Terms of Service
Effective: 25 May 2018 for EU citizens & 10 June 2018 for non-EU citizens.
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Welcome to CareMonkey!
Thanks for using our products and services (“Services”).
- If you Sign-Up in Australia, Asia, Africa or Europe, Services are provided by the Company:
CareMonkey Pty Ltd
Located 25 Gwynne St Cremorne VIC, 3121, Australia. ABN 74 166 391 993
- If you Sign-Up in the Americas, Services are provided by the Company:
Located 4181 NW 1ST AVE, Suite 6-1289, Boca Raton, FL 33431
By using our Services, you are agreeing to these Terms of Service, and must follow any policy made available to you within the Services. Please read them carefully.
We’ve tried to keep our Terms of Service as simple as possible, but if you are not familiar with terms like eForms, Care Profile and Authorised Supervisors, then read about these in our Definitions first.
CareMonkey is an online and mobile platform for Forms, Medical Records, and Field Trips.
Services for All Users
A CareMonkey User (“User”) is any individual with a CareMonkey Account (username and password) who can legally complete/respond to forms on behalf of themselves, or somebody they are legally responsible for (e.g. their child). We help Users manage eForms, receive communications and respond to eForms requested by Organisations where they and/or the persons they are legally responsible for are a Member (e.g. their child’s school or club).
- Users are notified by email and/or SMS and/or push notification when an eForm has been sent, and can view communications and eForms within CareMonkey;
- Users can respond to eForms, make payments, and/or provide signed consent on behalf of themselves, or somebody they are legally responsible for;
- Users can create a Care Profile for themselves, or somebody they are legally responsible for; The Care Profile may include a Medical form with a photo, emergency contacts, medical conditions and personalised care instructions;
- Users can share their Care Profile with other Users, or with one or more Organisations. When a User shares a Care Profile with an Organisation, the Care Profile becomes part of that Organisation’s Member records;
- The User can export their data and/or permanently delete their CareMonkey Account at anytime.
All Users are subject to the User Terms of Service. Users include parents, legal guardians and any Adult User (including an Organisation’s Staff Members, Authorised Supervisors, and Administrators which are given privileges by that Organisation’s CareMonkey Administrator (“Admin”)).
If a User is given privileges by an Organisation (Administrator and/or Authorised Supervisor access) then that User is also subject to the Customer Terms of Service.
Services for Paying Customers
We help paying Customers (Organisations such as schools, clubs, sports teams and businesses) efficiently manage the secure collection of completed eForms from Users, and provide secure access to completed eForms to the relevant Authorised Supervisors and Admins. For example, a teacher may have access to student medical forms on a camp so they know what to do, who to call, and what to tell paramedics in an emergency.
Organisations use our Services to allow CareMonkey Administrators (“Admins”) to:
- Add and organise Members (e.g. students, staff) into Groups (e.g. classes, teams);
- Add additional information about Members (e.g. contact information, photos, notes and attachments);
- Send email, SMS and in-app communications to Users legally responsible for Members;
- Design, send and collect custom eForms requesting information, payments and/or signed consent from Users (e.g. permission to attend an excursion or field trip);
- Collect Medical eForms that include emergency information about Members (contacts, medical conditions, personalised care instructions) from Users;
- Set and send automated reminders to Users confirming Member information is accurate and up-to-date;
- Manage and reconcile consents and communications with and from Users;
- Run pre-built reports on their Members, eForms, Excursions and other activities; and
- Grant Authorised Supervisors (e.g teachers, coaches, supervising staff) secure access to Member information in Groups and eForms (including emergency information in the Medical eForm).
Organisations use our Services to enable Authorised Supervisors to:
- View emergency information and completed eForms for Members they are responsible for via a browser, or the CareMonkey Mobile App (which also provides offline access);
- Add additional information about Members (e.g. log injuries, notes, and mark the roll on excursions for those Members);
- Send Group email, SMS and in-app messages to Users responsible for Members.
