1.       INTRODUCTION

1.1     The Carer’s Notebook App and the Services made available through the Carer’s Notebook App are owned and operated by The Facere Group Pty Ltd (ACN 669 460 360) (Carer’s Notebook, our, us or we).

1.2     By downloading, using, browsing or accessing the Carer’s Notebook App and the Services, you acknowledge that you have read, understood and accept these Carer’s Notebook App User Terms and Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If you do not accept this agreement, you must not access and use the Carer’s Notebook App and the Services.

1.3     In this agreement, you and your means the individual who accesses or uses the Carer’s Notebook App and the Services, and whose details are listed in the Account (and includes anyone acting on your behalf or with your express or implied authority) and where the context permits, means a Collaborator or Primary Account Holder

2.       CARER’S NOTEBOOK APP

2.1     The Carer’s Notebook App is a mobile application that assists users (family members or carers) to manage the personal and healthcare needs of a Dependant and which:

(a)  includes a calendar management appointment system which allows users to diarise and track important dates, tasks and events (such a medical appointments and medication reminders) for the Dependant; and

(b)  allows users to upload, publish, store and edit medical notes, task lists and medical records and information about a Dependant through the Carer’s Notebook App; and

(c)  share medical notes, task lists and medical records and information about a Dependant with Collaborators through the Carer’s Notebook App,

(collectively, the Services). 

• Although we provide you with access to general health and medical information and data through the Carer’s Notebook App and Services, Carer’s Notebook are not medical practitioners or other health care providers, and we are not providing you with medical or healthcare advice or medical services of any kind. The Carer’s Notebook App is a mere online resource and tool for users who wish to organise, store, coordinate and track personal, medical and health-related information (whether uploaded or submitted by you or someone else on your behalf) in the management of day-to-day activities of Dependants with complex and/or multiple needs. Our role in providing you with access and use of the Carer’s Notebook App and the Services should be construed strictly in this context only.

2.3     By downloading, accessing and using the Carer’s Notebook App, we grant you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the Carer’s Notebook App and the Services for the Subscription Term.

2.4     You must only use the Carer’s Notebook App and Services for personal and non-commercial purposes. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.

3.       SUBSCRIPTION TERM

3.1     This agreement will commence on the date you download and access the Carer’s Notebook App (Commencement Date) and shall continue until terminated in accordance with clause 16 (Subscription Term).

4.       REGISTRATION AND ACCESS

4.1     To access and use the Carer’s Notebook App and the Services, you must:

(a)  download the Carer’s Notebook App from the Apple Store; and

(b)  create and setup an account on the Carer’s Notebook App (Account). Your Account will be operated by your choice of your email address or your mobile phone number (User Name) and password (Password). You can change your User Name and Password at any time.

4.2     To setup an Account on the Carer’s Notebook App, you:

(a)  will be required to provide, and keep us up-to-date with, accurate registration information and Personal Information (including your full name, email address and/or mobile phone number). All Personal Information as well as the information you provide to setup your Account is subject to our Privacy Policy; and

(b)  must be over 17 years of age, and legally able to enter into contractual relations. If you are under the age of 17 years, you may only access and use the Carer’s Notebook App and Services if you have your parents’/guardians’ permission to access and use the Carer’s Notebook App and Services. Your continued use of the Account constitutes an acknowledgement by you that you are: (i) over 17 years of age; or (ii) under 17 years of age but have your parents’/guardians’ permission to access and use the Carer’s Notebook App and Services and that your parents/guardians have agreed to abide by this agreement.

4.3     You are responsible for:

(a)  maintaining control over, and the confidentiality of, your Account, User Name and Password;

(b)  keeping your Account registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Carer’s Notebook App or the Services;

(c)  notifying us in writing of any unauthorised access to, or use of, your Account, User Name or Password; and

(d)  for all activities or transactions that occur using your Account. We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your Account, User Name and Password.

