Terms of Use

Please read this carefully before opening or using the InteliCare Application.

 

These Terms of Use govern Your use of the InteliCare software application known as ‘InteliCare’, ‘InteliLiving’ or ‘InteliCare Pro’ (Application) and form a legally binding agreement between InteliCare Holdings Ltd ACN 622 484 397, as owner and operator of the Application (InteliCare, us, we) and You in relation to Your use of the Application.
It is important that you read these Terms of Use before using the Application. If You have any questions, please contact us at [email protected].
From time to time, these Terms of Use may change. Please check these Terms of Use regularly so you are aware of any changes. Once You have accepted these Terms of Use (see below) Your continued access to and use of the Application once You have been notified of any revisions or changes to these Terms of Use means that You accept those revisions or changes.

1 Definitions
Application means the software application known as ‘InteliCare’, ‘InteliLiving’ or ‘InteliCare Pro’ and any other application software utilised in conjunction with the Hardware from time to time.
Application Subscription means a subscription for access to the Application in order to receive the Services in accordance with these Terms of Use.
Fees means the fees and charges charged by InteliCare for access to the Application and the associated Services.
Hardware means hardware installed at a Resident’s home, comprising of sensors supplied by InteliCare and any other associated hardware.
InteliCare Marks means a trade mark (whether registered or unregistered), logo, company name, business name or trading name, including all associated logos, get-up and goodwill, owned, licensed and/or used by InteliCare, including “InteliCare” and the InteliCare logo.
Intellectual Property Rights means any and all intellectual property rights throughout the world, including:
(i) any patent, copyright (including future copyright), trade mark (whether registered or unregistered), software, design, circuit layout right, trade, business or company name or other proprietary right, or any right to register such rights; and
(ii) all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, data or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law of any jurisdiction.
Normal Support Hours means 8:30 am – 5 pm (Perth time) on Monday to Friday.
Permitted Purpose means the purposes of monitoring the deviations in the Resident’s normal behaviour.
Personal Information has the meaning given to that term in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth), as amended from time to time.
Resident means the occupant of a living environment in which the Solution is installed in order for InteliCare to provide its services, and whose behaviour and in-home activity You monitor using the Solution.
Resident Data means all data and information that is uploaded to or entered into the Application which is about the Resident as part of or for the purpose of delivering the Services.
Service means the provision of notifications concerning a Resident’s activity to be provided by InteliCare to You.
Solution means the real-time home monitoring solution and notification system installed at a Resident’s home, including the Hardware. Specifically, the Solution incorporates both the Hardware and Application software.
Subscription Start Date means the date on which the Hardware is installed successfully and the Application has completed the process of learning the Resident’s initial household behaviour patterns.
Subscription Term means the subscription period applicable to an Application Subscription commencing on the Subscription Start Date and ending on the date that the Services are terminated in accordance with these Terms of Use.
Support and Maintenance means the remote delivery of offsite advice, documentation, guides and assistance with Application software and Hardware faults during the Normal Support Hours and maintenance of Application software sufficient to deliver the Service. For avoidance of doubt, Support and Maintenance does not include onsite troubleshooting or the repair of any Hardware.
Third Party Services means Services or technologies that are not exclusively owned or controlled by InteliCare or involve significant participation by a third party.
You or Your means users of the Application including Residents, family members of Residents and persons or organisations who provide care to Residents.

2 Acceptance and use
(a) By using the Application You agree to be bound by these Terms of Use.
(b) Your use of the Application or any service or content provided through the Application shall be deemed to constitute Your acceptance of these Terms of Use. If You do not agree with these Terms of Use, You must cease using the Application immediately (and remove the Application from Your device).
(c) The Application is provided as a means to help monitor a Resident’s behaviour and in-home activity and receiving notifications if unusual occurrences are detected.
(d) The Application is intended for use by persons aged 18 and over.

3 Term of Services
(a) The Services will commence on the Subscription Start Date and, subject to the continued payment of the Fees, continue for the Subscription Term, unless terminated in accordance with item 14 of these Terms of Use, or as otherwise agreed between the parties.
(b) Subject to the payment of the Fees and the Your compliance with these Terms of Use, InteliCare will provide:
(i) access to the Application; and
(ii) the Services,
during the Subscription Term.
(c) To the extent necessary by Law, You grant InteliCare a non-exclusive, worldwide, royalty-free license to:
(i) collect, host, copy, transmit, display and store; and
(ii) disclose, and provide access,
to the Resident Data as necessary for InteliCare to provide the Services in accordance with these Terms of Use. Except as expressly set out in these Terms of Use, InteliCare does not acquire any right, title or interest in or to any Resident Data.

