Any use of and access to the website, Care Diary mobile applications, and any other services offered (collectively, “services”) by Care Diary (as defined below) is conditioned upon such user’s acceptance of and compliance with these terms and conditions, as amended from time to time, as well as all exhibits, order forms, and incorporated policies (collectively, “terms”).
By (1) electronically clicking and accepting these terms, (2) setting up a Care Diary account or Care Diary profile referencing these terms, (3) executing an order form referencing these terms, or (4) otherwise using the services (each a “commencement event”), all users agree to follow and be bound by the terms. These terms apply to the provision and use of the services at all times (including during any free trial).
If a user is entering into these terms on behalf of or as an agent, employee, or representative of a company or legal entity, the user represents and warrants that the user has the right, power, and authority to bind the company or legal entity to these terms. If a user does not have such authority, or if the user does not agree to these terms, such user must decline and may not access or use the services. The services are not available to persons who are not legally eligible to be bound by these terms.
In these Terms, a “User” or “you” means any individual who accesses or uses the Services. Care Diary offers a software solution for NDIS service providers on an “as is” software as a service basis. Subject to strict compliance with these Terms, Care Diary provides a User with a personal, revocable, non-exclusive, non-assignable, non-transferable, limited license to access and use the Services for the User’s internal business purposes only. If the User orders Services through a quote, invoice, online enrollment page, or other order forms (each an “Order Form”), the Order Form may contain additional terms and conditions regarding the particular Services that you are ordering, and such additional terms and conditions of the Order Form shall be incorporated into these Terms. To the extent there is any conflict between the terms and conditions of an Order Form and these Terms, the Order Form shall take precedence.
Accounts & Account Information
Upon the User’s request, Care Diary may open an account for a User. Once opened, such an account will then be the sole responsibility of the User, and Care Diary is not responsible or liable for the account or any results of Care Diary’s compliance with directions provided by the User in setting up the account. User affirms that User is at least 18 years of age, a natural person, and otherwise fully competent to enter into and comply with these Terms. To access and use the Services, Users may be required to provide information about themselves, including, but not limited to, a full legal name, email address, and phone number (“Account Information”). All Users agree to provide accurate and complete Account Information and to keep this information up-to-date.
Cancellation of Accounts
Care Diary may, in its sole discretion, with or without notice, cancel or suspend a User’s account or refuse to provide Services to any User, and retain fees previously paid by User, when applicable, if: (a) any User does not comply with these Terms (including failing to make any payment by due date); (b) Care Diary receives a judicial, regulatory, or other governmental order or law enforcement request that expressly or by reasonable implication requires Care Diary to do so; (c) User’s continued use would subject Care Diary to third party liability or a security threat; (d) User’s continued use of the Services places Care Diary at risk of non-compliance with applicable laws or other legal or contractual obligations to which it is subject; or (e) Care Diary ceases making the Services generally available to third parties.
The user may only cancel the User’s account by making a written request to email@example.com and any Fees paid to Care Diary are non-refundable. If the User elects to cancel the User’s account, the cancellation will not become effective unless and until all Fees owed to Care Diary in connection with the User’s account are paid in full. Care Diary has no obligation to retain any content, information, Personal Data (as defined below), Account Information, or other data uploaded, transmitted, produced, or displayed by a User in using the Services or stored via the Services (collectively, “User Data”) following the cancellation of an account by the User or Care Diary, and Care Diary is not liable for any loss or damage following or resulting from termination of User’s account, including, but not limited to, the deletion of any User Data or any inability to access the same. It is solely the User’s responsibility to ensure that any User Data that a User requires the following termination is backed up or replicated before cancellation.
Care Diary may, in its sole discretion, without prior notice, update or modify features or components of the Services (including adding new features and/ or functionality) which will then be subject to these Terms. Such updates may be provided via the Services which are downloaded and installed automatically, or which the User may be required to upload and install. Updates must only be obtained from Care Diary, and the User agrees to receive, and timely install, such updates.
All fees for Services (“Fees”) are charged on a monthly or annual basis (as provided by Care Diary) with invoices payable at the time of order placement or on the date specified on the invoice unless otherwise communicated by Care Diary in writing. Care Diary may, at its discretion, issue either: (i) a single invoice for all Services under these Terms, or (ii) multiple invoices for specific Services under these Terms. Disputes as to invoices must be accompanied by detailed supporting information and are deemed waived if not raised within fourteen (14) calendar days following the invoice date. Care Diary reserves the right to correct any inaccurate invoices. Any corrected invoice must be paid by the original invoice payment due date or the issuance date of the corrected invoice, whichever is later.