5.       YOUR OBLIGATIONS

5.1     When accessing and using the Carer’s Notebook App and the Services, you must at all times:

(a)  obtain and maintain all hardware, software and communications equipment necessary to download, access, and use, the Carer’s Notebook App and the Services;

(b)  comply with all Relevant Laws with respect to your obligations under this agreement;

(c)  comply with all of our directions, policies and guidelines advised in writing to you or as displayed on the Carer’s Notebook App from time to time; and

(d)  respect the privacy rights of your Dependants and comply with Privacy Laws when collecting, store, using or disclosing the Personal Information and Sensitive Information of your Dependants.

5.2     Carer’s Notebook will not be liable to you or anyone else if, for any reason, the Carer’s Notebook App and the Services is unavailable at any time or for any period. From time to time, we may suspend or restrict access to all, or some parts of the Carer’s Notebook App and the Services. You are responsible for making all arrangements necessary for you to download, access and use the Carer’s Notebook App and the Services.

5.3     You must not:

(a)  introduce, access, store, distribute or transmit any viruses, worms, trojans or other malicious code into the Carer’s Notebook IP or any third party service provider’s Intellectual Property Rights;

(b)  copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Carer’s Notebook App, or any other third party software that you may access or use through the Carer’s Notebook App, in any way;

(c)  access all or any part of the Carer’s Notebook App and/or the Services in order to build a product, service or code which competes or reproduces the Carer’s Notebook App and/or the Services (in full or part);

(d)  modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Carer’s Notebook App in any way, or otherwise learn the source code or algorithms underlying the Carer’s Notebook App;

(e)  license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, encumber or otherwise make the Carer’s Notebook App and the Services available to any third party; and

(f)   use the Carer’s Notebook App or the Services for any unlawful purpose or other purpose not authorised by us in writing.

6.       Collaborators

6.1     At any time during the Subscription Term, a Primary Account Holder can invite Collaborators to download, access and use the Carer’s Notebook App and the Services. A Primary Account Holder may invite a Collaborator using the ‘invite Collaborator’ function within the Carer’s Notebook App, which will require you to input the Collaborator’s mobile number or email address into the Carer’s Notebook App. The Collaborator will receive an invitation via text message or email. The invitation will contain a hyperlink to the App Store to download the Carer’s Notebook App and the Collaborator will need to create an Account before they can access and use Carer’s Notebook App.

6.2     If you permit a Collaborator to access and use the Carer’s Notebook App and Services, you (as the Primary Account Holder) will ensure that each Collaborator:

(a)  downloads the Carer’s Notebook App and provides us with basic registration information (including the Collaborator’s full name, email address and/or mobile phone number);

(b)  complies with the terms and conditions of this agreement (to the extent that these terms and conditions apply to the Collaborator);

(c)  only uses the Carer’s Notebook App for the purpose of assisting a Dependant (and not for any unlawful purpose);

(d)  obtain and maintain all hardware, software and communications equipment necessary to download, access, and use, the Carer’s Notebook App and the Services;

• provide Carer’s Notebook with all necessary cooperation in relation to this agreement and all necessary access to such computer systems and data and as may be required by Carer’s Notebook from time to time, in order to provide the Services, including, but not limited to, User Content;

(f)   comply with all Relevant Laws with respect to your obligations under this agreement;

(g)  comply with all of our directions, policies and guidelines advised in writing to you or as displayed on the Carer’s Notebook App from time to time; and

(h)  your Collaborator will not impersonate another user, Collaborator, or provide false identity information to gain access to the Carer’s Notebook App or use the Services.

6.3     You (as the Primary Account Holder) acknowledge that:

(a)  you are responsible for all use of the Services by your Collaborator or any other person, whether or not authorised by you, who accesses the Carer’s Notebook App and Services (directly or indirectly) through use of the username and/or password of a Collaborator;

(b)  Carer’s Notebook is not responsible or liable for any Loss due to misused, stolen or hacked usernames or passwords. A Collaborator can change their username or password at any time, through the Carer’s Notebook App; and

(c)  you control the number of Collaborators that can access and use the Carer’s Notebook App and the Services and you can revoke or change a Collaborator’s access at any time, and for any reason through the Carer’s Notebook App. If there is any dispute between you and a Collaborator regarding access to the Carer’s Notebook App or use of the Services, you have the right to decide what access the Collaborator shall have to the Carer’s Notebook App or Services, if any.

