other than through any breach of these Terms and Conditions);
  • the receiving party can prove was known to it at the time of disclosure by the disclosing party, free from any obligation of confidence; or
  • a party is required by law to disclose.

8.3           Survival of Obligations

The obligations of confidentiality under these Terms and Conditions survive the expiration or termination of these Terms and Conditions.

8.4           Permitted Disclosure

Each party may only disclose another party’s Confidential Information to those of its employees, contractors or professional advisers who need to know the information and who are aware of the confidential nature of the information, provided that the disclosing party shall be responsible for the conduct of their employees, contractors or professional advisers in compliance with these Terms and Conditions.

8.5           Ownership

Unless otherwise provided in these Terms and Conditions, no party will acquire any title to any Confidential Information or other property of any other party.

9. Account

 

  • To access the Services, Website, Software or Applications, you may be required to apply for and register an account on the Software, Applications and/or Website by providing to us your Personal Information as requested by us (Account). In other circumstances, an Account may be allocated to you by your representative, such as your employer or educational institution.
  • After you have applied to register for an Account, you will be granted access to the Services, Software and Applications and will be registered for an Account, upon your receipt of email confirmation from us that your Account has been registered.
  • You acknowledge and understand that:
    • upon providing to us your Personal Information, you grant to us the licence to use your personal information in accordance with Our IP Licence;
    • you are solely responsible for maintaining the confidentiality of your Account and associated password(s) and for restricting access to your Device(s), and you accept responsibility for all activities that occur under your Account or password(s);
    • you must immediately notify us in the event of any unauthorised use of the Services, Software, Applications, Account or Device(s); and
    • where an Account has been allocated to you by a representative, additional terms and conditions may apply to your use of the Account, which are separate from these Terms and Conditions.
  • We reserve the right to, refuse access to your Account, the Software, Applications, Website, Services, or terminate Accounts at our sole discretion.
  • You warrant and undertake that, your Personal Information is current, accurate, complete and not fraudulent.

 

10. Emergency events

 

10.1        Communications

The Device Wearer has the ability to enter into two-way communication with (in the event of an emergency, after pressing an emergency button on the Device (Emergency Event)), where the Device Wearer has subscribed for a:

  • Self-Monitored Pendant Plan, Basic Plan or Standard Plan, their nominated individuals; or
  • Monitored Pendant Plan or Premium Plan, our 24/7 monitoring service,

which is facilitated through a mobile personal emergency response system (MPERS).

10.2        Non-Monitoring Services

  • If the Device Wearer has subscribed for a Self-Monitoring Pendant Plan, Basic Plan or Standard Plan, the terms of this condition 2 apply to the Device Wearer (and for the avoidance of doubt, condition 10.3 shall not apply to the Device Wearer).
  • You undertake and agree to provide us with a comprehensive list of emergency contacts for the Device Wearer as soon as practicable after the date of these Terms and Conditions (Call List).
  • In the case of an Emergency Event, the Device will automatically:
    • send notifications (through the Carer’s App and Portal) to the individuals nominated by you, to alert them of the Emergency Event; and
    • call the nominated individuals on the Call List (in the order specified in that list) to enable the Device Wearer to enter into two-way communication with those individuals (where the call is successfully connected).
  • You acknowledge and agree that you are solely responsible for updating the Call List from time to time (by notifying us on the contact details contained in these Terms and Conditions).

10.3        Monitoring Services

  • If the Device Wearer has subscribed for a Monitored Pendant Plan or a Premium Plan, the terms in this condition 3 apply to the Device Wearer.
  • You undertake and agree to provide us with:
    • the Call List and a list of any relevant medical conditions, predispositions, or allergies (Medical Details); and
    • an escalation procedure, for us to implement to the extent that all emergency contacts (on the Call List) are unable to be contacted (in the circumstance of an Emergency Event) (Escalation Procedure).
  • The Device Wearer will be monitored on a 24/7 basis by us, for the purposes of responding to any Emergency Events.
  • You acknowledge and agree that you are solely responsible for updating the Call List, Medical Details and Escalation Procedure from time to time (by notifying us on the contact details contained in these Terms and Conditions).
  • Subject to your instructions, in the case of an Emergency Event, as soon as reasonably practicable:
    • the Device will send notifications (through the Carer’s App and Portal) to the individuals nominated by you, to alert them of the Emergency Event; and
    • our nominated emergency monitoring bureau will:
      • call the nominated individuals on the Call List (in the order specified in that list) to notify those persons of the Emergency Event; and
      • contact the appropriate emergency services (as determined by them) in accordance with the Escalation Procedure, and the relevant authority’s operating procedures and the laws or regulations governing those authorities.
    • You consent to the emergency services (in the circumstance of an Emergency Event) using any and all force necessary to access the Device Wearer at their location or premises, at the Device Wearer’s sole cost, and agree to bear all costs associated with the emergency services responding to the Emergency Event.