This Agreement governs the use of CareMonkey by any User, and limits the liability of the Company to any User. The User agrees and accepts that:
- The User must register an account in CareMonkey to use the Services;
- The User must be a legal Adult (children under age cannot be a User);
- All Care Profiles and eForm responses from the User are controlled by the User, not CareMonkey or the Organisation;
- The User can only input information on behalf of themselves, and on behalf of others if they are legally responsible for that person (e.g. parent of child, legal guardian), or have that individual’s recorded consent;
- To correspond with the User, the Organisation must use the User’s contact information;
- The User may receive emails, text messages, push notifications and other alerts via CareMonkey on behalf of an Organisation and their Authorised Supervisors;
- Some communications are emergent and cannot be opted-out;
- If the User shares a Care Profile with an Organisation or Individual User, they authorise CareMonkey to provide access to the Medical Form (which may include personal health information) to that Organisation or Individual;
- The User agrees that when it provides any consent, authority or agreement via CareMonkey, it does so as an electronic transaction and warrants that such transaction shall be binding on the party unless and until revoked by the User;
- The User agrees an Organisation may rely on a consent made via CareMonkey without any need to further verify the veracity of that consent;
- If the User responds to an eForm (e.g. a media consent form, or excursion permission form), that eForm response becomes the property of the Organisation, and may include a snapshot of the Care Profile/Medical Form at the time the eForm was submitted. This means the User still controls their responses, however only the Organisation can delete the eForm responses;
- The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
- Any information shared by a User with an authorised Organisation may be retained by the Organisation for the purposes of updating/maintaining their administrative records, and/or for compliance purposes;
- If the User shares a Care Profile with an Organisation, that Organisation may have its own policies governing access to this information and the use of CareMonkey by its Staff Members.
- If the User is granted additional permissions by an Organisation (e.g. access as an Admin or Authorised Supervisor), the User is also subject to the Customer Terms of Service.
- The User’s license to access CareMonkey shall be ongoing until terminated by User. The User can terminate the Agreement by deleting their CareMonkey Account.
Customer Terms of Service
Any person who registers an Organisation in CareMonkey warrants that he or she is an authorised representative of that Organisation, with the requisite authority to bind the Organisation to this Agreement.
This Agreement governs the use of CareMonkey by any Customer (“Organisation”), and limits the liability of the Company to any Customer. The Customer agrees and accepts that:
- It shall only use CareMonkey for its intended purpose (Services) as set out in this Agreement;
- The Organisation is the data controller and is responsible for any information they collect, store and access via CareMonkey. The Company is the data processor and allows the Organisation (via the Organisation’s Admin or Authorised Supervisors) to perform various actions as the data controller using the Services;
- CareMonkey does not guarantee the validity of any electronic transaction (e.g. responses to eForms);
- All communications sent to Users via CareMonkey is on behalf of the Organisation, and will use the Organisation’s name (and logo if supplied);
- The Organisation is responsible for granting and removing Admin permissions to any Users;
- The Organisation is responsible for granting and removing Authorised Supervisor access to their Members, and will only grant access when needed to fulfil their role or duty of care obligations;
- It shall not disclose any information about an Individual to any other person or party, other than to Authorised Supervisors and the User who rightfully manages the Member eForm responses;
- The Organisation shall not store or record any Health Information via CareMonkey unless it is fully compliant with that Organisation’s relevant regulations and privacy laws (e.g. Privacy Act 1989 Cth in Australia, Data Protection Act 1988 and GDPR in the UK);
- It shall ensure all personal information accessed through CareMonkey is kept and used in accordance with that Organisation’s relevant regulations and privacy laws;
- It shall comply with all anti-SPAM legislation in its jurisdiction;
- The Organisation will not use CareMonkey to make profiling-based decisions based on racial or ethnic data, religion or beliefs, political opinions, sexual orientation or union memberships;
- Subject to written approval from the Organisation, it grants CareMonkey a royalty free licence to use any logos in any form, media or technology for the purpose of promoting or marketing CareMonkey; and
- It is solely responsible for the use of the Member information uploaded or input into CareMonkey by any Admin or Authorised Supervisor.
License, Fees and Termination
- The Organisation’s licence to use CareMonkey, as provided for in the General Conditions, is subject to the payment of all necessary Fees;
- Fees apply as agreed between the Organisation and the Company as to the use of CareMonkey, and the terms of those Fees are set out in the General Conditions;
- The Organisation’s license to access CareMonkey shall be ongoing until terminated by the Organisation in accordance with this Agreement;
- Either party may end this Agreement at any time by 30 days’ written notice to the other party;
- Where a Fee is paid for a particular term of access to CareMonkey, the Customer shall not be entitled to a pro-rata refund of any Fees (e.g. if Customer elects to stop using CareMonkey within that term, or reduces the number of Users it requires); and
- If the Company terminates this Agreement without cause, it shall provide a pro-rata refund for any fees paid in advance.