6.4     You (as the Primary Account Holder) can remove a Collaborator ‘s access to a Dependant’s User Content at any time through the Carer’s Notebook App by accessing the Dependant profile and removing the Collaborator’s permissions to access the Dependant’s User Content. This only applies to Collaborators you have invited to access the Dependent’s profile.

6.5     If you are a Collaborator, you cannot invite another Collaborator to download, access and use the Carer’s Notebook App or Services, unless you purchase your own subscription to access and use the Carer’s Notebook App or Services.

7.       USER CONTENT

7.1     When a Primary Account Holder and/or Collaborator create an Account and access the Carer’s Notebook App and/or the Services, the Primary Account Holder and the Collaborator will be required to provide us with User Content (including Personal Information about the Primary Account Holder and the Collaborator and Personal Information and Sensitive Information about a Dependant). The Primary Account Holder will retain ownership of all User Content published, uploaded or submitted by the Primary Account Holder and Collaborator.  The Primary Account Holder and Collaborator will be responsible for the legality, reliability, integrity, accuracy and quality of User Content they publish, post or submit on the Carer’s Notebook App. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Content displayed on the Carer’s Notebook App by you or another user of the Carer’s Notebook App (or any Content or Third Party Products or Services displayed or published on the Carer’s Notebook App by a third party service provider) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Content or Third Party Products or Services displayed on, or via,  the Carer’s Notebook App.  You (and not Carer’s Notebook) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you on, or via, the Carer’s Notebook App.

7.2     You grant Carer’s Notebook a worldwide, non-revocable, non-exclusive, royalty-free and perpetual licence to use, disclose, share, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, your User Data (including Intellectual Property Rights contained therein) for any purpose, including for the purpose of:

(a)  enabling us to provide the Carer’s Notebook App and the Services to you and otherwise perform our obligations and exercising our rights under this agreement;

(b)  informing the user of other products or services that we may offer from time to time or in relation to Third Party Products and Services;

(c)  complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;

(d)  providing, operating, maintaining, or improving the Services, the Carer’s Notebook App, or our other products and services; and

(e)  sharing User Content (excluding the Personal Information or Sensitive Information of a Dependant) with an Affiliate or other third party (with whom we may contract or be affiliated with from time to time) for the purposes of performing or improving the Carer’s Notebook App and/or the Services.

7.3     Carer’s Notebook shall use reasonable endeavours to follow our archiving procedures for User Content in accordance with its standard back-up policy from time to time. In the event of any Loss of User Content, your sole and exclusive remedy shall be for Carer’s Notebook to use reasonable endeavours to restore the User Content, that is lost or damaged, from the latest back-up of User Content, maintained by us.

7.4     We will not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Content caused by our or your acts or omissions or the acts or omissions of other users of the Carer’s Notebook App or any third party.

7.5     You agree to make your own enquiries to verify information, data and Content displayed on, or via, the Carer’s Notebook App (including Third Party Products and Services) and to assess the suitability of any information, data or Content before relying upon such information, data or Content. If you choose to rely upon any information, data or Content displayed or published on, or via, the Carer’s Notebook App and/or the Services (including User Content and Third Party Products and Services) you do so at your own risk. We make no representations or warranties that use of the Content, User Content and Third Party Products and Services will not infringe any third party’s Intellectual Property Rights or a third party’s (including a Dependant’s) privacy rights.

