THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SIGNING AND EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Careview reserves the right to vary and update these terms from time to time during the period of your contract with Your prior written consent.
These terms of Service supersede any prior agreement.
In all agreements, order forms and official documentation, the use of product names (Careview) refer to the company Careview Pty Ltd and its wholly owned subsidiaries.
Careview provides Products and Services to customers and businesses in Australia.
This Agreement was last updated on January 1st 2018. It is effective between You and Us as of the date of You accepting this Agreement.
“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us. Order Forms shall be deemed incorporated herein by reference.
“Product” means licensed product services (Careview) that You purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the professional services delivered by Us or one of our Partners distinguished by an Professional Services Order form, Statement of work, Scoping document or Master Services Agreement.
“We,” “Us” or “Our” means the Careview company Careview Pty Ltd, described in section 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity or person for which you are accepting this Agreement, and Affiliates of that company or entity or person.
“Your Data” means all electronic data or information submitted by You to the Product or read by the Product from your underlying data store.
“Platform” means the Microsoft Azure infrastructure on which Careview is built.
2.1. Provision of Product Licenses. We shall make the Product available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Unless specifically stated, the Product is purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.
2.3. Your Modifications. Subject to the terms and conditions of this Agreement: (1) for any element of the Product or Services provided by Us that are configured, customized and expanded upon by You, Careview Services or an Implementation Partner constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Product but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement, or a Careview Services Agreement to the contrary, We provide no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products.
You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 2.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation at your expense.
3.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, fees are based on Product Licenses purchased and not actual usage, payment obligations are non-cancelable and fees paid are non-refundable, and the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. The start date of Your licensing agreement will represent the start of the license billing period except as otherwise specified herein or in an Order Form. Billing will be initiated from the beginning of your Start Date for ALL Users specified in the Order Form. User license billing will not be subject to the completion of an accompanying Services project or customization/implementation of the Product unless a billing/user ramp schedule is defined in the license Order Form.
3.2. Invoicing and Payment. If You provide credit card information to Us, You authorize Us to charge such credit card for all Product Licenses listed in the Order Form for the initial subscription term. Term length will be stipulated on the Order Form along with billing periods. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
3.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Invoicing and Payment).
3.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Product or Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Product to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before suspending Our Product to You.
3.5. Payment Disputes. We shall not exercise Our rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
3.6. Formal Collection of Payment. You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties if any amount owing by You under this or any other agreement for Our Product or Services is 30 or more days overdue and no effort to resolve a payment dispute has been made. All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including; Third-party collection fees, interest charges identified in 3.3 (Overdue Charges).
3.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
4.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
4.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
4.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
5.2. Warranties. You accept that the Services and Product (including any content, software, functionality and operational platform or hosting services) are provided “as is”, without warranty of any kind. You accept that Careview does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Likewise, the various platform services that support the delivery of Services including but not limited to Microsoft Azure services may be unavailable from time to time or execute service delivery in a manner or time-frame that is not immediate.
5.3. Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. content and beta services are provided “as is,” exclusive of any warranty whatsoever. each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
6.1. Indemnification by us. We shall defend you against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Product as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You
(a) promptly give us written notice of the Claim Against You;
(b) give us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and
(c) provide to us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Product so that it no longer infringes or misappropriates, without breaching Our warranties, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
6.2. Indemnification by you. You shall defend us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Product in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against us; provided that We (a) promptly give You written notice of the Claim Against us; (b) give You sole control of the defense and settlement of the Claim Against us (provided that You may not settle any Claim Against us unless the settlement unconditionally releases us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
7.1 Limitation of Liability. neither party’s liability with respect to any single incident arising out of or related to this agreement will exceed the amount paid by customer hereunder in the 12 months preceding the incident, provided that in no event will either party’s aggregate liability arising out of or related to this agreement exceed the total amount paid by customer hereunder. the above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. however, the above limitations will not limit customer’s payment obligations under section 6 (fees and payment for purchased services).
7.2. Exclusion of Consequential and Related Damages. In no event will either party have any liability to the other party for any lost profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. the foregoing disclaimer will not apply to the extent prohibited by law.