11. Geo-fence services

 

  • If you have subscribed for a Standard Plan, Premium Plan or a Pendant Plan, the Device Wearer will have access to Geo-Fence Alerts.
  • You acknowledge and understand that, to activate and ensure the Geo-Fence Alerts feature is operating effectively, you must provide us with a minimum of 1 Wi-Fi MAC address which will be added to our tracking platform system (together with any other resources that may be required by us from time to time).
  • In these Terms and Conditions, Geo-Fence Alerts means notifications that are sent by the Device to the Device Wearer’s nominated contacts (through the Carer’s App, Portal, SMS and any other nominated medium from time to time), in the event that the Device Wearer breaches a virtual boundary (that is set by you from time to time).

12. Device warranty

 

12.1        Warranty

You acknowledge and understand that you are entitled to a warranty over the Device(s) that are purchased by you from us, in accordance with this condition 12, provided that you comply with the terms of condition 12 (Device Warranty).

12.2        Grant of Warranty

  • We grant to you a warranty over the:
    • Device(s) for the period commencing on the date that title to the Device(s) passes to you, and concluding 12 months thereafter (Device Warranty Period) in accordance with this condition; and
    • battery and charger components of the Device(s), for the period commencing on the date that title to the Device(s) passes to you and concluding 6 months thereafter (Component Warranty Period) in accordance with this condition.
  • Subject to conditions 4 and 12.5, during the Device Warranty Period and Component Warranty Period, we or our authorised service network, will repair or replace (at our sole discretion), the Device(s) or any relevant components thereof in the event that we determine the Device(s) or any relevant component to be defective, without any charge to you.
  • You acknowledge that:
    • the Device Warranty is only applicable to you if you purchase the Device(s) from us through the Website;
    • we may repair or replace the Device(s) or any relevant components with reconditioned Device(s) or components that we consider to be fully functional; and
    • all defective replaced parts, boards or equipment shall become our property.

12.3        Procedure

  • If your Device(s) are not functioning as expected (Malfunction), in the first instance please contact us using our contact details contained in these Terms and Conditions.
  • If we are unable to resolve the issue over the phone, we will provide you with:
    • a service number that is unique to you; and
    • instructions on how to return your Device(s) to us for inspection to determine the cause of the malfunction (Inspection).
  • You must return the Device (s) to us:
    • to the address specified by us;
    • in the original unit carton, including all items originally packaged with the Device(s) such as the recharge cradle base, USB cable and adaptor; and
    • together with your contact details, and a description of the problems and issues faced while using the Device(s).
  • While you will be responsible to bear all costs associated with the return of the Device(s) to us (Delivery Fee), we will, within 7-14 days of you returning the Device(s) to us, credit the Delivery Fee to your nominated payment method (credit-card or bank account) that we have on our records.
  • We will use reasonable endeavours to carry out the Inspection within 14 days of receiving your Device(s).
  • If we determine that the Malfunction is:
    • covered by the Device Warranty, we will provide you with replacement Device(s) that are substantially the same as the Device(s) (Replacement Device), to be used by you (in accordance with these Terms and Conditions) while we repair or replace the Device(s) subject of the Malfunction; or
    • not covered by the Device Warranty, we will provide you with a quote for the repairs or replacement of the Device(s), and we may (at our discretion) provide you with a Replacement Device (subject to availability).
  • You acknowledge that:
    • we may require you to provide us with proof of purchase of the Device(s) before we carry out the Inspection or honour the Device Warranty; and
    • if you fail to provide such proof to our satisfaction, we reserve the right to refuse to provide the Device Warranty to you.