8.       SUBSCRIPTION FEE AND PAYMENT

8.1     We do not charge you a fee to download, access and use the basic features and functions of the Carer’s Notebook App and the Services (Lite CN App). If a Primary Account Holder accesses and uses the Lite CN App you will only be allowed to connect with one Collaborator and one Dependant. However, if a Primary Account Holder wishes to access the advanced or premium features and functions of the Carer’s Notebook App and the Services (which allows you to connect with an unlimited number of Collaborators and Dependants), you must pay the Subscription Fees to us for the Subscription Term (payable on a monthly, bi-annual, quarterly or annual basis in advance in accordance with the Direct Debit Authority) as specified on the Carer’s Notebook App or Website.  

8.2     Collaborators are not required to pay a fee to access and use the Carer’s Notebook App and the Services.

8.3     All Subscription Fees are in Australian Dollars and are inclusive of any goods and services taxes. To the maximum extent permitted by Relevant Laws and except as otherwise contemplated in this agreement, the Subscription Fees and all other amounts owing to Carer’s Notebook under this agreement are non-refundable.

8.4     When setting up your Account, you will be offered payment options to pay the Subscription Fees. Carer’s Notebook may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the Carer’s Notebook App and Services at any time.

8.5     Payment of the Subscription Fees are made by means of direct debit in accordance with the Direct Debt Authority in clause 8. By making payment of the Subscription Fees or any other amount owing to Carer’s Notebook under the agreement, you will provide our Third Party Payment Processors with accurate and complete billing information, and you authorise our Third Party Payment Processors to access your billing information (including Personal Information) for the purpose of processing your payment.

8.6     Carer’s Notebook may increase the Subscription Fee for the provision of the Carer’s Notebook App and the Services at any time on 30 days’ written notice to you. The fee increases will come into effect in the next billing cycle. If you do not agree to these fee increases, you may at any time the terminate the agreement by going to the Apple ID ‘Subscriptions’ page in the ‘Settings’ application on your mobile device, selecting the Carer’s Notebook App and then selecting the ‘Cancel Subscription’ function. Deleting the Carer’s Notebook App from your mobile device before cancelling your subscription does not terminate this agreement. If you continue to use the Carer’s Notebook App and Services after the fee increase has come into effect, you are assumed to have agreed to the fee increase.

9.       DIRECT DEBIT AUTHORITY

9.1     By accepting this agreement, you authorise Apple Pay to arrange for the Subscription Fees or any other amount owing to Carer’s Notebook under this agreement to be debited from your credit card or bank account (as applicable) as and when such fees are due and payable under this agreement (Direct Debit Authority).

9.2     You may cancel or change your Direct Debit Authority by accessing the Apple ID ‘Subscriptions’ page (to cancel your subscription) or the Apple ID ‘Payment & Delivery’ page (to change your payment details) in the ‘Settings’ application on your mobile device before the day on which your next debit is due. If you cancel the Direct Debit Authority, Carer’s Notebook may not be able to provide you with access to, and use of, the advanced or premium features and functions of the Carer’s Notebook and Services (and you will revert back to using the Lite CN App), beyond the current billing cycle, unless you provide Carer’s Notebook with new Direct Debit Authority.

9.3     It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:

(a)  the transaction will be rejected and the payment will be treated as if it were never made;

(b)  your financial institution may charge you a fee and/or interest;

(c)  you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that the Third Party Payment Processor can process the debit.

9.4     It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.

9.5     If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should update your credit card or bank account details by accessing the Apple ID ‘Subscriptions’ page on your mobile device as soon as possible.

10.     INTELLECTUAL PROPERTY

10.1  You acknowledge that Carer’s Notebook, or our licensors, are the owners of the Carer’s Notebook App (and any Intellectual Property Rights contained therein) including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Carer’s Notebook App and the Services (including any modifications, enhancements of the foregoing) (collectively, Carer’s Notebook IP)). Accessing and using the Carer’s Notebook App and the Services does not give you (or anyone else) ownership of, or any right, title or interest in the Carer’s Notebook IP.

10.2  Ownership of any User Content will vest in the Primary Account Holder, but excluding Carer’s Notebook IP.

11.     OUR OBLIGATIONS

11.1  Subject to your compliance with the terms of this agreement, during the Subscription Term Carer’s Notebook shall use reasonable endeavours to provide you with access to and use of the Carer’s Notebook App and the Services.

