1.SUBSCRIPTION AND ACCEPTANCE
(a) 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.
(b) This Agreement governs Your subscription with Us (Subscription).
By:
(i) signing and returning the Terms;
(ii) clicking to accept to the Terms online;
(iii) agreeing to the Terms by email or verbally;
(iv) Instructing or allowing Us to proceed with supplying the Services to You;
(v) paying part or full payment for Your Subscription;
(vi) signing and executing an order form that references this agreement; or
(vii) otherwise accepting the benefit of any part of the Services,
You agree to be bound by this Agreement which forms a binding contractual agreement. You represent and warrant that You have valid authority to enter into this Agreement on behalf of any entity You may represent.
(c) 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.
(d) Please note that Your Subscription will continue to renew indefinitely, and You will continue to incur Subscription Fees (except for any free trial), unless You notify Us that You want to cancel Your Subscription.
(e) We are constantly innovating in order to provide the best possible experience for Our users. We may therefore change this Agreement at any time by notifying You, and Your continued use of the Services following such an update will represent an agreement by You to be bound by the Terms as amended.
(f) Exclusion of competitors:You are prohibited from accessing Our website or Services, including all content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the Application, and all intellectual property rights related thereto (Content), in any way that competes with Our business. If You are in the business of providing similar services for the purposes of providing them to users for commercial gain, whether business users or domestic users, then You are a competitor of us. Competitors are not permitted to use or access any information or Content on Our website. 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.
(g) These Terms supersede any prior agreement.
(h) In all agreements, order forms and official documentation, the use of product names (Careview) refer to the company Careview and its wholly owned subsidiaries.1.9 Careview provides Products and Services to customers and businesses in Australia.
2.DEFINITIONS
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.
Personnel means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
Platform means the Microsoft Azure infrastructure on which Careview is built.
Posted Material means uploading or posting any information, materials or content to the Platform.
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.
User means end users of the Services and any other third party granted access to the Services by you.
We, Us or Ourmeans the company Careview, described in section 17 (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.
3.PRODUCT LICENSING
(a) 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.
(b) 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.
(c) 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 3(c). 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.
4.FEES AND PAYMENT FOR PRODUCT LICENSING
(a) 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-cancellable 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.
(b) 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.
(c) Overdue Charges. If any charges are not received from You by the due date, We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date, from the date such payment was due until the date paid, and/or We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4(b) (Invoicing and Payment).
(d) 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.
(e) 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).
(f) We reserve the right to report bad debts to independent credit data agencies.
(g) 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.
5.YOUR OBLIGATIONS
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that We will have no liability in respect of any damage, loss or expense which arises in connection with Your, Your Personnel’s, or any User’s, breach of these Terms, and You indemnify Us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without Our prior written approval:
(i) upload sensitive information or commercial secrets using the Platform;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material or any other form of material using the Platform;
(iii) upload any form of material that is owned or copyrighted by a third party;
(iv) make copies of the Platform (including any material);
(v) adapt, modify or tamper in any way with the Platform and the Data Storage Services;
(vi) remove or alter any copyright, trade mark or other notice on or forming part of the Platform (including any videos);
(vii) create derivative works from or translate the Platform;
(viii) publish or otherwise communicate the Platform (including any material) to the public, including by making it available online or sharing it with third parties;
(ix) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Platform to any third party;
(x) decompile or reverse engineer the Platform or any part of it, or otherwise attempt to derive its source code;
(xi) attempt to circumvent any technological protection mechanism or other security feature of the Platform and the Data Storage Services.
(c) If You become aware of misuse of Your Subscription by any person, any errors in the material on Your Subscription or any difficulty in accessing or using Your Subscription, please contact Us immediately using the contact details or form provided on Our website or email us.
6.USER OBLIGATIONS
You agree, and You must ensure that all Users agree:
(a) to comply with each of Your obligations in this Agreement;
(b) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Services;
(c) to not share Your Services account information with any other person and that any use of Your account by any other person is strictly prohibited. You must immediately notify Us of any unauthorised use of Your account, password or email, or any other breach or potential breach of the Product’s security;
(d) to not use the Services for any purpose other than for the purpose for which it was designed, including You must not use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(e) not to act in any way that may harm Our reputation or that of associated or interested parties or do anything at all contrary to the interests of Us or the Services;
(f) You must not make any automated use of the Services and You must not copy, reproduce, translate, adapt, vary or modify the Services without Our express written consent;
(g) that We may change any features of the Services at any time on notice to You;
(h) that information given to You, by Us or another User, is general in nature and We take no responsibility for anything caused by any actions You take in reliance on that information; and
(i) that We may cancel Your Subscription and access to the Services at any time if We consider, in Our absolute discretion, that You are in breach or are likely to breach this clause 6.