All Fees are strictly non-refundable, including for partial months of Services as well as upgrades downgrades, unused, or cancelled Services. All Fees payable by the User shall be paid in full without any set-off, counterclaim, restriction, or condition and free and clear of any tax or other deductions or withholdings of any nature. Fees do not include applicable taxes, including, but not limited to, any applicable import, customs, or other duties or tariffs all of which are the User’s responsibility (excluding taxes on Care Diary’s income) and payable in addition to the full Fees invoiced by Care Diary.
Depending on the selected account and payment frequency, the User may be required to pay Fees by providing a valid credit card number to Care Diary’s third-party payment processor (the “Payment Processor”). By submitting credit card information to the Payment Processor, the User authorizes and consents to the Payment Processor’s processing of Fees, and any other Personal Data provided to the Payment Processor. If the user selects to pay Fees by credit card through Payment Processor, future invoices will be automatically charged to the credit card provided on the due date. To cancel auto-payments, please contact firstname.lastname@example.org.
If the User is delinquent in payment to Care Diary, Care Diary may at its option: (a) cancel or suspend the User’s account and/or refuse to provide Services to any User until the delinquent amounts and late charges, if any, are paid; (b) assess late charges on delinquent amounts at the lower of 1.5% per month or the maximum rate permitted by law, for each full or partial month; (c) recover all costs of collection, including but not limited to reasonable attorneys’ fees; (d) combine any of the above rights and remedies as may be permitted by applicable law. These remedies are in addition to those available at law or in equity. Care Diary may re-evaluate the User’s credit standing by conducting a credit check at any time and modifying or withdrawing the User’s ability to pay by credit card.
If the User requests Care Diary to provide the Services to any additional User(s), Care Diary may do so (in its sole discretion) and the Fees for additional Users, and/or additional Services shall be payable on a pro-rata basis for the remainder of the User’s current billing cycle and in full thereafter. Care Diary may, through Payment Processor, charge such additional Fees to a User’s credit card, if one is associated with the User’s account. Care Diary may change its Fees at any time, in Care Diary’s sole discretion, by updating the Fees listed on its website and providing Users with fourteen (14) days prior notice. For an existing User, this change will become effective at the start of the User’s next billing cycle. Care Diary is not liable to Users or any third party for any change in its monthly and annual plan Fees. Care Diary has no obligation to provide Services for which the User has not paid.
If a user is carrying out any offered free trial of the Services, the free trial will begin on the day that the User’s account is opened and end 14 days later. As soon as the trial period expires, Care Diary may immediately terminate the User’s access to the Services, unless the user chooses to subscribe to the Services or open a non-trial account. An invoice will automatically become rendered for the Services on the expiry of the trial period for active Users. Notwithstanding the foregoing, Care Diary may modify or terminate the User’s right to use trial accounts at any time and for any reason in its sole discretion, without liability to the User.
Term & Service Start
These Terms are effective on the date of a Commencement Event and shall remain in force until either Care Diary or User terminates User’s access to the Services unless otherwise stated in an Order Form.
For all User accounts, the start date for Services is the date specified on the Order Form or, if no date is specified, the date the invoice for Services is issued by Care Diary (“Invoice Issuance Date”). Users have immediate access to the Services as of the Invoice Issuance Date by creating or accessing their Care Diary account via the app.carediary.com.au website. If a User has paid Fees for a setup, the User will receive an invite from Care Diary to complete a setup questionnaire on or before the Invoice Issuance Date. It is the User’s responsibility to complete the setup questionnaire. The Services’ start date will remain aligned to the date specified on the Order Form or the Invoice Issuance Date, as applicable, irrespective of the User’s failure or delay in completing the setup questionnaire.
Services are provided “as is”
The services are provided on an “as is” and “as available” basis, and the use of the services is at your sole risk. Except as otherwise expressly set forth in these terms, the services and support are provided with no warranties or representations of any kind, whether express, implied or statutory. To the maximum extent permitted by law, Care Diary expressly disclaims all warranties and representations including merchantability and fitness for purpose. Care Diary does not warrant that the services or any information obtained therefrom will be available, uninterrupted, timely, secure, accurate, complete, or error-free, or that the services will meet the user’s specific requirements. Care Diary is not responsible or liable for any failure of the services. The client agrees and acknowledges that Care Diary is not responsible or liable for any claims or injury of any kind arising out of or related to your reliance on information contained within or transmitted through the services.