4 DISCLAIMER
(a) THE SOLUTION IS INTENDED TO SERVE AS A HEALTH AND LIFESTYLE MONITORING TOOL. THE SOLUTION USES SENSORS TO GATHER AND SHARE INFORMATION FROM A RESIDENT’S HOME. IT LEARNS DAILY ROUTINES USING ADVANCED ANALYTICS, THEN DETECTS CHANGES IN BEHAVIOUR WHICH MAY INDICATE DECLINES IN PHYSICAL AND MENTAL WELLBEING. THIS SOLUTION IS NOT INTENDED TO BE USED AS A MEDICAL DEVICE OR PROVIDE HEALTH CARE ADVICE.
(b) NEITHER THE SOLUTION NOR ANY INFORMATION PROVIDED BY THE SOLUTION IS INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL FAMILIAR WITH THE RESIDENT’S UNIQUE MEDICAL HISTORY AND CIRCUMSTANCES.
(c) YOUR USE OF THE SOLUTION IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE APPLICATION.
(d) WE ASSUME NO RESPONSIBILITY OR LIABILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON NOTIFICATIONS OR OTHER INFORMATION RECEIVED VIA THE APPLICATION. WE DO NOT GIVE ANY ASSURANCES, AND WILL NOT BE RESPONSIBLE OR LIABLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, OR TIMELINESS OF THE APPLICATION.

5 Payment
(a) You must provide InteliCare with accurate and complete billing information.
(b) InteliCare will not be liable for any billing errors that occur as a result of You providing inaccurate billing information.
(c) You must pay the Fees to InteliCare in accordance with the payment instructions provided on the relevant invoice issued to You by InteliCare.
(d) You understand, acknowledge and agree that InteliCare may notify You of changes to the Fees at any time by giving You at least 30 calendar days’ notice.

6 Your rights and obligations
(a) You understand, acknowledge and agree that:
(i) it is Your responsibility to evaluate the seriousness of the notifications or alerts received via the Application and take the appropriate action;
(ii) neither the Application nor the associated services are intended as a substitute for medical advice, and the Solution is not intended to be used as a medical device;
(iii) You are solely responsible and liable for all Resident Data uploaded, installed, stored or accessed by You on the Application;
(iv) the Application and associated Services include Third Party Services and You agree to accept and be bound by the additional terms that may apply in respect of such Third Party Services; and
(v) InteliCare may change or update the Application at any time. To continue using the Application, You may need to download and install a new version.
(b) You must:
(i) obtain approval from the Resident for InteliCare to use the Resident Data, if You are not the Resident;
(ii) only use the Application for the Permitted Purpose in accordance with these Terms of Use and not for any other purpose;
(iii) ensure that You do not share your Application log in identifications, account names or passwords with any other persons, and that You keep them secure and confidential;
(iv) ensure that all devices used to access the Application have up to date anti-virus software installed and operating; and
(v) comply with any applicable laws and regulations relating to downloading content or applications, used or supported by the Application.
(c) You may request that InteliCare carry out a modification or enhancement or supply other consultancy services. If you do so, then the work will be carried out under a separate professional services agreement to be agreed with You at the relevant time, however InteliCare is under no obligation to agree to perform such work.
(d) In relation to InteliCare’s Intellectual Property Rights, You shall not, nor allow on your behalf, any agent or third party to:
(i) infringe or use the Application in a way which will infringe InteliCare’s Intellectual Property Rights in any way in the Application;
(ii) remove any intellectual property ownership or management information appearing in any part of the Hardware or Application;
(iii) use the Application directly or indirectly in any way that is unlawful, or could damage, disable, overburden, impair or compromise the Application, or in any manner inconsistent with these Terms of Use;
(iv) use the Application directly or indirectly for any activity or upload, store or transmit any data or information, or which prevents any other user from accessing, using or enjoying the Application;
(v) modify, copy, republish, frame, distribute, communicate, disable, interfere with or make any unauthorised use of any aspect of the Application (other than in the ordinary course of the operation or use of the Application), or security device or protocol provided by InteliCare;
(vi) modify, translate, adapt, decompile, disassemble, or otherwise reverse engineer or create derivative works based on any aspect of the Application or determine any source code, algorithms, methods or techniques used or embodied in the Application;
(vii) copy ideas, features, functions or graphics of the Application for use in another product or service;
(viii) provide any type of similar service to, or use the Application on behalf of or for the benefit of, any third party (including health care provider or application service provider, unless expressly agreed in writing by InteliCare) or by way of trade or otherwise in any similar such manner;
(ix) attempt to gain unauthorised access to the Application data or information or any part thereof, or use another person’s name, registration account, log in identification or password, other than in accordance with these Terms of Use and for data connected to the Permitted Purpose;
(x) knowingly introduce or transmit any malicious code or other disabling feature to or from the Application; or
(xi) remove, disable or modify any security, anti-virus or other software on the Application.