12.4        Exclusions

  • You acknowledge and understand that the Device Warranty does not apply in relation to any damage caused by:
    • your failure to comply with the Device Restrictions set out in condition 2;
    • normal wear and tear of the Device(s)
    • any damage caused by water, vandalism, attempted unauthorised repairs, faulty electrical or other causes;
    • defects and damage due to the Device(s) being used other than in a normal and customary manner;
    • any unauthorised disassembly, repair, alteration or modification being carried-out;
    • misuse, abuse, negligence or accident howsoever caused;
    • effects or damage arising from improper testing, operation, maintenance, installation, or any alteration or modification;
    • defects or damage due to spillage of foods or liquids, corrosion, rust, the use of wrong voltage or power interference; and
    • scratches or damage to plastic surfaces and all other exposed parts that are due to normal customer use.
  • You acknowledge that we have the sole discretion to determine whether any of the circumstances contained in this condition 4(a) are applicable to you.

12.5        Voiding of Device Warranty

The Device Warranty will be void if:

  • you breach any of the Device Restrictions set out in condition 2;
  • the serial number or warranty seal on the Device(s) have been defaced or removed; or
  • you do not have proof of purchase.

12.6        Post-Warranty Period

If the Device(s) and/or its components Malfunction at any time after the Device Warranty Period or Component Warranty Period, we will repair and replace the Device(s) and/or its components at your sole expense, and at rates determined by us.

 

13. Content submitted to us

 

13.1        Content Facilities

The Website, Applications and Software may provide facilities for you to submit content to us from time to time, such as through online forms, newsfeeds, bulletin boards, online chat facilities, comment areas, billboards, forums, groups, postings sections and other similar communications facilities (Content Facilities).

13.2        Acknowledgements

You acknowledge and understand that:

  • any words, images, videos, sounds, music, posts, notes, messages, ideas, suggestions, or other material of any kind (Service Content) which you submit to us must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory, offensive or unlawful material;
  • we have no obligation to monitor the Content Facilities;
  • we reserve the right at all times and in our sole and absolute discretion, to disclose any information we deem necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part;
  • communications to or with the Content Facilities are not private communications, therefore others may read your communications without your knowledge. You should always use caution when providing any personal information about yourself or others;
  • we do not control or endorse the Service Content, and specifically disclaim any liability with regard to same and any actions resulting from your engagement with the Content Facilities;
  • the moderators, forum managers or hosts of the Content Facilities, are not our authorised spokespersons, and their views do not necessarily reflect our views; and
  • any communication or material you transmit to us by electronic mail, the Content Facilities or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and non-proprietary, except where otherwise stated in the Privacy Policy.

13.3        Warranties and Representations

You warrant and represent that:

  • you hold all right, title and interest in the Service Content that you submit to us; and
  • your submission of the Service Content to us does not (and will not) violate or infringe the rights of any third-parties.

13.4        Service Content Licence

You grant to us a non-exclusive, sublicensable, non-transferable, irrevocable, perpetual, world-wide, royalty-free licence to, in relation to the Service Content, 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, for the purpose providing or improving the Website, Applications, Software or Device(s) (Service Content Licence).

14. Billing, payments, refunds and deactivation

 

14.1        Payment Terms

You undertake and agree to pay the fees relevant to the Device(s) and Services, including the Service Plan Price, Device Purchase Price, Shipping Fees, Device Set-Up Fees and Sign-Up Fees, at the time and in the manner set out in these Terms and Conditions (Due Date).

14.2        Billing

  • Acceptable payment methods include all major credit cards and/or electronic bank transfer through the accepted payment portals specified on the Website (Payment Portals).
  • By providing us with your credit card or bank account details through the Payment Portals (Payment Credentials), you acknowledge and accept that you will be charged (and hereby authorise us to charge) certain fees in accordance with these Terms and Conditions.
  • If you believe that you were incorrectly charged, please contact us immediately. Please note that we will only store and hold your Payment Credentials in accordance with the Privacy Policy.
  • If we cannot charge you, you will receive a notification from us, and you will need to contact us to resolve the issue. We will not attempt to charge you again until the issue has been resolved.
  • We will notify you immediately by email as soon as any payment has been successfully processed and received by us.