7.INTELLECTUAL PROPERTY RIGHTS
(a) Unless otherwise indicated, We own or licence all rights, title and interest (including intellectual property rights) in Our Services and all of the Content. Use of the Content or materials for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without Our or, where applicable, Our licensors’ prior written consent. We and Our licensors reserve all rights not expressly granted in and to their content.
(b) Your use of Our Services and Your use of and access to any Content does not grant or transfer to You any rights, title or interest in relation to Our Services or the Content. You must not:
(i) copy or use, in whole or in part, any Content;
(ii) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or
(iii) breach any intellectual property rights connected with Our Services or the Content, including (without limitation) altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website or platform, or creating derivative works from the Content.
8.PROPRIETARY RIGHTS
(a) 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.
(b) 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.
(c) Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
(d) 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.
9.REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
(a) Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
(b) 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.
(c) 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.
(d) You acknowledge and agree that We cannot guarantee that:
(i) the Platform will be free from errors or defects;
(ii) the Platform will be accessible at all times;
(iii) messages sent through the Platform will be delivered promptly, or delivered at all;
(iv) information You receive or supply through the Platform will be secure or confidential; or
(v) any information provided through the Platform is accurate or true.
10.INDEMNITY
(a) 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.
(b) You are liable for and agree to indemnify, defend and hold Us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(i) any information provided by You that is not accurate, up to date or complete or is misleading or a misrepresentation;
(ii) your breach of this Agreement;
(iii) any misuse of the Services by You, Your employees, contractors or agents; and
(iv) your breach of any law or third party rights.
(c) You agree to co-operate with Us (at Your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of Your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information You have given us.
(d) You indemnify Careview, its resellers, partners, officers, directors, agents, affiliates, and licensors from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise in connection with:
(i) any breach of these Terms by You, Your Personnel or a User;
(ii) any act or omission of You, a User or Your Personnel;
(iii) any Posted Material You submit, share, upload, post or display on or to the Platform;
(iv) any use by Careview end users of Your Posted Material; or
(v) any claim that Your Posted Material violates any applicable law, including without limitation that it infringes the rights of a third party.
(e) This clause will survive the termination of this Agreement.
11.LIMITATION OF LIABILITY
(a) 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 4 (fees and payment for purchased services).
(b) 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.
(c) (Errors) We will use Our reasonable endeavours to correct any errors, bugs or defects in the Platform which are notified to Us by You unless the errors, bugs or defects:
(i) result from the interaction of the Platform with any other solution or any computer hardware, Platform or services not approved in writing by us;
(ii) result from any misuse of the Platform; or
(iii) result from the use of the Platform by You other than in accordance with these Terms.
(d)(Risk) You expressly understand and agree that Your use of the Services is at Your sole risk.
(e)(Exclusion) To the maximum extent permitted by applicable law:
(i) all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded. In particular, Careview and its licensors and resellers do not represent or warrant to You that:
(A) your use of the Services will meet Your requirements,
(B) your use of the Platform will be uninterrupted, timely, secure or free from error,
(C) any information obtained by You as a result of Your use of the Services will be accurate or reliable, and
(D) that defects in the operation or functionality of any software provided to You as part of the Services will be corrected.
(ii) Any material downloaded or otherwise obtained through the use of the Platform is done at Your own discretion and risk and You will be solely responsible for any damage to Your computer system or other device or loss of data that results from the download of any such material.
(iii) No advice or information, whether oral or written, obtained by You from Careview or through or from the Platform shall create any warranty not expressly stated in these Terms.
(iv) Careview and its licensors and resellers further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
11.2 LIMITATION OF LIABILITY
(a) To the maximum extent permitted by law, Our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, the Services or a Subscription:
(i) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010(Cth)); and
(ii) is limited, insofar as concerns other liability, to the amount equal to the past six months of the Subscription Fees paid to Us under these Terms as at the date the event giving rise to the relevant liability occurs (or, where there are multiple events, the date of the first such event).