11.2  The undertaking in clause 10.1 shall not apply in the event of:

(a)  any non-conformance which is caused, or contributed, by use of the Services and the Carer’s Notebook App contrary to our instructions or the terms of this agreement;

(b)  modification or alteration of the Services and the Carer’s Notebook App by any party other than Carer’s Notebook or our duly authorised Personnel;

(c)  the unsuitability or malfunction of the computer hardware or computer software used by you in conjunction with which the Carer’s Notebook App and the Services are used;

(d)  Force Majeure Events; and

(e)  the unsuitability or malfunction of the Services when used in conjunction with any software, apps, applications and tools supplied by a third party provider.

11.3  In the event that Carer’s Notebook fails to provide you with access and use of the Carer’s Notebook App and the Services in accordance with clause 10.1, Carer’s Notebook shall use reasonable endeavours to correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 10.1.

12.     THIRD PARTY PRODUCTS AND SERVICES

12.1  You acknowledge that the Carer’s Notebook App and Services may require you to use or access Third Party Products and Services and that you do so solely at your own risk.

12.2  We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third Party Products and Services.

12.3  We recommend that you refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.

12.4  Carer’s Notebook does not endorse, sponsor or approve any Third Party Products and Services used in conjunction with the Carer’s Notebook App and Services. It is your sole responsibility to determine that specific products or services, meet your needs and are suitable for the purposes for which they are used.

12.5  Any rights you may have to access Third Party Products and Services shall be limited to:

(a)  the extent of Carer’s Notebook’s ability to pass on such rights to you; or

(b)  the relevant third party licensor terms.

13.     NO WARRANTIES

• You acknowledge that Carer’s Notebook are not medical practitioners or health care providers, and we are not providing personal, wellbeing, medical or healthcare advice or services of any kind to you. While User Content created or generated by you, other users of the Carer’s Notebook App or third parties and the Content supplied by us (including Third Party Products and Services made available to you by third party providers) through the Carer’s Notebook App are designed to provide you with general personal, wellbeing, medical and health information, it is not a substitute for professional medical advice, health services or healthcare or wellbeing treatments. Reliance on, and use of, the Content, User Content and Third Party Products and Services is at your own risk.

13.2  To the maximum extent permitted by Relevant Laws, Carer’s Notebook exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Carer’s Notebook App and the Services.

13.3  Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other international, national, State or Territory legislation where to do so is unlawful.

13.4  You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, Carer’s Notebook make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency, validity or security of the Carer’s Notebook App and the Services (or any Content, User Content and Third Party Products and Services generated or made available through the Carer’s Notebook App and Services) and Carer’s Notebook will not be liable if the Carer’s Notebook App or the Services, or becomes unavailable for any reason, including directly, or indirectly as a result of:

(a)  telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

(b)  negligent, malicious, wilful acts or omissions of third parties (including third party service providers) or other users;

(c)  maintenance or repairs carried out by Carer’s Notebook or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the Carer’s Notebook App;

(d)  services provided by third parties (including internet service providers) ceasing or becoming unavailable; or

(e)  a Force Majeure Event.

13.5  You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that:

(a)  your access to, and use of, the Carer’s Notebook App and the Services will be uninterrupted, virus-free or error-free; and/or

(b)  the Carer’s Notebook App and the Services (or any Content, User Content and/or Third Party Products and Services), will be accurate, complete, reliable, current or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.

13.6  You acknowledge that your access to, and use of, the Carer’s Notebook App and Services (including Content, Third Party Products and Services) may be interrupted or unavailable during scheduled or unscheduled maintenance.

