eHomeCare does not provide medical advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of information provided through the Services.
You have contracted with the Company to be provided the Services using some or all of the System. The Company is not an emergency service or health care provider. The Company has agreed to provide the Services as described in clause 2.3 of these terms and the SOW.
2. System and Services
During the Term, the Company shall provide support and maintenance for such of System as is used to provide the Services in accordance with the terms set out in Service Level and Support Terms.
The Company will:
monitor the System according to Your Instructions;
provide monitoring services for the purposes of monitoring Service Signals and taking the appropriate action on as per Your Instructions on receipt of Service Signals; and
maintain a log containing details of Service Signals received from Your monitored device(s) and record actions taken by the Company’s resources in response to Service Signals received.
The Company shall make available to You the Company’s System and Services as specified in Services and Fees and, if applicable, a Statement of Work for the Term and for use by the number of Devices and Users specified.
The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the System in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third party providers, or because of other causes beyond the Company’s reasonable control. The Company shall use reasonable efforts to provide advance written notice of any scheduled service disruption by third parties.
The Company does not warrant that the System will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set out in this section, the Services and Implementation Services are provided “as is” and the Company disclaims all warranties, express or implied, other than those required to be provided to You by law.
3. Additional Users
Any User introduced by You must adhere to the terms of this Agreement.
You must explain the Service and the terms of this Agreement to Your Users and obtain each User’s authority to represent them.
If a User breaches the terms of this Agreement, You will be responsible for such breach unless we agree otherwise in writing.
You shall require that all Users keep any password information strictly confidential. User IDs, based on a User's E-mail address, will be provided by us at Your request, to individual Users and may not be shared. You and Your Users shall be responsible for any and all actions taken using such accounts and passwords.
You may add Users by entering into additional Order(s) with the Company. Unless otherwise specified in the applicable Order form (and agreed by us):
the Service Term for such additional Users’ Subscriptions shall be coterminous with the latest expiration of the Service Term in effect at the time the additional Users are added;
pricing for the additional Users’ Subscriptions shall be the Company’s then current Service rates, pro-rated for the remainder of the Service Term in effect at the time the additional Users are added; and
instructions for such additional User(s) must be specified in an amended or replacement Work Order.
- It may be necessary for the Company to provide certain Equipment to You, which the Company may do by way of hire or lease arrangements, or alternatively, by way of a purchase agreement.
- The Company retains ownership of any Equipment You have hired or leased from the Company. You will obtain ownership of any Equipment that You have purchased from the Company.
- You agree that the Company may register its Security Interest for any hired or leased Equipment or for Equipment sold to You on credit, on the PPSR without notice to You or any other person.
- You agree that You will be responsible for any Loss, damage, costs of repairs and/or replacement of Equipment the Company provides under this Agreement where that Equipment is lost by You or damaged by:
- any person, other than a Company employee or contractor in the course of providing the Services to You; or
- You or any other cause whatsoever (other than by a Company employee or contractor).
5. Response Procedures
On receiving Service Signals, the Company will follow Your Instructions and, where applicable, will use all reasonable endeavours to notify the nominated contacts, in order of priority, as specified in Your Instructions for the User concerned, provided that:
- where the first contact is unable to be contacted in person, the Company will attempt to notify the next contact in the priority order as specified in Your Instructions for that User;
where the Company has attempted to notify contacts as per Your Instructions without success, the Company shall if applicable and as soon as practical notify the police, fire, medical and/or patrol authorities as specified in Your Instructions for that User and in accordance with the relevant authority’s operating procedures and any laws or regulations governing those authorities at Your cost. By operating an app or device and triggering a Service Signal, You and each User consents to the police, fire and medical authorities using force if necessary to enter Your or the User's premises at Your or the User's cost.
6. Restrictions and responsibilities
- The sale or transfer of a User's mobile device does not relieve You of duties and obligations under this Agreement.
You and each User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the System or any System, documentation or data related to the System; modify, translate, or create derivative works based on the System (except to the extent expressly permitted by Company or authorised within the System); use the System or any System for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
You and each User may not remove or export from the jurisdiction or allow the export or re-export of the System or anything related to the System, or any direct product of the System in violation of any restrictions, laws or regulations of the jurisdiction.
