BILLY TERMS AND CONDITIONS
These Terms and Conditions of Business (“Terms”) explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
These Terms apply to all products and services provided by us, including (a) hubs and sensors (“Hardware“), (b) preconfigured, installable and downloadable software and applications (“Software”), and (c) automated reporting of data (“Reporting Services”) (collectively, “Billy System“), as specified in your Order Confirmation (as defined below) and to your use of each of them.
These Terms are binding on any use of the Software, Hardware or Reporting Services of Billy Care Pty Ltd ACN 605 788 510 (“us, we, our or Billy Care”) and apply to you from the earlier of (a) acceptance of an Order Confirmation (as defined below) by us and you (including electronic execution), or (b) the time that Billy Care provides you with access to the Software or any Hardware or Reporting Services.
If you are agreeing to these terms as an individual “you” refers to you individually. If you are agreeing to these terms as a representative of an entity, you represent that you have the authority to bind that entity and “you” refers to that entity.
These Terms were last updated on 30 April 2019.
1. USE AND ORDERING OF SOFTWARE, HARDWARE AND REPORTING SERVICES
Ordering Directly. You can order the Billy System by requesting an order online or over the telephone . You must be over 18 years of age to be the primary account holder. We will send you an order confirmation (“Order Confirmation”) to indicate our acceptance of your sales order. The Order Confirmation incorporates these Terms.
App downloads. You can download our Software (including updates) through the Apple iTunes App Store or Google Pay (Android). If you download Software through the Apple iTunes App Store or Google Play (Android), you are bound by Apple and Google Play terms and conditions of sale (respectively).
Administration. You must nominate your contacts and their contact details in your account with us. You will be able to authorize one or more people within your user account, and to use the Software. You accept responsibility for the actions of each person that you authorize or enable to operate your user account, or to use the Software. The person whose health and wellbeing will be monitored (“Senior“) must consent to third parties (“Nominated Contacts“) receiving insights and alerts from us as we monitor the Senior’s health and wellbeing and detect changes in the Senior’s patterns of behaviour. Permission to invite a Nominated Contact is at the Senior’s discretion, while permission to invite other Nominated Contacts will be at the discretion of the Senior and/or the primary account holder (if a different person). Where you are the primary account holder for the Senior, that Senior and all other Nominated Contacts are your “users” under these Terms.
Software. We grant you a non-exclusive and non-transferable license (with no right to sublicense) to install and use the Software for the Term. We will replace or restore access to any Software that is or becomes defective in the course of normal usage at no cost to you.
You acknowledge that Billy Care’s Software is continuously evolving, with regular Updates (as defined below) made available. Billy Care may from time to time update or add or remove features and functionalities.
Hardware. Subject to your Order Confirmation, we will provide Hardware that is pre-configured with the necessary Software for smooth deployment. We will repair or replace any Hardware that is or becomes defective in the course of normal usage, within the first 12 months from the date of purchase, at no cost to you. Hardware that is damaged or lost outside of normal usage can be replaced or repaired at your expense.
Reporting Services. Subject to the provisions of these Terms, we will provide you with the Reporting Services supported by the Billy System.In providing the Reporting Services you acknowledge that:
a. We do not provide fall detection services or emergency response services.
b. We do not view or monitor accounts, and cannot provide this service for you or any other customer.
c. We may offer different plans and promotional offers from time to time, on terms that are different to these Terms.
You acknowledge that the Senior must at all times have a smartphone and internet connectivity to use the Hardware and Software and receive Reporting Services.
Samsung account required
You authorise us to create a Samsung account with Samsung Electronics Co., Ltd. and/or its Subsidiaries (collectively, “Samsung“) on your behalf. You also consent to be bound by and comply with Samsung’s terms and conditions of membership, which can be viewed at https://account.samsung.com/membership/terms/termscontents. We have entered into a commercial arrangement with Samsung but are not related parties. Further information about creating a Samsung account can be viewed at https://www.samsung.com/au/support/mobile-devices/how-to-create-a-samsung-account/. You must maintain an active Samsung account at all times during the term. You acknowledge that (i) you use Samsung services at your sole risk and expense, (ii) you must comply with any terms and conditions imposed by Samsung when using Samsung services, (iii) we are not responsible for any issues relating to transactions between you and Samsung or any other party.