14.     LIMITATION OF LIABILITY

14.1  To the maximum extent permitted by Relevant Laws, Carer’s Notebook will not be liable to you, a Collaborator, your Dependants or any third party for:

(a)  any Claims or Losses (including Consequential Loss); or

(b)  loss of, or damage to, any property or any personal injury, illness or death to you, your Dependants or any third person,

arising out of, relating or connected to, the provision or use of the Carer’s Notebook App and Services by you or any Collaborator (including Content, User Content and/or Third Party Products and Services generated or made available through the Carer’s Notebook App or the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

14.2  All risk in using the Carer’s Notebook App and the Services passes to you upon creating an Account, or otherwise using the Carer’s Notebook App and the Services (whichever is earlier). Carer’s Notebook assume no responsibility and we have no liability to you, your Dependants, a Collaborator or anyone else for any use of, or reliance on, any Content, User Content and/or Third Party Products and Services obtained or generated from your access to, and use of, the Carer’s Notebook App and the Services.

14.3  To the maximum extent permitted by Relevant Laws, under no circumstances will Carer’s Notebook’s aggregate liability to you, your Dependants, a Collaborator or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the amount you paid to Carer’s Notebook under this agreement in the one month immediately preceding the date on which the Claim giving rise to such liability arose.

14.4  You agree to defend, indemnify and hold Carer’s Notebook, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims or Losses, that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:

(a)  your or a Collaborator’s access to, and use of, or reliance on the Carer’s Notebook App or the Services (including the Content, User Content and Third Party Products and Services);

(b)  any breach of Carer’s Notebook or any third party’s Intellectual Property Rights or other rights caused by you or a Collaborator;

(c)  any breach of Privacy Laws caused by you or a Collaborator; or

(d)  any breach by you or Collaborator of this agreement.

15.     PRIVACY

15.1  All Personal Information a Primary Account Holder or Collaborator provide to open an Account and any User Content (including the Personal Information and Sensitive Information of a Dependant) you upload, generate, share, or publish on, or via, the Carer’s Notebook App, is subject to Carer’s Notebook’s Privacy Policy, which is incorporated into this agreement. Carer’s Notebook will not share, sell or disclose a Primary Account Holder’s or a Collaborator’s Personal Information or the Personal Information or Sensitive Information of a Dependant to any third party (except we may share the Personal Information and Sensitive Information of a Dependant with your Collaborators).

15.2  You warrant that, in relation to any Personal Information and Sensitive Information comprising User Content or any other information disclosed to us on, or via, the Carer’s Notebook App:

(a)  it has been collected in accordance with Privacy Laws;

(b)  you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Carer’s Notebook App; and

(c)  you have obtained the informed consent of the Dependants (or the guardian or legal representative of the Dependants) who are the subject of such Personal Information and Sensitive Information in order for Carer’s Notebook to use, disclose, store, transfer, process or handle it.

16.     TERMINATION 

16.1  During the Subscription Term a Primary Account Holder may terminate this agreement at any time by going to the Apple ID ‘Subscriptions’ page in the ‘Settings’ application on your mobile device, selecting the Carer’s Notebook App and then selecting the ‘Cancel Subscription’ function. If you delete the Carer’s Notebook App from your mobile device without first cancelling your subscription, you will continue to be charged the Subscription Fees for the Carer’s Notebook App and Services. If you terminate the agreement in accordance with this clause, you will not be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.

16.2  If you are a Collaborator, the agreement can be terminated any time by:

(a)  deleting your Account on the Carer’s Notebook App; or

(b)   a Primary Account Holder uninviting you from the Carer’s Notebook App.

16.3  Carer’s Notebook may terminate the agreement any time (without liability to you except Carer’s Notebook may provide you with a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term) by giving you 14 days’ written notice.

16.4  You agree that Carer’s Notebook may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):

(a)  your Account; and/or

(b)  the Carer’s Notebook App and/or Services;

(c)  any social media pages linked to its business or the Carer’s Notebook App; or

(d)  any other products and services offered on, or via the Carer’s Notebook App (including Third Party Products and Services).