Third Party Information and Services
The User and Customer acknowledges that the Services:
- Are dependent on third-party services, including but not limited to banks, credit card providers, payment gateways, BPAY and telecommunications services;
- May provide links to third party websites where the Company does not control the content; and
- Allows Organisations to provide links to third party websites where the Company does not control the content.
Limitation of Liability
The User and Customer agrees that the Company shall not be responsible or liable in any way for:
- Communications (e.g. emails, SMS, push notifications) or requests (eForms and Medical Forms) sent via CareMonkey on behalf of the Organisation;
- Any authorised access to data in CareMonkey (by the User or Organisation). The Company accepts no liability for the access to User Content by Users authorised by the User or Organisation;
- Any access to CareMonkey by an Individual using login details of a User given to the Individual by the User;
- Incorrect data. It is the Individuals responsibility to provide accurate and truthful personal information. The Company accepts no liability for information provided by Users or Customers.
- Interruptions to the availability of CareMonkey due to third-party services; and
- Information contained on any linked third party websites.
The Company may limit or restrict access to CareMonkey from time-to-time as it sees fit, including (but not limited to):
- Users: The Company may restrict access if users do not follow the Terms of Service, Policies and General Conditions;
- Entities: The Company may restrict access only to reputable and/or registered Organisations, or if an Organisation does not follow the Terms of Service, Policies and General Conditions;
- Location: The Company may restrict access to CareMonkey to certain jurisdictions where it is able to offer CareMonkey.
The Terms and Conditions in this Agreement govern the provision of CareMonkey to the User and/or Customer by the Company.
Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise;
- The singular includes the plural and the opposite also applies.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning;
- A reference to a clause refers to the clauses in this Agreement.
- A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
- A reference to a party to this Agreement or another agreement or document includes that party’s successor and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
CareMonkey Pty Ltd
Governing Law: Victoria, Australia
Reference City: Melbourne
Governing Law: Delaware, USA
Reference City: Dover
This Agreement is governed by the laws of the above States. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Your CareMonkey Account
- You need a CareMonkey Account in order to use CareMonkey as a User, or an Authorised Supervisor or Admin on behalf of an Organisation.
- To protect your CareMonkey Account, keep your password confidential. You are responsible for the activity that happens on or through your CareMonkey Account. Try not to reuse your CareMonkey password on third-party applications. If you learn of any unauthorised use of your password or CareMonkey account, change your password following these instructions.
- This Agreement applies to use of and access to CareMonkey;
- Where the User does not accept any Terms and Conditions of this Agreement, the User must immediately cease using CareMonkey, and/or delete their Account;
- This Agreement may be updated from time-to-time by the Company at its absolute discretion, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of CareMonkey at the User’s next login after the User receives written notice of the update(s).
The CareMonkey product
- CareMonkey is the product described in the section of this Agreement “Our Services”.
- CareMonkey is only accessible to the User as stated in the terms set out in the section of this Agreement “User Terms of Service”.
- CareMonkey is only accessible to the Customer (Organisation) as stated in the terms set out in the section of this Agreement “Customer Terms of Service”.
- The User agrees and accepts that CareMonkey is:
- Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company services and is not available ‘locally’ from the User’s system; and
- Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to CareMonkey is available to the User or Customer unless expressly agreed in writing, or accessed by the Customer using the CareMonkey API.
- As a hosted and managed service, the company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter CareMonkey.
- The company shall not exercise its right under the clause (above) in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of CareMonkey to the User, other than in accordance with the terms of the Agreement.
- By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use CareMonkey for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
- The Company may issue the license to the User with further terms or limitations (including the number of Users it can manage, or volume of use or transactions) as it sees fit.
- The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or Customer. The Company will ordinarily advise the User of any suspension or revocation, however, it is under no obligation to do so.
Use for Purpose
- The User agrees that it shall only use CareMonkey for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in any way that is deemed unreasonable by the Company in its discretion.
Users and Security
- The User is solely responsible for the security of its username and password for access to CareMonkey.
- The User shall notify the Company as soon as it becomes aware of any unauthorised access of its CareMonkey Account.