2. YOUR OBLIGATIONS
Acceptable use. You agree to only use the Software, Hardware or Reporting Services to track or monitor the whereabouts or activity of persons who consent to such tracking or monitoring by you. You agree not to use the Software, Hardware or Reporting Services in such a way that is unlawful, harassing, abusive, tortious, threatening, harmful or invasive of another person’s privacy.
Restrictions. You shall be solely responsible for your actions and the actions of your users while using the Software and the Hardware. Unless expressly stated otherwise in these Terms or your Order Confirmation:
a. you and your users must not license, sub-license, reproduce, modify, create derivative works of, sell, exploit, rent, lease, transfer, assign, distribute or disclose the Software or the Hardware or any part of them;
b. you and your users must not modify, reverse engineer, disassemble, decompile, reverse compile, attempt to extract the source code or otherwise try to access, overload, interfere with, reproduce or otherwise harm the operation of the Software or the Hardware;
c. you and your users must not modify, attack, disrupt, circumvent or otherwise interfere with or harm any software, security technology, encryption measures or other material used by us to provide or control access to the Software or the Hardware; and
d. you must not directly or indirectly assist or permit any other person to do any of these things.
Supply of Billy System. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
1. to cancel your service contract with us; and
2. to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service. Subject to the foregoing and the law generally we warrant that (i) the Hardware and Software shall be free from defects in material and workmanship, (ii) the Hardware and Software shall perform materially in accordance with the requirements and specifications agreed in these Terms and any Order Confirmation, (iii) the Reporting Services will be provided with reasonable care and skill, and (iv) except as otherwise provided in these Terms, the functionality of the Software will not be materially decreased during the Term. For any breach of any such warranty, subject to the foregoing your exclusive remedy shall be the repair, re-supply of the Software or the Hardware, or a refund of a reasonable amount of Fees to compensate you, at our option. This warranty does not cover any defects or damage to the Hardware or the Software caused by the fact that they have been subject to improper installation, unauthorized repair, accident, misuse, improper storage, rough handling, abuse or modification by you or any third party. All other warranties or conditions which are not guaranteed by the Australian Consumer Law or the Competition and Consumer Regulations 2010 are expressly excluded were permitted.
No warranty as to accuracy of information, etc. We make no warranty or guarantee as to the accuracy or timeliness of the information that transmitted via the Software, Hardware or Reporting Services. Billy Care assumes no liability for death, injury, loss or damage howsoever caused as a result of inaccurate, incomplete or corrupt information being transmitted via the Software, Hardware or Reporting Services. You hereby acknowledge this and agree to assume sole responsibility for checking the accuracy of such information and putting in place adequate and effective safeguards against the risk of death, injury, loss or harm that could be caused by the inaccuracy of such information.
Capacity, etc. By requesting to use or using the Software, Hardware or Reporting Services you acknowledge, represent and warrant that (a) you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Software, Hardware or Reporting Services, and (b) that you have the legal power and capacity to enter into these Terms.
Confidentiality. Except to the extent permitted or required by these Terms, each party must not use or disclose any of the other party’s Confidential Information. You acknowledge and agree that we may use your Confidential Information for the purpose of performing our obligations to you under these Terms or as otherwise permitted by these Terms. Each party may also disclose Confidential Information when required to do so by law or any regulatory authority, and to its representatives whose duties reasonably require such disclosure, provided the disclosure is made on a confidential basis to the extent possible.
Confidential Information of a party (“Discloser“) means information treated by the Discloser as confidential or which the other party (“Recipient”) knows (or ought to know) is confidential, and which is disclosed by the Discloser to the Recipient, whether before or after the acceptance of these Terms, as well as all notes and other records prepared by the Recipient based on or incorporating that information; but excludes information that: is in or subsequently enters the public domain other than as a result of a breach of confidentiality by the Recipient or any of its permitted disclosees; is lawfully obtained by the Recipient from another person entitled to disclose such information; or is independently developed by the Recipient.
5. INTELLECTUAL PROPERTY RIGHTS
Exclusive property of Billy Care. You agree that any and all Intellectual Property Rights and other proprietary rights that subsist in or arise in connection with the Software, the Documentation or the Reporting Services, including Updates and modifications to any of them, anywhere in the world, are our exclusive property. You have no right in or to the Software, the Documentation or the Reporting Services apart from the rights expressly granted to you by these Terms and any rights granted by law which cannot be excluded by contract with you. We warrant to you that we have the right to grant the licences referred to in these Terms in the Territory.