You and each User represent, covenant and warrant that You and the Users will use the System only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations.
The Company may monitor You’re and the Users use of the System and may prohibit any use of the System it believes may be (or alleged to be) in violation of this Agreement or any laws.
You and Your Users shall be responsible for obtaining and maintaining any Equipment and ancillary corrections needed to connect to, access or otherwise use the System, including, without limitation, routers, hardware, servers, software, operating systems, networking, web servers, internet connection of at least 3G and the like. You and each User shall also be responsible for maintaining the security of the Equipment, Your or Your Users' account, passwords (including but not limited to administrative and User passwords) and files, and for all Users of Your account or the Equipment with or without Your knowledge or consent.
You or Your User respectively shall pay all charges made by any telephone company or other utility or communications service providers for the service charges of mobile devices or other communications technologies connecting Your or Your User's mobile device to the Company.
7. Confidentiality and Ownership
- The parties must not disclose the Confidential Information to any person except its Users, employees, officers, agents and contractors without the prior written consent of the other party except as permitted under this Agreement.
The parties must take all reasonable steps to ensure that each of its Users, employees, agents and contractors do not make public or disclose the Confidential Information except as permitted under this Agreement.
You shall own all right, title and interest in and to the Customer Data produced as a result of the Company performing the Services. The Company shall own and retain all right, title and interest in and to the System, including all improvements, enhancements or modifications to the System.
The Company acknowledges that all proprietary and/or tangible materials authored or prepared by the Company for You as the Deliverables of the SOW are the sole and exclusive property of You. The Company agrees to transfer and convey to You the entire right, title, and interest in and to the Deliverables of the SOW.
You and the Users hereby grant the Company a non-exclusive irrevocable, perpetual licence to use the Customer Data and Deliverables for the purpose and subject to the restrictions set out in clause 7.6.
The Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived from the Customer Data or Deliverables), and the Company will be free (during and after the Term) to:
- use such information and data to improve and enhance the System and for other development, diagnostic and corrective purposes in connection with the System and other Company offerings; and
disclose such data either in aggregate or other de-identified form in connection with its business. The Company cannot sell any of Customer Data from You or the relevant User or give that Customer Data to any third party without the written consent.
8. Payment of Fees and charges
- You must pay the Company the Fees and charges for the Services and Implementation Services .
- If Your use of the Services exceeds the Service Capacity or otherwise requires the payment of additional fees or charges (per the terms of this Agreement), You must pay the additional Fees and charges.
The Company may change the Fees and charges and to institute new Fees and charges at the end of the Initial Service Term or thereafter, upon 30 days’ written notice to You.
The Company may issue an invoice to You which must be paid by You within 15 days after the date of the invoice.
Unpaid amounts will bear interest at the Default Interest Rate calculated and accruing monthly, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
9. Term and Termination
- Subject to this clause 9, this Agreement is for the Initial Service Term as specified in the Important Information Schedule, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”).
Either party may terminate this Agreement upon 30 days’ written notice for any reason or without notice if the other party:
- materially breaches any of the terms of this Agreement and the breaching party fails to remedy the breach within 10 days of receiving written notice from the non-breaching party; or
is subject to an Insolvency Event.
In the event of a termination:
You must pay for the Services up to and including the last day on which the Services are provided;
You are entitled to a refund for any unused Fees or Charges at the date of termination of this Agreement that had been prepaid under this Agreement (net of any amount payable to the Company under clause 9.3(c)); and
You must return to us any Company Equipment not owned by You or a User that is in Your or a User's possession, in the same condition as it was provided (fair wear and tear accepted), preferably in the original packaging, failing which You will pay the Company the balance of any agreed amortised equipment and services that have been costed to the Agreement as set out in the Scope of works or relevant schedule i.e. Services and Fees.
- On termination, subject to You complying with clause 9.3(c), the Company will make all Customer Data available to You electronically for a period of 30 days, after which the Company may delete all stored Customer Data.