8.1 Market Disclosure. When You become a customer, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral. You agree to provide Us with an approved company logo that We may publish on Our website and/or marketing collateral to communicate such relationship.
9.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
9.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form and is subject to any specified special terms and conditions. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your price point remains active, Careview will not increase your per-user license fees for the duration of your license contract.
9.3. Termination. If You:
(a) breach any of these terms (including, without limitation, by non-payment of license fees according to section 3.) and do not remedy this breach within 30 days after receiving notice of the breach if the breach is capable of being remedied;
(b) breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of section 3; or
(c) You or your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction. Careview can:
Suspend or terminate this Agreement and Your use of the Services and Products and You will remain liable for any accrued charges and amounts which became due for payment prior to termination, as well as immediately cease to have access to the Services.
(d) You may terminate this Agreement at any time upon 14 days written notice to Us.
9.4. Refund or Payment upon Termination. Careview will not provide any refund for any remaining prepaid period for the time period outlined in the subsequent license Order Form provided. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.5. Your Data Portability and Deletion. Apart from administrative metadata and transaction data (logging, message/notifications etc), Careview does not store your data in its own application data store, All underlying record data remains within the underlying application. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make any of Your Data stored within Careview that does not exist within the underlying data storage application available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
9.6. Surviving Provisions. Sections 3 (Fees and Payment for Product Licensing, 5 (Mutual Indemnification), 6 (Limitation of Liability), will survive any termination or expiration of this Agreement.
10.1. Overview. All Careview license customers receive product support free of charge for the duration of license contracts. In all cases, Careview support enquiries will be carried out via email and only elevated to telephone communication when initiated by Careview Customer Support team members.
10.2. Summary of Services Offered and included in Careview license support.
10.3. Hours of Support Service. Careview customer support team members operate between standard business hours: Australian Eastern Standard Time: 8:00am – 6:00pm Monday to Friday.
10.4. Support Request Procedures. Customer emails Careview support using the following email address:
1. Include the level of importance in the subject line of your support email:
2. A Careview customer service team member will respond to your enquiry as soon as possible within given time-frames in one of the following ways:
We will use reasonable endeavours to resolve any reported incidents as soon as practicable. We will prioritise critical incidents above moderate and minor incidents and regularly update you on resolution progress. We will endeavour to advise you of any available work-arounds while we work to resolve an incident.
10.5. Resolution. An incident will be classed as resolved as soon as a Careview customer support team member has provided the customer with what it believes to be the appropriate solution. The status of the incident’s ticket will be considered to “On Hold” if Caerview is waiting for positive confirmation from the customer that the incident has indeed been resolved.
10.6. Training & User Development Programs. Careview offers training programs for Careview customers. These are a valuable opportunity to ensure that users are at their maximum capability to find solutions to issues themselves as well as completely familiarize themselves with the application. If training packages or train the trainer sessions have not been specified in an accompanying license Order Form or Services Agreement – please contact us for pricing of Careview training programs.
To find out more information and pricing of such programs please email:
11.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts in locations as specified above. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: the first business day after sending by email. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
11.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
11.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Legal Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 3.2 (Invoicing and Payment)
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13.1. Each party and its personnel agrees to comply with all Privacy Laws as if it were an entity bound by such Privacy Laws (where Privacy Laws includes the Privacy Act 1988 (Cth), the Health Records and Information Privacy Act 2002 (NSW) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that party or its personnel in connection with the Services, Product or this Agreement).
13.2. We will take all reasonable steps to notify You in writing if We become aware of any actual or threatened or suspected breach of Your Data where such breach involves personal information.
13.3 We will limit Our employees’ and contractors’ access to Your Data to a “need to know” basis and ensure that it is not accessed for any purpose other than the provision of the Services and Product to you.
This clause will survive termination or expiry of this Agreement.
14.1. We will maintain commercially reasonable security measures to protect all confidential information and Your Data in our possession or control, or in the possession or control of our personnel, from unauthorised access, use, copying or disclosure.