7 InteliCare’s rights and obligations
(a) InteliCare must:
(i) keep You informed in advance of any new modifications, intended or planned which it has in development or Service which it intends to replace or discontinue and the likely time-scale for introduction, replacement or discontinuation of the same; and
(ii) notify You as soon as reasonably practicable if a provider of Third Party Services terminates or suspends supply, or materially changes or ceases to support a Third Party Service which impacts on InteliCare’s ability to provide the Services to You.
(b) InteliCare may at any time during the Subscription Term:
(i) release additional functionality in the form of separate modules and InteliCare may make such available to You at an additional charge to be agreed with You. InteliCare shall at its sole discretion decide what constitutes a separate module and whether to make such available to You;
(ii) monitor and measure access to and use of the Application and Services by You for the purposes of ensuring compliance with the terms of this Agreement and technical efficiency of the Hardware, the Application and its associated Services;
(iii) access and otherwise use the Resident Data to deliver the Solution and the associated Services, for research, and product development purposes;
(iv) report to other parties on usage levels and metrics, provided such reports are on an aggregated and de-identified basis, and does not identify You or the Resident or disclose the Resident Data in a non-aggregated or identified basis; and
(v) release Resident Data to Third Party Services where InteliCare has procured that those Third Party Services have equivalent privacy protection in place and only to the extent the release is required to permit InteliCare to undertake actions which are permitted under with these Terms of Use.

8 Your warranties and undertakings
(a) By using the Application, You warrant that You have obtained the Resident’s express consent for the collection of their Personal Information (including sensitive information) and have all other necessary permissions and consents from the Resident to enable InteliCare to provide Services.
(b) By using the Application, You undertake that You will:
(i) provide a record of all Resident approvals and consents if InteliCare requires You to do so;
(ii) comply with InteliCare’s reasonable instructions and guidelines relating to the input of the Resident Data and security requirements from time to time; and
(iii) keep Your (or the Resident’s) Personal Information secure by maintaining the confidentiality of any password and accounts used on the Application.

9 InteliCare’s warranties and undertakings
(a) InteliCare warrants that it has all necessary rights, licenses and permissions required to supply the Application and the Services to You in accordance with the terms of these Terms of Use.
(b) InteliCare undertakes to:
(i) provide the Services to You during the Subscription Term with all reasonable care and skill;
(ii) take reasonable steps to ensure that the Resident Data remains logically separate from any data of a third person; and
(iii) not itself access or use, or permit third parties to access or use, the Resident Data, except to the extent required to perform its obligations under these Terms of Use or at Law, or as otherwise agreed in writing with You.
(c) InteliCare does not warrant:
(i) that any of the Solution, the Hardware, the Application and its associated Services will meet any particular requirements or that their operation will be entirely error-free or that all defects are capable of correction or improvement; or
(ii) the reliability of third party products. Where InteliCare supplies third party hardware, InteliCare will pass on to the Customer the benefit of any third party warranty which will usually be supplied by a third party manufacturer as specified in the documentation provided with the third party products.
(d) Subject to any implied term, condition or warranty imposed by the Competition and Consumer Act 2010 (Cth) as amended and/or under similar State legislation, all other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded.