IPR definition. In these Terms, Intellectual Property Rights means all rights in or to any patent, invention, copyright, work, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.
6. TERM AND TERMINATION
Term. The period for which you are permitted to use the Software, Hardware or Reporting Services shall be as specified in an Order Confirmation (“Term”) and may include a minimum initial term commencing on the date of an Order Confirmation (“Initial Term”) and month by month renewal terms (“Renewal Term”).
Renewal. IMPORTANT NOTICE: AFTER THE INITIAL TERM, AND FOLLOWING THE END OF EACH SUBSEQUENT RENEWAL TERM, UNLESS OTHERWISE SPECIFIED IN AN ORDER CONFIRMATION, THE TERM OF THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR A FURTHER RENEWAL TERM AS SPECIFIED IN THE ORDER CONFIRMATION. IF YOU HAVE PROVIDED US WITH DIRECT DEBIT AUTHORISATION, THE FEES FOR THE RENEWAL TERM WILL AUTOMATICALLY BE DEDUCTED FROM YOUR NOMINATED BANK ACCOUNT OR CREDIT CARD AT THE COMMENCEMENT OF THE RENEWAL TERM. IF YOU DO NOT WANT THE TERM TO AUTOMATICALLY RENEW FOR A FURTHER RENEWAL TERM, YOU MUST NOTIFY US BEFORE THE START OF THE NEXT RENEWAL TERM.
Termination for convenience. Either you or Billy Care may decide to discontinue your use of the Billy System at any time, by providing Notice to the other party.. If your use of the Billy System is discontinued under this clause, we will provide the Reporting Services for the remainder of the Renewal Term and you will not be charged at the next Renewal Term. You will not be entitled to any reimbursement for the current Renewal Term.
Suspension or termination for cause. We may suspend or terminate your access to the Software, Hardware or Reporting Services without notice to you if we reasonably believe that you or any of your users have (a) used any of the Software, Hardware or Reporting Services in a manner that is incompatible with the Acceptable use of these Terms.; (b) infringed our Intellectual Property Rights; or (c) you are in breach of the Payment Terms. Any suspension or termination pursuant to this clause will not entitle you to any refund, credit or right to terminate these Terms.
Other consequences of termination. The accrued rights of each party are not affected by the termination or expiration of the Term for any reason, and clauses 2, 4, 5, 6, 7, 8 and 9 will survive the ending or termination of the Term.
Usage fees. Your Order Confirmation and any relevant Enterprise Agreement Proposal will set out the fees and other charges payable by you for use of Software and in respect of any Reporting Services (“Fees”). Fees payable, including but not limited to monthly subscription fees, are subject to change upon 30 days’ notice from us, unless otherwise stated in an applicable Enterprise Agreement or Order Confirmation. Unless otherwise specified in your Order Confirmation, the Fees payable are exclusive of fees for technical support.
Stripe account required. You authorise us to create a Stripe account with Stripe Payments Australia Pty Ltd A.C.N. 160 180 343 or one of its affiliates (collectively, “Stripe“) at: https://stripe.com/au/ on your behalf. Stripe is a third party payment processing provider and is not affiliated with us. You must maintain an active Stripe account at all times during the term. You acknowledge that (i) you use Stripe services at your sole risk and expense, (ii) you must comply with any terms and conditions imposed by Stripe when using Stripe services, (iii) we are not responsible for any issues relating to transactions between you and Stripe or any other party, including any erroneous or invalid transactions processed with your Stripe account, (iv) you are responsible for ensuring that any transaction processed using your Stripe account are processed correctly, (v) you must not process any unauthorised transactions through your Stripe account, including using unauthorised or stolen credit cards.
Payment terms. You agree to pay all Fees in accordance with these Terms and any Order Confirmation. Fees are billed monthly in advance in AUD, unless otherwise specified in your Order Confirmation. If no payment terms are specified in an Order Confirmation, the Fees must be paid within 30 days from the date of receipt of an applicable invoice. Except as expressly provided in these Terms or in any Order Confirmation, and to the extent permitted by law, all Fees and any other amounts paid or payable under these Terms or any Order Confirmation are non-refundable, non-cancellable and not subject to any credits. For the avoidance of doubt, no refunds or credits will be provided for unused access to the Software.