You acknowledge that Care Diary may use third-party suppliers and service providers to provide the necessary hardware, software, networking, connectivity, storage, support, and related technology services required to provide the Services. The acts and omissions of those third parties may be outside of Care Diary's control, and Care Diary shall not be liable for any loss or damage suffered as a result of any act or omission of any third party.
To the maximum extent permitted by law, Care Diary shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary loss or damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Care Diary has been advised of the possibility of such damages). Care Diary's maximum cumulative and aggregate liability under or in connection with the Services and these Terms shall be limited to direct damages in an amount equal to the Fees paid to Care Diary by the User for the 3-month period immediately preceding the assertion of any claim. All claims that a party may have against Care Diary shall be aggregated and multiple claims shall not enlarge the foregoing limit.
Reference to Your use of Care Diary
From time to time, Care Diary may refer to you as a customer on the carediary.com.au website. If you do not wish for your use to be disclosed on the website, please let Care Diary know and Care Diary will remove the reference.
No Illegal or Malicious Use
User must comply with all laws and regulations applicable to User’s use of the Services and User Data, including, but not limited to, data privacy or localization, anti-bribery, and export control laws (i.e., export to embargoed, prohibited, or access by prohibited, denied, or designated persons), and User’s rights to use the Services is subject to such compliance. No User may use the Services for any illegal or unauthorized purpose, and no User may upload or produce any information or content that is in breach of or otherwise infringes any confidentiality obligation or is (or has the potential to be) defamatory, fraudulent, misleading, obscene, pornographic, dangerous, or otherwise unlawful or tortious.
Users may only access the Services through the interface provided by Care Diary and must not use the Services for any malicious means, or to abuse, harass, threaten, intimidate, or impersonate any other User of the Services. User must not use, must not assist others to use, and must ensure any of its authorized Users do not use the Services for purposes of, or in connection with: (i) making alterations to the Services; (ii) reverse engineering, making machine code human readable, or creating derivative works or improvements; (iii) interfering with the security, integrity, availability, or operation (including probing, scanning or testing the vulnerability of any security measures or misrepresenting transmission sources) of the Services or of any services, systems, or networks provided by any of Care Diary’s third party service providers; (iv) creating, benchmarking, or gathering intelligence for a competitive offering; (v) infringing another’s intellectual property or other proprietary rights; (vi) employing the Services in hazardous environments requiring fail-safe performance where failure could lead directly or indirectly to personal injury or death or property or environmental damage; or (vii) any use that would reasonably be expected to cause liability or harm to Care Diary or Care Diary’s customers or breach the Terms. Care Diary has the right, but not the responsibility, to monitor usage. If the User becomes aware of any violation of these Terms in connection with the use of the Services, please contact Care Diary immediately.
To the fullest extent permitted by law, User agrees to defend, indemnify, and hold harmless Care Diary, its affiliates, members, shareholders, directors, officers, licensors, employees, and subcontractors from and against all third-party claims and resulting losses, damages, awards, liability, actions, proceedings, demands, costs and expenses (including reasonable legal costs) arising out of or relating to (i) Users’ use of the Services, (ii) Users’ breach of these Terms, (iii) Care Diary’s possession, processing, or use of User Data in accordance with this Agreement, or (iv) any allegation that User Data (including Personal Data) and any derivative works thereof infringe the intellectual property rights or any other rights of Care Diary or any third party.
User agrees that Care Diary or its licensors own all rights, titles, and interests, including all intellectual property rights, proprietary rights, and moral rights, throughout the world, in and to the Services, including, but not limited to, any software made available to User, and all derivative works, modifications and improvements thereto (collectively, “Care Diary IP”), and that these Terms do not transfer to User any rights in the Care Diary IP, all of such rights are retained by Care Diary or its licensors and are Care Diary or its licensor’s Confidential Information.
Care Diary claims no intellectual property rights in relation to the User Data uploaded by the User in using the Services. However, User agrees that Care Diary shall own all intellectual property rights that are: (i) developed through processing or analyzing User Data (excluding User Data itself but including data derived from User’s use of the Services); or (ii) generated through support, monitoring, or other observation of Users’ use of the Services. Further, the User agrees, by uploading the User Data, the User grants Care Diary, its affiliates, and other members of the global network of Care Diary businesses the right to access and use the User Data as necessary to provide, maintain, improve, or support the Services or as necessary to comply with applicable laws. The operation and performance of the Services are Care Diary’s Confidential Information. If User provides any suggestions, comments, or feedback regarding the Services, the User hereby assigns to Care Diary all right, title, and interest in and to the same without restriction. Users shall not remove, modify, or obscure any intellectual property rights notices on the Services.