Kids and CareMonkey
- Among other things, Organisations use the Services to collect medical and consent information from Adult Users to deliver on their duty of care obligations.
- Children under their country’s legal adult age require a parent/guardian to give consent on their behalf. Therefore all an Organisation’s members must be managed by Adult users only.
- The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
- Despite the clause immediately above, the Company shall be authorised to permanently delete Organisation Content where outstanding Fees remain unpaid in accordance with the section of this Agreement “Customer Terms of Service – License, Fees and Termination”, subject to the Company first providing seven (7) Business Days’ notice of its intention to do so.
- The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it. The User is responsible for which other Users or Organisations it shares information with.
- The Organisation is responsible for the accuracy, quality and legality of Organisation Content (including Members, Groups and eForms) and the Organisation’s acquisition of it. The Organisation is responsible for which Users it assigns Admin and Authorised Supervisor permissions.
- The Company shall not access, use, modify or otherwise deal with User Content except where required by the compulsion of law or upon the User’s authority (such as to provide support for CareMonkey).
- The Company makes no warranty as to the suitability of CareMonkey in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether CareMonkey is appropriate for the Organisation’s circumstances.
- The Organisation agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
- The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
- The Company shall maintain all Fees for the term of the licence paid for by the Organisation.
- The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organisation’s licence.
- The Company may revoke or suspend the Customer’s license to access CareMonkey for unpaid Fees without liability.
- Where the Company:
- Is required to perform any services for the Customer outside of what is set out in this Agreement or otherwise in writing; and
- Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
- The Customer agrees that the Company shall be entitled to charge the Customer an additional amount that is reasonable for the service performed.
- The currency of transactions will be documented in any quotations and/or orders.
- GST is applicable to any Fees charged by the Company to Customers within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide an Australian Customer with a Tax Invoice for its payment.
- No refunds of Fees are offered other than as specified in this Agreement or as required by law.
Invoicing and Payments
- The Company shall issue an Australian Customer a Tax Invoice for all Fees for which GST applies.
- The terms of payment set out in the Fees shall apply.
- Should the Customer dispute an Invoice, the Customer must notify the Company of the disputed item within 5 Business Days of the date of the Invoice. The Customer must pay the amount of the Invoice not in dispute within the prescribed payment period.
- Overdue Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
- The Customer authorises the Company to use the Customer’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the Customer’s payment history.
The Company takes the privacy of Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them. CareMonkey’s security policy can be found at https://www.caremonkey.com/security-2/
The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
The Company may limit the amount of data that the User stores in CareMonkey, and shall advise the User of such. Data that is stored with CareMonkey shall be stored according to accepted industry standards.
The Company shall perform backups of CareMonkey in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
- By accepting the terms of this Agreement the User and/or Customer agrees that the Company shall provide access to CareMonkey to the best of its abilities, however:
- Access to CareMonkey may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to CareMonkey.
- Customers can prepare Authorised Supervisors for unscheduled unavailability of CareMonkey by:
- Keeping their CareMonkey Mobile App up to date, which will store local copies of the data that the Authorised Supervisor is permitted to access; and
- Printing hard copies of reports.
- Trademarks. The Company has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of CareMonkey.
- The CareMonkey Application. The User agrees and accepts that CareMonkey is the Intellectual Property of the Company and the User further warrants that by using CareMonkey the User will not:
- Copy CareMonkey or the Services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in CareMonkey or any documentation associated with it.
- Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to CareMonkey.
- The information and classes of information set out in the General Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
- Each party acknowledges and agrees that:
- The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
- It owes an obligation of confidence to the Discloser concerning the Confidential Information;
- It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
- All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
- Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
- A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
- Any actual, suspected, likely or threatened breach outlined in this Agreement;
- Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
- Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
- The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
- Any actual, suspected, likely or threatened breach of a term of this Agreement; or
- Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
Liability and Indemnity
The User and/or Customer agrees that:
- They use CareMonkey at their own risk.
- They acknowledge that CareMonkey does not provide medical advice, nor does it hold itself out to provide medical advice.
- They had reasonable opportunity to obtain legal advice on this Agreement.
- They acknowledge that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
- They indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of the User’s or Customer’s breach of these Terms or infringement of any law.
- In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use CareMonkey or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
- Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States, Territories or Countries and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
Modifying our Services
- We are constantly updating and improving our services, which means we may add or remove functionalities or features.