(b) You expressly understand and agree that Careview shall not be liable to You for any loss or damage which may be incurred by You, including but not limited to loss or damage as a result of:
(i) any changes which Careview may make to the Platform, or for any permanent or temporary cessation in the provision of the Services (or any features within the Platform);
(ii) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through Your use of the Platform and/or Services;
(iii) your failure to provide Careview with accurate account information;
(iv) your failure to keep Your password or account details secure and confidential;
12.DISCLOSURE
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.
13.TERM AND TERMINATION
(a) 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.
(b) 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.
(c) Termination. If You:
(i) breach any of these terms (including, without limitation, by non-payment of license fees according to section 4) and do not remedy this breach within 30 days after receiving notice of the breach if the breach is capable of being remedied;
(ii) breach any of this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of section 4; or
(iii) 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.
(iv) You may terminate this Agreement at any time upon 30 days written notice to Us.
(d) 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.
(e) 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.
(f) Surviving Provisions. Sections 4 (Fees and Payment for Product Licensing, 5 (Indemnity), 11 (Limitation of Liability), will survive any termination or expiration of this Agreement.
14.PRODUCT SUPPORT
(a) 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.
(b) Summary of Services Offered and included in Careview license support:
(i) Email support that can include the provision of general information and troubleshooting, problem determination, isolation and verification details as well as instructed Services.
(ii) Remote assistance using administrative login details to further investigate issues, provide on-the-spot Services and make administrative adjustments.
(iii) Elevation of initial email enquiries to telephone communications if immediate, further information, investigation or support is required.
(c) Hours of Support Service. Careview customer support team members operate between standard business hours: Australian Eastern Standard Time: 8:30am – 5:00pm Monday to Friday.
(d) Support Request Procedures. Customer emails Careview support using the following email address: support@careviewapp.com
(i) Include the level of importance in the subject line of Your support email:
(A) Minor: No business critical systems affected – small or minimum number of users affected, time-flexible changes and adjustments to configuration, adding of fields or setup of non-critical workflows.
(B) Moderate: Low level of business critical systems affected – Significant qty of users affected, changes including adjustments to configuration, adding of fields or setup of critical business workflows needs to be performed as soon as possible.
(C) Critical: High level of business critical systems affected – High level of or all users affected. Support and assistance required at first available time.
(ii) 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:
(A) Email Response: The provision of general information and troubleshooting, problem determination, isolation and verification details as well as instructed Servicess via email reply.
(B) Telephone Response: A Careview team member will elevate a support request to telephone communications if direct verbal communications are required to find a suitable Services, investigate and further isolate issues and personally instruct users through Services processes.
(iii) 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 reServices progress. We will endeavour to advise You of any available work-arounds while We work to resolve an incident.
(e) ReServices. 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 Services, in Our discretion. The status of the incident’s ticket will be considered to “On Hold” if Careview is waiting for positive confirmation from the customer that the incident has indeed been resolved.
(f) 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 Servicess 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.
15.DISCLAIMERS
(a) Service Standard: We will provide the Services with due care and skill, the Services will be fit for the purpose that We advertise, and We will supply the Services within a reasonable time.
(b) Warranties: Except for Your statutory rights, We exclude all express and implied warranties representations and guarantees and all material and work is provided to You without warranties, representations and guarantees of any kind.
(c) Delay: Where the provision of Services depends on Your information or response, We have no liability for a failure to perform the Services, where it is affected by Your delay in response or supply of incomplete or incorrect information.
(d) Referrals: We may provide You with contact details of third party specialists. This is not a recommendation by Us for You to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and We disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.
(e) Availability: To the extent permitted by law, We exclude liability for:
(i) the Services being unavailable; and
(ii) any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by You or made against You, arising out of or in connection with Your inability to access or use the Services or the late supply of Services, even if We were expressly advised of the likelihood of such loss or damage.
(f) Disclaimers: To the extent permitted by law We disclaim all responsibility and liability for:
(i) products You purchase from a third party; and
(ii) any leaks caused by Our penetration through the wall or roof.
(g) Disclaimers: To the maximum extent permitted by law, We make no representations or warranties about Our Services, website or the Content, including (without limitation) that:
(i) they are complete, accurate, reliable, up-to-date and suitable for any particular purpose;
(ii) access will be uninterrupted, error-free or free from viruses; or
(iii) our website/application will be secure.
Everything on Our website/application and the Content is provided to You “as is” and “as available “without warranty or condition of any kind. You read, use and act on Our Services and the Content at Your own risk.