Direct debit. If you have authorised us to direct debit your Fees from your Stripe account, your Fees for the Software, Hardware and up to three months’ of Reporting Services will automatically be deducted from your nominated Stripe account on the date(s) specified in your Order Confirmation and thereafter in accordance with clause 6 for any Renewal Term.
Insufficient funds. Should your Fee payment to us fail on the specified billing date for whatever reason, we will make the following attempts to charge your nominated Stripe account at the following intervals: (a) 3 days after first failed attempt; (b) 5 days after second failed attempt; and (c) 7 days after third failed attempt. If we are unsuccessful in procuring payment after 3 attempts, we will suspend or cancel your access to paid features of the Software or Reporting Services without notice to you. Any suspension or cancellation pursuant to this clause will not entitle you to any refund, credit or right to terminate these Terms, and you remain liable to us for all unpaid amounts.
Sales tax. All Fees payable under these Terms are inclusive of any sales tax, value added tax or goods and services tax (“Sales Tax”) that is payable on any supply made under these Terms by us to you.
Disclaimer. We are not liable for death, injury, loss or damage associated with your use of the Software, Hardware or Reporting Services. You agree to hold Billy Care harmless from any and all expenses, costs and damages in respect of any claims for bodily injury, death or other damage arising out of use of the Software, Hardware or Reporting Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BILLY CARE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
LIABILITY CAP. TO THE EXTENT PERMITTED BY LAW, OUR CUMULATIVE LIABILITY TO YOU IN RESPECT OF ALL CLAIMS MADE BY YOU UNDER OR IN CONNECTION WITH THESE TERMS, WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY YOU TO US FOR SOFTWARE, HARDWARE AND REPORTING SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
NO CONSEQUENTIAL LOSS LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, LOSS ARISING FROM INTERRUPTION TO BUSINESS, LOSS OF GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, MISREPRESENTATION OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CONTRIBUTION. A party’s liability to the other party is reduced to the extent (if any) that the other party (or, in your case, any of your users) caused or contributed to the relevant loss.
Definition of Claim. In these Terms, Claim means claim, cause of action, suit, proceedings, judgment, debt, fine, penalty, damage, loss, cost, expense or liability of any kind.
Force majeure. Neither party shall be responsible for failure or delay of performance of an obligation if caused by (i) an act of war, terror, hostility or sabotage, (ii) an act of God, flood, fire or earthquake, (iii) electrical, Internet, or telecommunication outage or any other problem that is not caused by the obligated party, (iv) government restrictions (including the denial or cancellation of any license), or any other event outside the reasonable control of the party with that obligation (“Force Majeure Events”). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than thirty (30) days, either party may terminate the Term upon written notice.
Notices. Any notice or communication given to a party under these Terms is only given if it is either (i) delivered or posted to the party at its address and marked for the attention of the relevant individual, or (ii) sent by email to the party at its email address, or (iii) provided orally over the telephone. You agree that we will send you information relating to your account in either electronic or paper format, at our discretion.
Entire agreement. These Terms (and any documents or web links incorporated by reference) are the entire agreement between us and you regarding the Software, Hardware and Reporting Services and supersede all prior agreements, discussions, and representations regarding the subject matter hereof.
Severability. If any provision of these Terms shall be deemed invalid, illegal, void or for any reason unenforceable, that provision shall be deemed to be severable and shall not affect the validity or enforceability of any other provision.
No assignment. You may not, whether by merger, acquisition, sale of assets, operation of law, or otherwise, assign your rights or delegate your obligations under these Terms without our prior written consent.
Amendment must be in writing. An amendment of these Terms by you may only be agreed in writing signed by us.
No waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
Governing law. These Terms and the rights and obligations of the parties to and under these Terms shall be governed by the exclusive jurisdiction of the State of Victoria, Australia. Any disputes arising out of or in connection with these Terms, shall be heard in or in the courts of Victoria, Australia if the laws of the State of Victoria, Australia apply, and the parties hereby consent to the exclusive jurisdiction and venue in such courts.
Survival. The following provisions will survive any termination or expiration of the Term: confidentiality, intellectual property rights, fees, liability, and general.
Other interpretation provisions. If there is any inconsistency between these Terms and an Order Confirmation or Annexures to an Order Confirmation, an Order Confirmation takes precedence, these Terms take second precedence and the Annexures take third precedence to the extent of any inconsistency.