User agrees that User is responsible and liable for all activity that results from or relates to (i) User’s use of the Services, and, (ii) all information and content (including User Data) uploaded, transferred, produced, or otherwise used by, on behalf of, or at the request of User. User represents and warrants that User has the right to upload the User Data to Care Diary and that such use does not violate or infringe upon any rights of a third party. Users have sole responsibility for obtaining all consents and permissions (including providing notices to Users or third parties) and satisfying all requirements necessary to permit Care Diary’s use of User Data in accordance with these Terms. User is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup User Data. Although Care Diary has no responsibility to monitor User Data, Care Diary reserves the right to delete User Data, with or without notice to User, if such User Data violates these Terms or any law, if required by governmental authorities, to avoid or limit liability to Care Diary or third parties, or to protect the security of our systems.
Care Diary Branding
No User may publish or use Care Diary’s brand, trademark, or logos except with Care Diary’s prior written consent.
Some elements of the Services will require the User’s equipment and networks to meet certain technical levels (“System Requirements”). Care Diary takes no responsibility for problems associated with or arising from an inability to access, receive, or use the Services due to equipment, network, or internet speed not meeting the System Requirements.
Technical Support & Malfunctions
Care DIary will use commercially reasonable efforts to maintain, support, and promptly address (during normal business hours) technical issues that arise in connection with the Services. Maintenance and support excludes Integration Services or other third-party device or application set up unless stated in an applicable Order Form. However, Care DIary will not be responsible or liable for any issues, problems, unavailability, delay, security incidents, loss, or damage arising from or related to: (i) conditions or events reasonably outside of Care DIary's control; (ii) a cyberattack; (iii) the public internet and communications networks; (iv) data, software, hardware, services, telecommunications, infrastructure or networking equipment not provided by Care DIary or acts or omissions of third parties retained by User; (v) User’s negligence or failure to use the latest version of the Services or follow published documentation; (vi) modifications or alterations not made by Care DIary; (vii) loss or corruption of data; (viii) unauthorized access via User’s credentials; or (ix) User’s failure to use commercially reasonable administrative, physical and technical safeguards to protect User’s systems or data or to follow industry-standard security practices. Each User agrees that Care DIary's support team may access their account from time to time in order to diagnose and fix problems when required as part of a support ticket raised by a User or as otherwise required to maintain and provide the Services.
Account Security & Privacy
Users are responsible for maintaining the security of their accounts, usernames, Hardware, and passwords. In operating a User’s account, Users must: (i) maintain strict confidentiality of usernames, passwords, or other credentials; (ii) not sell, transfer, sublicense, or otherwise allow others to use their usernames, passwords, or other credentials or access their account; and (iii) immediately notify Care Diary of any unauthorized use or breach of security related to a User’s account. Care Diary will not be liable and User is solely responsible for any loss, damage, costs, or liabilities that may result from any failure by any User to keep User’s account, username, or password secure; however, Care Diary may use rights management features (e.g., lockout) to prevent unauthorized use of the Services.
Care Diary will use commercially reasonable administrative, physical, and technical safeguards to protect User Data and follow industry-standard security practices.
Each User agrees in relation to the Confidential Information of Care Diary to: (a) protect the Confidential Information using the same degree of care, but no less than reasonable care, as the User uses to protect User’s own Confidential Information, (b) use the Confidential Information solely for the purposes of complying with User’s obligations and exercising User’s rights under these Terms; (c) disclose the Confidential Information to its affiliates, employees, and service providers, who are bound to substantially similar obligations of confidentiality and have a need to know, solely to the extent necessary for User to comply with its obligations and exercise its rights under these Terms; and (d) not disclose the Confidential Information or allow it to be disclosed to any third party, without Care Diary’s written request, except as required by law, regulation, rule, Court order or government or regulatory authority (provided the User provides prior notice to Care Diary and reasonable opportunity to contest or limit disclosure, unless legally prohibited from giving notice). Each User will be responsible for any breaches of the confidentiality obligations by its affiliates, employees, or service providers.
Changes to these Terms and Conditions of Use
We may occasionally update these Terms and Conditions of Use. When we do, we will revise the “last updated” date below and take such additional steps as may be required by law.
Last updated: 25 July 2022
Effective date: 25 July 2022