14.3        Late Fees

If you fail to pay any fees that are due to us by the Due Date, you undertake and agree to pay to us, in relation to amounts overdue by:

  • 1-14 days (inclusive), an additional amount of $15;
  • 15-29 days (inclusive), an additional amount of $30; and
  • 30 days or more, an additional amount of $50.

14.4        Deactivation and Fees

  • If any amounts are overdue by 30 days or more, we will automatically deactivate the Device(s) without notice to you.
  • In the event of the Device(s) being deactivated, the cost of reactivating the same Device(s) will incur fees of $60 per Device, together with the Device Set-Up Fees, which will need to be paid before the Device(s) are reactivated.

14.5        Refunds

You acknowledge and understand that:

  • any purchases of the Device(s) and Service Plans are final, and refunds will not be provided to you where you change your mind;
  • you are not entitled a refund for the value of the Service Plans that are unused by you; and
  • you may be entitled to have the Device(s) repaired or replaced, in accordance with condition 12.

15. 30 day “money back” guarantee

 

  • Notwithstanding anything contained in these Terms and Conditions, you may return the Device to us (for any reason) and receive a refund for the Device Purchase Price and the portion of the Service Plan Price (set out in condition 15(d)), in accordance with this condition 15 (Refund).
  • To be entitled to the Refund, you must:
    • notify us within 30 days of receiving the Device from us (Refund Period) that you intend to return the Device to us (Refund Notification);
    • return the Device to us (at your own cost) within 15 days of the Refund Notification (Return Period); and
    • return the Device and the original unit carton (including all items originally packaged with the Device, such as the manual, recharge cradle base, USB cable and adaptor) (Components) to us in the same condition that they were provided by us to you (Original Condition).
  • We will process the Refund to your nominated bank account (via EFT) within 30 days of our receipt of the Device and Components from you in accordance with condition 15(b).
  • If you have paid for the Service Plan Price upfront, on an annual basis, we will also refund to you (as part of the Refund) the pro-rata portion of the Service Plan Price which relates to the 11 months of the year that Device will not be used by you or the Device Wearer (Unused Service Plan Price). For the avoidance of doubt, you will not be entitled to a refund for (and we will retain) the portion of the Service Plan Price that relates to the initial 30-day period whereby the Device was used by you or the Watch Wearer (Used Service Plan Price).
  • If you do not:
    • notify us of your intent to return the Device to us within the Refund Period; or
    • return the Device and Components to us:
      • within the Return Period; or
      • in Original Condition,

you will not be entitled to the Refund, and this condition 15 shall not apply to you.

  • Title to the Device and Components, that you wish to return to us, passes from you to us, upon our receipt of the Device and Components within the Return Period. If we receive the Device and Components after the Return Period (or in a condition that is not Original Condition), title in the Device and Components will not pass from you to us, and we will return the Device and Components to you.
  • You acknowledge and understand that, under no circumstances will you be entitled to a refund of any amount paid to us under these Terms and Conditions, other than the Device Purchase Price, setup fee, delivery fee and the Unused Service Plan Price (or any other amounts paid by you to us).

16. Shipping and other sale terms

 

  • You undertake and agree to pay all costs, fees and expenses specified by us on the Website to deliver the Device(s), or any other products provided by us to you.
  • We will not be liable or otherwise responsible for any failure of delivery, shortage, defect or damage or related direct, indirect, special or consequential losses, damages, liabilities, costs or expenses sustained by you or any other party of any delivery issues, losses or defects within 48 hours of delivery of the Devices (or any other products) to your nominated location (given all deliveries are completed through Australia Post).
  • In the event however that your delivery is lost or fails to be delivered, we will use reasonable endeavours to recover that product and (at our discretion) agree to provide you with a replacement. The postage fee for the delivery of any such replacement product must still be paid by you prior to the replacement product being delivered to you.
  • We reserve the right to accept or reject your request for the products for any reason, including, without limitation, an error in the product description or the price posted on the Website for the products, the availability of the products or an error in any order for the products. Your contract with us for any purchase of the products will only come into existence when we forward you an email containing confirmation of receipt of your order, an acceptance of your order, confirmation of receipt of your payment and details of delivery and/or an invoice.