Breach of Agreement
- Where a party is in breach of this Agreement, the other party may issue a written notice (Breach of Agreement Notice) requiring the party in breach to remedy the breach. Such notice must set out:
- The nature of the Breach of Agreement;
- The provisions of the Agreement that are alleged to have been breached;
- A reasonable timeframe to remedy the breach of agreement in no less than 10 Business Days; and
- The action required to remedy the breach of agreement.
- Where a party issues a compliant Breach of Agreement Notice, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach of Agreement Notice. Failure to respond in writing setting out:
- The steps taken to remedy the breach of agreement; or
- Why the party believes it is not in breach as put forward in the Breach of Agreement Notice,
- Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
- Failure to remedy a breach set out in a Breach of Agreement Notice shall be a material breach of this Agreement (Material Breach).
- User Termination. You can stop using our Services at any time by deleting your Account, although we’ll be sorry to see you go. CareMonkey may also stop providing Services to you, or add or create new limits to our Services at any time.
- We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service.
- Breach of Agreement. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
- Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
- Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- Is insolvent within the meaning of section 95A of the Corporations Act;
- Fails to comply with a statutory demand unless:
- The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
- The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
- Has an administrator appointed in respect of it;
- Has a controller or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
- Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
- Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
- Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
- Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
- The rights and obligations under the relevant provisions of the following clauses survive termination of this Agreement: Limitation of Liability, Users and Security, Data Ownership, Privacy, Fees, Invoicing and Payments, Intellectual Property, Confidentiality, Liability and Indemnity, Breach of Agreement, Termination, Disputes, Force Majeure, Electronic Communication, amendment and assignment.
All disputes shall be handled in accordance with the Company’s dispute resolution policy which is:
- Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
- Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
- Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation, either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators of Australia or equivalent in the USA. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or equivalent in the USA, or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia or equivalent in the USA; and
- Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the above Negotiation, Mediation and Arbitration procedures in this clause, unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
- Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party;
- Act of God, lightning, storm, flood, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions;
- Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
- The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
- Embargo, in ability to obtain necessary materials, equipment or facilities, or power or water shortage.
- If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
- Specify the obligations and the extent to which it cannot perform those obligations;
- Fully describe the event of Force Majeure;
- Estimate the time during which the Force Majeure will continue; and
- Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
- Following a notice of Force Majeure and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
- The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
- The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
- The term of this Agreement will not be extended by the period of Force Majeure.
Electronic Communication, amendment and assignment
- The words in the clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
- The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
- The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
- A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
- Notices must be sent to the parties’ most recent known contact details.
- The User may not assign or otherwise create an interest in this Agreement.
- The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
- Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
- Prevalence. To the extent that the User Terms of Service and/or Customer Terms of Service are inconsistent with the General Conditions, the terms of the User Terms of Service and/or Customer Terms of Service will prevail. To the extent that the Special Terms are inconsistent with the Terms of Service, the Special Conditions will prevail.
- Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
- Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
- Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
About these Terms
- We may modify these terms or any additional terms that apply to a Service, for example, to reflect changes to the law or changes to our Services. You should look at these terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of CareMonkey.
- If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
- These terms control the relationship between the Company and you. They do not create any third party beneficiary rights.
- If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
- If it turns out that a particular term is not enforceable, this will not affect any other terms.
END GENERAL CONDITIONS
Key Definitions and Interpretation
The following definitions apply in this document
- ABN means Australian Business Number.
- Admin means a User with Administrator permissions for an Organisation’s Account in CareMonkey. The Admin can manage CareMonkey on behalf of the Organisation and perform actions including add/edit/remove Members, Groups, eForms and assigned Authorised Supervisors.
- Adult means a person that has reached the legal age of majority (generally over the age of 18).
- Agreement means these Terms of Service.
- Authorised Supervisor means a Staff Member (e.g. a teacher, coach, or staff supervisor) that is given additional permission by the Admin to access specific Groups and eForms, and the Members they are responsible for. Authorised Supervisors can access Member emergency information, and among other things, send group messages to Users (via email, SMS and push notifications), log notes and injuries, and mark the roll on excursions via CareMonkey.
- Browser web storage enables websites to store data in a browser on a device. When used in “local storage” mode, it enables data to be stored across sessions (for example, so that the data is retrievable even after the browser has been closed and reopened).