10 Intellectual Property and Resident data
(a) You understand, acknowledge and agree that:
(i) InteliCare owns or controls all rights, title and interest, including all Intellectual Property Rights, in and to the Application and the Services and that You have no right, title or interest in, or licence to use, such Intellectual Property Rights, except as expressly set out in these Terms of Use;
(ii) the documentation prepared by InteliCare in relation to the Services is the valuable property of InteliCare and shall be treated as confidential;
(iii) nothing contained in the Application or in these Terms of Use shall be construed as granting any licence or right to use any of the InteliCare Marks. Any unauthorised use of the InteliCare Marks by You is strictly prohibited; and
(iv) neither these Terms of Use nor any licence or sub-licence granted under these Terms of Use shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Application or the InteliCare marks to You or any third party.
(b) You must notify InteliCare immediately at [email protected]:
(i) if You become aware of or suspect any unauthorised use of Your Application account or any problems with the security of the data or the Application by any individual or other internet user or any other breach of the Application’s security;
(ii) of any actual, threatened or suspected infringement of InteliCare’s Intellectual Property Rights; or
(iii) of any claim by any third party that the Services infringe any Intellectual Property Rights of any third party, and You must take such reasonable action as InteliCare may direct at the expense of InteliCare in relation to such infringement.
(c) You must not cause or permit anything which may damage or endanger InteliCare’s Intellectual Property Rights or InteliCare’s title to them or assist or allow others to do so.

11 Limitation of liability
(a) You understand, acknowledge and agree that:
(i) nothing in this Agreement excludes, restricts or modifies any condition, guarantee or warranty that is implied in respect of this Agreement by the Competition and Consumer Act 2010 (Cth) or any other consumer protection legislation and which cannot be lawfully excluded, restricted or modified. Where such a condition, guarantee or warranty is implied (is breached by InteliCare), InteliCare’s sole liability will be limited to (as InteliCare may determine):
(A) in relation to Hardware, replacing or repairing the Hardware or paying the costs of having the Hardware replaced or repaired; and
(B) in relation to Application and its associated Services, cancelling the Services and having any unused portion of the Application Subscription refunded.
(ii) the Application is not designed or guaranteed to prevent any Loss or injury. If, notwithstanding the terms of these Terms of Use, there should arise any liability on the part of InteliCare as a result of any cause whatsoever (whether in contract, negligence, personal injury, breach of statutory duty or under any indemnity or otherwise), regardless of whether or not such Loss was caused by or contributed to by InteliCare’s negligence to any degree or failure to perform any obligation or strict products liability, any liability is limited to the amount equal to the fees paid the Customer for the supply of the Application.
(iii) in no event will InteliCare be liable for any damages resulting from loss of data or use, lost profits, Loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission by You or any Resident whether such damages were reasonably foreseeable or actually foreseen.
(iv) InteliCare’s maximum liability to You or any Resident under these Terms of Use or otherwise for any cause whatsoever (whether in the form of a refund, the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the lesser of:
(A) the sum for which InteliCare carries comprehensive insurance cover (subject to InteliCare actually recovering such sum from the insurer); or
(B) a sum equivalent to the price paid to InteliCare under this Agreement for the Hardware or Services that are the subject of the Customer’s claim.
(v) all liability that is not expressly assumed in these Terms of Use is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.
(vi) the Solution and the Services depend on access to the internet and GPS technology to operate. InteliCare cannot guarantee the availability of internet or GPS technology. Where internet or GPS connectivity is lost, the Service may be degraded or unavailable.
(vii) the Application may contain links to other sites. InteliCare is not responsible or liable for third party content or information, and does not warrant the accuracy, currency or suitability of that information for any purpose.
(viii) no data transmission over the internet can be guaranteed as totally secure.
(ix) any information that You transmit to InteliCare is transmitted at Your own risk.
(x) InteliCare cannot ensure the security of any information which You transmit to us.
(xi) InteliCare will not be responsible, liable or held to be in breach of these Terms of Use for any failure to perform its obligations under these Terms of Use or otherwise, to the extent that such failure is directly attributable to You failing to comply with you obligations under these Terms of Use, or negligence or misconduct by You, a Resident, or a third party.
(b) Both parties understand, acknowledge and agree that the limitations and exclusions of liability set out in this clause are reasonable and have been agreed taking into account the commercial value of these Terms of Use to each party and the commercial standing of each party.