16.5  Cause for such suspension or termination under clause 16.4 may include, but are not limited to:

(a)  any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy) and any other agreements entered into between the parties;

(b)  serious or repeated breaches or violations of Carer’s Notebook or a third party service providers’ Intellectual Property Rights;

(c)  any breach of the privacy rights of your Dependants or any Privacy Laws caused by you;

(d)  your failure to pay the Subscription Fees to access and use the Carer’s Notebook App and Services;

(e)  your activities, conduct or transactions on, or, via, the Carer’s Notebook App, brings, or has the capacity to bring, Carer’s Notebook into disrepute; or

(f)   requests by law enforcement or other government agencies.

16.6  If Carer’s Notebook terminates the agreement in accordance with clauses 16.4 or 16.5, you acknowledge and agree that you are not entitled to pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.

16.7  You agree that all such suspensions or terminations shall be made at Carer’s Notebook’s sole discretion and that we will not be liable to you or any third party for any such suspension or termination.

17.     EFFECT OF TERMINATION

On termination of this agreement for any reason: 

(a)  If you are a Primary Account Holder, your User Content will remain accessible by you through the Carer’s Notebook App, but you will no longer be able to upload, publish, edit or download User Content. However, at any time after the effective date of termination, we may, at our absolute discretion and with or without notice to you, delete your Account and/or User Content or charge you a fee at our prevailing rates at the time to continue to view and access your User Content;

(b)  if you are a Collaborator, your User Content will not remain accessible by you through the Carer’s Notebook App. Your User Content (excluding your registration information) will remain accessible to the Primary Account Holder and will not be deleted until such time as the Primary Account Holder has terminated their Account with us; 

(c)  Carer’s Notebook may be required to retain your Personal Information (including basic registration information) in accordance with documentation retention and destruction laws; and

(d)  all licences to use the Services and the Carer’s Notebook App granted under this agreement will immediately terminate.

18.     FORCE MAJEURE EVENT

18.1  We will not be responsible to you, any Dependant (or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, hacker attacks, denial of service attacks, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).

19.     DISPUTE RESOLUTION

19.1  Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.

19.2  The parties must in good faith attempt to resolve any dispute between them. 

19.3  If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute. 

19.4  Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute. 

20.     UPDATES AND VARIATIONS

20.1  Without notice to you, we may, at our absolute discretion, from time to time:

(a)  change, add or delete the functions, features, performance, or other characteristics of the Carer’s Notebook App; or

(b)  apply or install updates to, or new versions of, the Carer’s Notebook App.

20.2  You acknowledge that the Content on the Carer’s Notebook App is subject to change at any time and may be out of date at any given time. Carer’s Notebook are under no obligation to:

(a)  update, correct or fix any Content or errors in the Carer’s Notebook App; and/or

(b)  notify you of any changes to the Content or the Carer’s Notebook App unless required by a Relevant Law to do so.

20.3  Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the Carer’s Notebook App. Any changes are effective immediately upon posting to the Carer’s Notebook App. Your continued use of Carer’s Notebook App thereafter constitutes your acceptance of all such changes to the agreement.

20.4  Please read this agreement before using the Carer’s Notebook App as the agreement may have changed since the last time you accessed and used the Carer’s Notebook App. If you do not agree to any change, then you must immediately stop using the Carer’s Notebook App and the Services.

21.     SUPPORT SERVICES

21.1  Carer’s Notebook may, at our absolute discretion, provide you with user support services during Business Hours in accordance with the Carer’s Notebook’s standard support services and maintenance policy (as amended from time to time).

21.2  If you require user support services or you are having difficulties accessing and using the Carer’s Notebook App and the Services, you may contact us by email at support@carersnotebook.com.au.

22.     SEVERABILITY

22.1  If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect.

23.     RELATIONSHIP

23.1  No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

24.     ASSIGNMENT

24.1  Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign or transfer all or any of its rights or obligations under this agreement, except that we may assign, sell or transfer our rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of our business.

25.     ENTIRE AGREEMENT

25.1  This agreement, and any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).

26.     SURVIVORSHIP

26.1  Clauses 5.2, 7.4, 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

27.     JURISDICTION AND APPLICABLE LAW

27.1  The laws of the State of New South Wales, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of New South Wales, Australia.