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City.
- CareMonkey means the CareMonkey product or services:
- Web application accessible from http://caremonkey.com; and/or
- The CareMonkey Mobile App available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
- CareMonkey Account means the User has registered an account to use CareMonkey and has a Username and Password.
- CareMonkey Mobile App means the mobile app available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
- Care Profile means a User controlled profile about an Individual the User is responsible for (e.g. themselves, their child). The Care Profile may include information such as the Individuals photo and contact details, emergency and medical contacts, medical conditions, medications and other personalised care instructions, and any attachments (such as allergy and asthma action plans). When a User shares a Care Profile with an Organisation, the Care Profile becomes part of that Organisation’s Member records;
- Child means a legal minor (generally under the age of 18).
- Company means:
- If the User signs-up in Australia, Asia, Africa or Europe:
CareMonkey Pty Ltd
ABN 74 166 391 993
Located 25 Gwynne St Cremorne VIC, 3121, Australia.
- Or if the User signs-up in the Americas:
Located 4181 NW 1ST AVE, Suite 6-1289, Boca Raton, FL 33431.
- Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
- All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
- All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
- All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
- All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
- The party’s policies and procedures; and
- All information contained in this document;
- And excludes information that the other party can establish is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence;
- Or is in the public domain other than by a breach of this document or any obligations of confidence.
- Cookies and similar technologies. A cookie is a small file containing a string of characters that is sent to your computer when you visit a website. When you visit the website again, the cookie allows that site to recognise your browser. Cookies may store user preferences and other information. You can reset your browser to refuse all cookies or to indicate when a cookie is being sent. However, some website features or services may not function properly without cookies. Other technologies are used for similar purposes as a cookie on other platforms where cookies are not available or applicable, such as the Advertising ID available on Android mobile devices. See Cookies Policy.
- Corporations Act means the Corporations Act 2001 (Cth).
- Customer means a paying customer Organisation.
- Device means a computer that can be used to access CareMonkey Services. The device could be a desktop, tablet or smartphone.
- eForm means an electronic form that the User can complete.
- Fees means the fees and changes as set out in the Customer Terms of Service.
- General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
- GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Health Information means any medical conditions, medications, personal care instructions (e.g. allergy or asthma action plan), disabilities, other health information (e.g. blood type, if they object to transfusions, etc), emergency information (including emergency and medical contacts), and any past or present injuries about an Individual.
- IP Address means the number known as an Internet protocol (IP) address, which is assigned to every device connected to the internet. These numbers are usually assigned in the geographic blocks. An IP address can often be used to identify the location from which a device is connecting to the internet.
- Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
- Individual means an Adult or Child.
- Individual User means a CareMonkey User
- Moral Rights means;
- Moral rights pursuant to the Copyright Act 1967 (Cth);
- Or any rights analogous to the rights set out in the Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
- Organisation means a CareMonkey Customer with Administration access that is (without limitation) a school, childcare centre, club, company, institution, agency or other organised or incorporated body.
- Personal information means personably identifiable information, or sensitive personal information, as used in information security and privacy laws. Personal information may includes health information and information which personally identifies an individual, such as their name, photo, address (physical and email), phone number, and billing information.
- Pixel tag means a type of technology placed on a website or within the body of an email for the purpose of tracking activity on websites, or when emails are opened or accessed, and is often used in combination with cookies.
- Pricing means the pricing (also known as Fees) as notified to the Customer in writing by the Company from time-to-time.
- Services means the solution described in the section of this Agreement entitled “Our Services”.
- Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
- Staff Member means any employee, volunteer or other personnel of an Organisation (including teachers, coaches, instructors, etc) that are added as Staff Members in CareMonkey.
- Super-Admin means the Admin who owns the Organisation’s Account in CareMonkey and is the primary contact for CareMonkey. Only the Super-Admin has permissions to delete or close a CareMonkey Service. The Super-Admin cannot be deleted by other Admins.
- User means any Individual that uses CareMonkey and has a CareMonkey Account (with Username and Password):
- This includes parents, legal guardians and any adults User (including an Organisation’s Staff Members, Authorised Supervisors, and Administrators);
- The User must be a legal adult (children under age cannot be a User).
- User Content means data (any information) that is uploaded or input into CareMonkey by the User, or that forms part of the User’s Intellectual Property.