17. Limitation of Liability

 

You acknowledge and understand that:

  • the Device(s) may fail to function properly from time, and the Device Wearer’s use of the Software, Applications, Device(s), Website and Services is at your sole and exclusive risk;
  • the Software, Applications, Device(s), Website and Services have not been developed to meet the Device Wearer’s individual requirements, and that it is therefore your responsibility to ensure that the processes and functions thereto meet the Device Wearer’s requirements;
  • we assume no duty of care to you or the Device Wearer or any other party who relies on anything provided for by us through the Software, Applications, Device(s), Website or Services;
  • we rely on all warranties and undertakings provided by you under these Terms and Conditions;
  • we do not represent or warrant that the Device(s), Applications, Software, Website or Services will prevent death, bodily or personal injury, or any other injury or damage to you or others who use that the Device(s), Applications, Software, Website or Services;
  • we are not responsible for the response time or capability of any person who may be notified as a result of the Device Wearer’s use of the Device(s), and you further acknowledge that emergency notifications (such as PRMS) may not always operate properly for various reasons which are beyond our reasonable control (which we have no liability to you for);
  • signals which are transmitted on the Device(s) are provided through networks which we do not maintain (and which are beyond our control), and therefore, we are not responsible for any equipment or communication failure that prevents, impedes or adversely affects communications in relation to the Device(s), including, but not limited to, communications necessary for the provision of the services in the circumstance of Emergency Events, as set out in condition 10;
  • the Device(s) rely on GPS, GSM, mobile digital network, and Wi-Fi technologies, which may result in the Device(s) going off-line in a manner beyond our control (from time to time) which we may be unaware of, and we are not responsible for any loss, damage or costs resulting from those outages (nor are we required to provide any Services during such outages);
  • we are not responsible for any costs, damage or loss caused by any emergency authorities responding to an Emergency Event;
  • we are not responsible for your failure to return the Device(s) to us for the purposes of repairing or replacing the Device(s) (under the Device Warranty), that is caused by you or the shipping agency delivering the Device(s) to us;
  • we are not responsible for any costs, damage or loss resulting from your failure to provide us with the latest and most up-to-date Call List, Medical Details and Escalation Procedure;
  • we are not responsible or liable for the malfunction of, or interruption to, the Device(s) Software, Applications, Services or Website that are beyond our reasonable control, such as where such malfunction or interruption that is caused by the Device Wearer, including, but not limited to, where the Device(s) are not regularly tested, recharged and switched-on;
  • while we may collect the Personal Information, and Service Content from time to time, and without limiting our right to make reasonable enquiries to ascertain the legitimacy and efficacy of the Personal Information and Service Content, at no stage are we responsible for (nor do we make any representations or warranties with respect to) the Personal Information and Service Content. Similarly, we are not obliged to confirm or check the accuracy, legitimacy or efficacy of the Personal Information or Service Content;
  • your selection of the Service Plan and Device(s) is done at your own risk, and we are not responsible for any errors in relation to your selections thereto;
  • the Device(s) are your sole responsibility, and we do not accept any liability for any damage, theft or loss in relation to the Device(s), other than such damage covered by the Device Warranty set out in condition 12;
  • despite anything to the contrary contained or implied in these Terms and Conditions, you do not to hold us liable 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(s) going off-line or failing to operate, that is:
    • not caused by any act or omission by us; or
    • caused or contributed to by you, such as by failing to maintain the Device(s) in accordance with these Terms and Conditions and the Product user Manual,

unless such outage is caused by a defect in the design or manufacture, in which case condition 12 may apply;

  • we do not insure, we are not responsible to insure (and it is your sole responsibility to insure) you and the Device Wearer, in connection with your or the Device Wearer’s use of the Device(s), Services, Applications, Software and Website;
  • 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(s), Services, Applications, Software and Website;
  • we disclaim all representations, warranties and liabilities, express or implied in connection with the provision of the Device(s), Software, Services, Applications and Website, other than in accordance with these Terms and Conditions; and
  • to the extent permitted by law, our maximum liability to you and the Device Wearer for all claims under or in connection with these Terms and Conditions, whether for a breach of these Terms and Conditions, for negligence or for any other statutory or common law cause of action, is limited to an amount equal to the total fees paid by you to us under these Terms and Conditions.