(h) Third party sites: Our website may contain links to websites and/or applications operated by third parties. Unless expressly stated otherwise, We do not control, endorse or approve, and are not responsible for, the content on those websites and/or applications. You should make Your own investigations with respect to the suitability of those websites and/or applications.
(i) This clause will survive the termination of these Terms.
16.FAIR AND REASONABLE USE POLICY
In good faith, Careview permits customers to deactivate their client profiles. The intent of this is to better support the growth of our client’s business as they are only charged for their active client profiles. This means a deactivated client profile does not contribute to the subscription cost for the customer, hence allowing more control of costs for the customer. The reduction of active client profiles (ie. deactivating client profiles) may also coincide with an automatic reduction in Careview subscription costs as per Careview’s subscription pricing tiers. We understand this can happen on occasion. It is expected that any reduction of active client profiles occurs when the client is no longer with the customer, which Careview sees as a fair and reasonable use of this feature. It is considered an act against fair and reasonable use when client profiles are made inactive to reduce the subscription costs. Careview necessarily maintains all the data associated with active and deactivated client profiles and as such, incurs costs to maintain, store and meet the relevant ISMS compliance and ISO 27001 standards. It is important to recognise Careview is not a data storage service.
Careview monitors the activation and deactivation of every customer account. When a customer deactivates a quantity of active client profiles that Careview deems questionable, within a period of time that Careview deems questionable, Careview maintains the right to charge the customer for all active and deactivated client profiles and will backdate if necessary.
17.FEEDBACK AND DISPUTE RESOLUTION
(a) Your feedback is important to us. We seek to resolve Your concerns quickly and effectively. If You have any feedback or questions about the Services, please contact us.
(b) If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:
(i) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(ii) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
(c) Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.
18.WHO YOU ARE CONTRACTING WITH, NOTICES & GOVERNING LAW & JURISDICTION
(a) 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.
(i) You are contracting with: Careview Pty Ltd;
(ii) Notices should be emailed to: support@careviewapp.com
(iii) The governing law is: Queensland, Australia;
(iv) The Courts having Exclusive Jurisdiction: Queensland, Australia;
(v) You will be billed in: $ AUD.
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.
(b) 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.
(c) 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.
(d) 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.
19.GENERAL PROVISIONS
(a) Relationship of the Parties: This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(b) 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.
(c) 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.
(d) Legal Fees: You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4(b) (Invoicing and Payment)
(e) 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.
(f) 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.
(g) Publicity: You consent to Us stating that We provided Services to You, including but not limited to mentioning You on Our website, social media platforms and in Our promotional material.
(h) Email: You acknowledge that We are able to send electronic mail to You and receive electronic mail from You. You release Us from any claim You may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to Your system or any files by a transfer.
(i) GST: If and when applicable, GST payable on the Fee for the Services will be set out on Our invoices. You agree to pay the GST amount at the same time as You pay the Fee.
(j) Force Majeure: We will not be liable for any delay or failure to perform Our obligations under these Terms if such delay is due to any circumstance beyond Our reasonable control.
20.PRIVACY
(a) 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 InformationPrivacy 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).
(b) 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.
(c) 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 We provide to You.
(d) We will NOT be responsible for the safe storage and protection of all sensitive data that You export from Your system, such as, but not limited to:
(i) NDIS Claims;
(ii) Invoicing Extracts;
(iii) Reports;
(iv) Service Provider Exports;
(v) Statements;
(vi) Client Profile Exports.
(e) We will NOT be responsible for the safe transmission, storage and protection of all sensitive customer data that You request for Us to export from Your system, such as, but not limited to:
(i) Custom Audit Reports
(ii) Custom Data Reports
(iii) Data Extracts.
(f) We will NOT be responsible for the safe transmission, storage and protection of all sensitive information that You send to Us for the purpose of importing into Your system, such as, but not limited to:
(i) Client Profile Data
(ii) PRODA Service Bookings
(iii) Service Provider Data.
(g) We will NOT be responsible for the safe transmission, storage and protection of all sensitive information that You, Your NDIS Participants or external Service Providers, such as Support Coordinators, that You have linked to Your system, share with Us from across the Careview Platform of products, including:
(i) Screenshots that contain confidential client information
(ii) Media files that expose confidential client information.
(h) Where confidential data is being shared with us, all efforts must be taken by the Sender to protect, obfuscate or redact confidential client information.
(i) This clause will survive termination or expiry of this Agreement.
21.SECURITY
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.