If the Company terminates commercial support for the Service for reasons other than Material Breach of this Agreement, the Company will, subject to You complying with clause 9.3(c), make all reasonable efforts to keep the Service functioning for You for a period of 3 months to enable a transition to another service provider.
The following sections of this Agreement survive termination: 7, 8, 9 11, 14 and 18.
- Subject to Your and a User's statutory rights (which cannot be excluded by law) and Your rights under this Agreement, the Company makes no guarantee or warranty, including any implied warranty of merchantability or fitness for a particular purpose, that any Services, software applications or hardware devices supplied by the Company will avert or prevent occurrences of emergency situations, deterioration in a User's health or well-being or the consequences therefrom.
Subject to Your and Your Users' statutory rights (which cannot be excluded by law) and Your rights under this Agreement, the Company makes no warranty of any kind, express or implied that the Equipment, software applications, or hardware devices supplied, or any hardware, software or networks used in connection with the system, shall correctly handle the processing of Service Signals or be available on a continuous basis.
The Company does not warrant that the System will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from use of the Services.
You and Your Users accept that the Services and Implementation Services are provided “as is” and You or Your Users have not relied on any warranty or representation other than as set out in this Agreement.
Subject to you’re and Your Users' statutory rights, no suit or cause of action shall be brought against the Company more than 1 year after the cause of action accrues.
11. Liability and Indemnity
- To the fullest extent allowed by law, You release the Company from and indemnify it against all liability to You or any User under or in relation to or arising out of this Agreement whether such liability is direct or indirect, arises by virtue of act or omission (except for fraud or gross negligence by the Company), or is in the nature of indirect or consequential loss, loss of profits or opportunity, loss of or damage to data, whether in tort, statute, contract or at common law, and whether or not such Loss, cost, expense or liability was foreseeable.
Without limiting the generality of clause 11.1, the Company is not liable for Losses caused by the malfunction or non-function of the System, software application, monitoring device, mobile device, hardware accessory, monitoring, signal handling or dispatching services except if such Loss is due to the Company’s fraud or gross negligence.
The obligations in this clause 11 do not apply with respect to portions or components of the Service:
- not supplied by the Company;
made in whole or in part in accordance with Your specifications;
modified by Your or a User after delivery by the Company;
combined with other products, processes or materials where the infringement relates to such other products, processes or materials;
where You or a User continue the activity after being notified by the Company or after being informed of modifications that would have avoided the alleged infringement; or
where Your or a User's use of the Service is in breach of this Agreement.
- The Company will take out and maintain:
- all statutory compulsory insurances including, without limitation, those insurance policies required to be effected with respect to statutory workers’ compensation; and
a valid and enforceable professional indemnity insurance policy in respect of the Services with a limit of liability of the amount of $2,000,000 AUD.
a valid and enforceable Public & Product liability insurance policy in respect of the Services with a limit of liability of the amount of $10,000,000 AUD.
- The Company must provide evidence that the insurance required by clause 12.1 is current when requested by You.
13. Marketing and Promotion
Each party (the “Granting Party”) hereby grants to the other party (the “Receiving Party”) a non-transferable, non-exclusive, non-sub-licenseable, royalty-free license to use and display those trade names, trademarks, service marks, and logos of the Granting Party in fulfillment of its obligations in this Agreement and for use in materials used to promote the Receiving Party’s business and services and the existence of this Agreement.
Neither party may issue a press release relating to this Agreement without the prior written consent of the other party.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or severed to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
The Company may assign any of its rights and obligations under this Agreement by giving written notice to You.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
Any waivers and modifications must be in a writing signed by both parties.
No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and You do not have any authority of any kind to bind the Company.
A party may send a notice in connection with this Agreement by hand delivery, pre-paid post, email or facsimile transmission to another party at its details set out in the Important Information Schedule.
This Agreement is governed by the laws of the State of Victoria, Australia and each party submits to the jurisdiction of the courts of that State.
- All amounts payable by or to a party under this Agreement have been calculated without regard to GST except where this Agreement otherwise provides.