18. Age restrictions

 

  • The Website, Device(s), Services, Software and Applications are designed and intended for individuals aged 12 years and above.
  • In the event you are below 12 years of age, unless we otherwise consent:
    • you must immediately cease using this Website, Device(s), Services, Software and Applications; and
    • we will immediately terminate your Account and these Terms and Conditions.

19. Termination and Cancellation

 

19.1        Cancellation

  • You may cancel your Service Plan at any time for any reason by contacting us on the details set out in these Terms and Conditions (Plan Cancellation).
  • In the event of the Plan Cancellation, we will deactivate your service at the conclusion of the current billing period.

19.2        Termination

  • We may terminate these Terms and Conditions immediately by written notice to you, at any time, for any reason.
  • In the event of a Refund, we will no longer be required to provide the Device(s), Applications, Software, or Services to you, and these Terms and Conditions will automatically terminate upon our processing of the Refund in accordance with condition 15(c).
  • In the event of a Plan Cancellation, we will no longer be required to provide the Applications, Software, or Services to you, and these Terms and Conditions will automatically terminate upon the later of:
    • the conclusion of the Device Warranty; or
    • the Plan Cancellation.
  • If you breach these Terms and Conditions, such as failing to make any payment by the Due Date, and fail to remedy that breach within 7 days of receiving notice from us of such breach, we may:
    • elect to discontinue the provision of the Services, Applications and Software to you; and
    • terminate these Terms and Conditions at the conclusion of the Device Warranty.

19.3        Effect of Termination

On termination for any reason:

  • all rights granted to you under these Terms and Conditions shall immediately cease;
  • you will no longer be granted access to the Software, Applications or Services; and
  • Our IP Licence, Your Software Licence, and Your Application Licences will be immediately revoked.

20. Indemnity

 

You hereby defend, indemnify and hold harmless, us, our officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all actions, claims, demands, suits, charges, losses, costs, damages or expenses, arising in connection with your:

  • use of the Device(s), Services, Software, Applications or Website; and/or
  • breach of these Terms and Conditions.

21. GST

 

  • Unless otherwise expressly stated, the price and any other sums payable for any services are exclusive of GST.
  • Given GST is payable by you for any services under these Terms and Conditions, you agree to pay to us an additional amount that is equal to the amount payable by us for the relevant supply multiplied by the prevailing GST rate. This additional amount is payable at the same as the purchase price for the relevant supply to which the additional amount rates.
  • In the event of a taxable supply, we will ensure any such supply is provided for in any Invoice provided to you (as appropriate).

22. General

 

22.1        Events outside our Control

  • We will not be liable or responsible for any delay in or failure to comply with these Terms and Conditions if such delay or failure is caused by circumstances beyond that party’s reasonable control, including (without limitation), government restrictions, virus, pandemic, fire, flood, act of God, strikes, lock outs, stoppage of work, trade disputes, any act of war or terrorism, or the failure of public or private telecommunications networks (Event Outside Our Control).
  • If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms and Conditions:
    • our obligations under these Terms and Conditions will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
    • we will use our reasonable endeavours to find a solution by which our obligations under these Terms and Conditions may be performed despite the Event Outside Our Control.

22.2        Variation

We may vary these Terms and Conditions at any time, for any reason, by notice to you. You may not vary these Terms and Conditions without our consent.

22.3        Assignment

We may transfer our rights and obligations under these Terms and Conditions to another party at our discretion, without notice to you. You may only transfer your rights or obligations under these Terms and Conditions to another party if we agree in writing.

22.4        Waiver

If we fail to insist that you perform any of your obligations under these Terms and Conditions, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

22.5        Severance

Each of the conditions of these Terms and Conditions operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

22.6        Authority

Each party warrants, undertakes and represents to the other party that it has the necessary power and authority to execute, deliver and perform these Terms and Conditions and to become bound by it and that all necessary corporate action has been taken to authorise the execution of these Terms and Conditions.

22.7        Governing Law

These Terms and Conditions are governed by the law in force in New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of that State and the New South Wales Registry of the Federal Court of Australia in respect of all proceedings arising in connection with these Terms and Conditions.

23. Communication between Us

 

  • If you wish to contact us in writing, or if any condition in these Terms and Conditions requires you to give us notice in writing, you can send this to us by:
  • If you wish to speak to us you can call our Customer Support on (02) 8046 4860.
  • If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us when creating an Account.