28.     DEFINITIONS

In this agreement, the following words shall have the following meanings:

(a)  Account has the meaning in clause 4.1(b).

 

(b)  Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

 

(c)  Business Days means each day excluding Saturdays, Sundays and public holidays in New South Wales.

 

(d)  Business Hours means 9:00am to 5:00pm on Business Days.

 

(e)  Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

 

(f)   Collaborator means a user of the Carer’s Notebook App who is authorised or has been invited by you to access the User Content of a Dependant through the Carer’s Notebook App.

 

(g)  Commencement Date has the meaning in clause 3.1.

 

(h)  Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Carer’s Notebook App.

 

(i)    Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement:

• direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
• loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data, economic or financial loss,  loss of opportunity or expectation loss (including loss of medical, healthcare or wellbeing opportunity) wasted medical or treatment costs;
• costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
• loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

 

(j)    Carer’s Notebook, our, us or we has the meaning in clause 1.1, and where the context permits, includes our Personnel and Affiliates.

 

(k)  Carer’s Notebook App means the software made available through the mobile application, and used by Carer’s Notebook to provide you with Services, including the application and database software for the Services, the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property Rights contained therein, provided or otherwise made available by us on, or via, the Carer’s Notebook App.

 

(l)    Carer’s Notebook IP has the meaning given to it by clause 10.1.

 

(m) Dependant means an individual who relies on support from another individual (such as a family member or carer) as they are unable to independently support or care for themselves without aid or support from a family member or carer. 

 

(n)  Force Majeure Event has the meaning in clause 18.

 

(o)  Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

 

(p)  Lite CN App has the meaning in clause 8.1.

 

(q)  Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.

 

(r)   Password has the meaning given to it by clause 4.1(b).

 

(s)  Personnel means any director, officer, employee, contractor or agents, of a party (in your case, includes any person acting for or on your behalf)

 

(t)   Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not.

 

(u)  Primary Account Holder means a person who creates an Account to access and use the Carer’s Notebook App and the Services and who is not a Collaborator.

 

(v)  Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information.

 

(w) Privacy Policy means our privacy policy available on the Carer’s Notebook App or Website or such other web address notified by us to you from time to time), which is incorporated into this agreement.

 

(x)  Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy Laws, anywhere in the world.

 

(y)  Sensitive Information has the same meaning that it has under Privacy Laws, namely information or opinions about your health, political affiliations, sexual preferences, religious beliefs, racial or ethnic origin, criminal history or other such private information.

 

(z)  Services has the meaning in clause 2.1.

 

(aa)             Subscription Fees means the fees payable by you to access and use the Carer’s Notebook App and Services (including Third Party Products and Services) for the Subscription Term as further described on the Carer’s Notebook App and/or Apple Store.

 

(bb)   Subscription Term has the meaning in clause 3.1.

 

(cc)    Third Party Products and Services means any software, products, services or content (including all Intellectual Property Rights contained therein) that:

• are provided by third party providers;
• interoperate with the Carer’s Notebook App or Services; or
• may be identified as third party products or services.

 

(dd)   Third Party Payment Processor means Apple Pay and any other a third party payment processor permitted by Carer’s Notebook from time to time.

 

(ee)   User Content means all data, information, content and materials (including Personal Information, Sensitive Information and registration information):

• uploaded to, or stored on, the Carer’s Notebook App by you or another user of the Carer’s Notebook App;
• transmitted by the Carer’s Notebook App at your or another user’s instigation;
• supplied by you or another user for uploading to, transmission by, or storage on, the Carer’s Notebook App; or
• generated by the Carer’s Notebook App as a result of the use of the Services by you or another user of the Carer’s Notebook App,

but excluding Carer’s Notebook IP.

 

(ff)      User Name has the meaning in clause 4.1(b).

(gg)   Website means the website located at www.carersnotebook.com.au and any other website notified by us from time to time.

 

(hh)   you or your has the meaning in clause 1.3.

  Yes, I have read, understood and accept this agreement.