If the whole or any part of any such amount is the consideration for a taxable supply for which the supplying party is liable to pay GST, the supplying party may charge the party liable to pay for the taxable supply under this agreement, and that party must pay the supplying party, concurrently with the payment of that amount, an additional amount equal to the GST payable in respect of the taxable supply calculated on the basis that the value of the taxable supply is the amount payable for the taxable supply excluding any GST.
The recovery of consideration for any taxable supply made under this Agreement is subject to the supplying party issuing to the party liable to pay for the taxable supply a tax invoice in respect of that supply.
16. Force Majeure
Neither party is liable for any delay, interruption nor failure to perform its obligations under this Agreement (other than the obligation to pay money) to the extent such delay or failure is due to an act, omission or circumstance beyond the reasonable control of a party, including but not limited to acts of God, storm, fire, flood, earthquake, war, terrorism, civil disorder, power interruptions, telecommunication system failures, strikes or acts or inactions of a governmental agency.
17. Conflict of Terms
Should there arise a conflict of terms or conditions between this Agreement and a purchase Order provided by You it is agreed that the terms of this Agreement shall prevail over the purchase Order and the purchase Order terms will be of no effect.
18. Definitions and Interpretation
Agreement means this agreement and includes the annexures to this Agreement.
Commencement Date means the date provided in the Important Information Schedule.
Confidential Information means any information:
relating to the business of the parties;
which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential,
but excludes any information that is in the public domain (other than due to a breach of this Agreement).
Customer Data means data provided by You in relation to Your or Your Users’ personal details.
Default Interest Rate means the interest rate detailed in the Important Information Schedule.
Equipment means any equipment supplied by the Company to You as part of the provision of the Services.
Fees means the fees and charges payable by You under this Agreement including any Implementation Fee.
GST means a goods and services or value added tax imposed on any goods or services provided under this Agreement.
Implementation Fee means the implementation charges set out in the SOW.
Implementation Service means those implementation services set out in the SOW.
Important Information Schedule means that schedule on the first page of this Agreement.
Insolvency Event means if a person:
(a) is dissolved, wound up or placed into bankruptcy or steps are taken with the intention that the person be dissolved, wound up or placed into bankruptcy;
(b) has a liquidator, provisional liquidator, controller, administrator, receiver, or trustee in bankruptcy appointed in respect of that person or any property of the person (or takes possession of such property) or an application is made to a court for an order that such an appointment be made in respect of the person or any property of the person;
(c) is (or states that it is) insolvent or an insolvent under administration (each as defined in the Corporations Act 2001 (Cth));
(d) has anything analogous or having a substantially similar effect to any of the events specified above happen to it under the law of any other jurisdiction.
Instructions means instructions specified by You and reflected in the SOW or otherwise agreed in writing with the Company.
Loss means all loss, liability, damage, claims, injury (including disease or illness), death, property damage, expense (including legal expenses) or cost.
Material Breach means a breach of a term of this Agreement which is significant and which is either incapable of remedy or has not been remedied within 14 days of the Company providing notice to You to do so.
Order means a purchase order for goods or services issued by You under this Agreement.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the register established under the PPSA.
SaaS platforms means any Software as a Service platform used in the provision of the Services.
Security Interest has the same meaning as under the PPSA.
Services means the services to be provided by the Company to You under this Agreement as set out in Annexure 1 and the SOW.
Service Signals means the monitoring signals sent from the User's device directly or indirectly to the Company's servers.
SOW means the statement of work attached as Annexure 2.
Subscription means the subscription for Services under this Agreement by a User.
System means Service modules from SaaS platforms, recording devices, and Service signals sent from the mobile devices via communications media including, but not limited to: cellular devices, bluetooth, satellite technology, internet and/or radio telemetry and received by means of a monitoring system by the Company.
Term has the meaning set out in clause 9.1.
User means any person other than You who uses the System or Services for their personal use.
In this Agreement headings and bold typing are included for convenience only and do not affect interpretation and, unless the context otherwise requires:
(a) a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors and permitted assigns;
(b) a reference to a statute or regulation is a reference to that statute or regulation as amended;
(c) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision;
(d) a monetary reference is a reference to Australian currency;
(e) a word or term defined in the Corporations Act has the same meaning in this Agreement; and
(f) a word or term defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this Agreement.