12 Consumer protection, support and maintenance
(a) If with 24 months from the purchase of the Hardware the Hardware is defective, You must contact InteliCare explaining the fault and providing related evidence to [email protected].
(b) InteliCare will repair the Hardware or provide a replacement of the defective Hardware within 15 calendar days of receipt of Your notification of defect if the Hardware is defective within 24 months from the purchase of the Hardware. This warranty does not limit the benefits available to You under any other law.
(c) The Services come with guarantees that cannot be excluded under the Competition and Consumer Act 2010 (Cth) . For major failures with the Service, You are entitled to cancel the Services and receive a refund for the unused portion of the Services.
(d) Subject to the terms of these Terms of Use and unless otherwise agreed in writing with You InteliCare shall provide Support and Maintenance to You during the Normal Support Hours in respect of the Services during the Term, at no additional charge.
(e) In respect of hardware Support and Maintenance, InteliCare must:
(i) respond to Your problems raised by You in accordance with the provisions set out in these Terms of Use. If a problem is due to a software fault, InteliCare shall use its reasonable endeavours to correct the software fault; and
(ii) promptly notify and make available to You all new releases.
(f) If You are not the Resident:
(i) upon reasonable request, You shall ensure that InteliCare’s support personnel are provided with the appropriate approvals, access information and remote electronic access, via internet link if necessary, for investigating or rectifying reported problems; and
(ii) InteliCare shall not be obliged to continue to provide support and maintenance services in respect of the relevant problem if You cannot provide or obtain such approvals.
(g) InteliCare shall be under no obligation to provide Support and Maintenance services to You in respect of:
(i) problems resulting from any modifications or customisation of the Services not made by or authorised in writing by InteliCare;
(ii) incorrect or unauthorised use of the Services or operator error where these are defined as use or operation not in accordance with the documentation;
(iii) any fault relating to communication interruptions where the communications service does not form part of the Services;
(iv) any programs used in conjunction with the Services;
(v) use of the elements of the Services in any combination other than those specified in the documentation; and
(vi) use of the Services with any other software or products that InteliCare has not expressly authorised in writing to be used.

13 Indemnity
(a) You indemnify and hold harmless InteliCare, and its respective officers, employees, agents and contractors (the those indemnified) from and gains any claim or loss which those indemnified pay, suffer or incur or are liable for arising out of or in connection with:
(i) any breach of these Terms of Use;
(ii) the death or personal injury of any person;
(iii) the loss of, or damage to, any property;
(iv) any breach of law or infringement of a third party’s rights;
(v) any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation; and
(vi) to the extent caused or contributed to by any act or omission by You.

14 Termination
(a) InteliCare may terminate Your Application Subscription immediately on notice to You if:
(i) You commit any material breach and does not remedy the same (if capable of remedy) within 30 calendar days of being notified of such breach;
(ii) our invoices for the Fees remain unpaid for more than 30 calendar days from the date of the invoice as set out in clause 5(d); or
(iii) a provider of a Third Party Service suspends or terminates all or part of a Third Party Service. InteliCare will provide as much prior notice to You as is practicable in the circumstances.
(b) You may terminate the Application Subscriptions at any time by giving InteliCare 14 calendar days’ notice.
(c) On termination of Your Application Subscription, You must pay any outstanding invoices within 5 calendar days.

15 General
(a) (Notice) InteliCare may provide You with notices in connection with these Terms of Use by posting such notices on the Application or, where appropriate, by email or mail if you have provided contact details for that purpose.
(b) (Contact details) Any questions or complaints regarding the Application should be directed to: [email protected].
(c) (Assignment and novation) InteliCare may assign or novate these Terms of Use to any other person on written notice to You. You must not assign, novate or sub-license any of Your rights or obligations under these Terms of Use to any person without our prior written consent. Any purported dealing in breach of this prohibition is void and of no effect.
(d) (Severability) In the event that any part of these Terms of Use is void, voidable, illegal or otherwise unenforceable, it may be severed and the remaining provisions of these Terms of Use will remain in full force and effect.
(e) (Governing law) The terms of this Application will be governed by and construed in accordance with the laws in force in Western Australia, and You unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia.
(i) Although Australian Applications may be accessed outside of Australia, we make no representation that the content complies with the laws of any other country. If You access the Application from outside Australia, You are solely responsible for ensuring compliance with Your local laws and for any reliance on our Application content.