Terms of Service


Introduction

 

The Company provides the “Cari Medical” online tool to help sleep apnea patients select masks to improve sleep quality. Use of Cari Medical is subject to these Terms of Service.

Definitions

 

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

  • ABN means Australian Business Number.

  • Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.

  • Cari Medical means the “Cari Medical” digital mask selection tool, owned and operated by the Company.

  • Company means Cari Medical Pty Ltd ABN 81 638 758 942.

  • Fee means the upfront fixed fee payable by the User to complete a Survey, as notified from time-to-time.

  • GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  • Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

  • 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.

  • Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.

  • Privacy Act means the Privacy Act 1988 (Cth).

  • Referring Party means a customer of the Company that refers a User to Cari Medical to complete a Survey.

  • Report means a personalised digital report produced for each User that completes a Survey and based on Survey Results.

  • Site means the Company's website found at https://www.carimedical.com/ and any other URL the Company may adopt from time-to-time.

  • Survey means an online questionnaire accessible to the User via Cari Medical, as updated by the Company from time-to-time.

  • Survey Results means the results generated from completed Surveys.

  • Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  • Terms of Service means the terms and conditions that apply to the User with respect to use of Cari Medical as updated from time-to-time.

  • User means any user of Cari Medical that completes a Survey.

  • User Data means any information, documents or other data that is uploaded into Cari Medical by the User, or that otherwise forms part of the User’s Intellectual Property but excludes any derivative data (such as analytics).

Using Cari Medical

 

General

  • To use Cari Medical, the User must accept these Terms of Service.

  • The User agrees that all use of Cari Medical is subject to these Terms of Service and must immediately cease to use Cari Medical if the User can no longer agree or adhere to these Terms of Service.

  • The User agrees to use Cari Medical in accordance with any instructions provided by the Company, by any Referring Party and/or within Cari Medical.

  • Cari Medical is an educational tool only and the Company shall not be regarded as providing medical advice in any way.

Features

The Company shall provide the User with access to and use of the features as provided within Cari Medical from time-to-time, and primarily to complete Surveys.

Surveys

  • Surveys comprise of a set of pre-determined questions and tests to be completed by the User.

  • The User must ensure that the Survey is completed accurately and truthfully, and by the User personally and not on their behalf or upon the instruction of any third party.

  • The Company may add, vary and/or remove elements of Surveys at its complete discretion from time-to-time, which may be on its own volition or at the specific request of a Referring Party.

  • The content of the Survey, in particular the questions asked of the User, remain the Intellectual Property of the Company and the User must not copy, reproduce, vary, distribute or otherwise exploit the Survey without the Company’s express prior written consent, or permit any third party to do so.

  • The User acknowledges and agrees that Survey Results may be used by the Company for research, developmental, statistical, analytical and/or archival purposes, subject to and in accordance with the Privacy Policy.

  • Where required to upload photos and/or videos of their face to complete the Survey, the User acknowledges that the quality of this User Content may affect the accuracy of the recommendations made within a Report.

 

Reports

  • Upon completion of the Survey, a Report will be produced for the User.

  • Reports are automatically generated solely from Survey Results and do not take into account any other factors or considerations.

  • Subject to paragraph below, the Report will be made directly accessible to the User who completed the Survey.

  • Where the User completes the Survey upon request of a Referring Party, then the Report will be sent to the Referring Party on behalf of the User and the Referring Party will be responsible for determining the manner in which Reports are shared with the User (if at all).

  • By completing the Survey upon request of a Referring Party, the User authorises the Company to share their Report with the Referring Party.

  • The User acknowledges and accepts that the Company has no control over the conduct of a Referring Party and cannot be held liable for such in any way (including how they make use of the Report and to whom they share it with).

  • The User must not rely on Reports prima facie without regard to other considerations and due diligence. The Company cannot be liable in any circumstances from any loss or injury suffered by the User as a result of decisions made on the basis of Reports.

  • The Company makes no warranty or representation as to the accuracy or truthfulness of any recommendations within a Report, or that the User will be satisfied with any masks recommended within a Report.

 

Fees

  • Where payable, the User must pay the Fee in full as a pre-condition to completing the Survey.

  • The Fee shall be payable directly to the Company by way of the online payment gateway or other such manner as the Company may direct from time-to-time.

  • All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars).

  • For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the User with a Tax Invoice for any payments.

  • No refunds on Fees are offered other than as required by law.

General Conditions

 

Licence

  • By accepting these Terms of Service, the User is granted a limited, non-exclusive, non-transferrable and revocable licence to access and use Cari Medical for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service.

  • The Company may issue the licence to the User on the further terms or limitations as it sees fit.

  • The Company may revoke or suspend the User’s licence in its absolute discretion for any reason that it sees fit, including for breach of these Terms of Service by the User.

 

Modification of Terms

  • The terms of these Terms of Service may be updated by the Company from time-to-time.

  • Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Cari Medical.

 

Software-as-a-Service

  • The User agrees and accepts that Cari Medical is:

    • Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to servers operated by the Company and is not available ‘locally’ from the User’s systems; and

    • Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to Cari Medical is available to the User unless expressly agreed in writing.

  • 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 Cari Medical.

 

Use & Availability

  • The User shall only use Cari Medical for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral or in a way that is deemed unreasonable by the Company in its discretion.

  • The User agrees that the Company shall provide access to Cari Medical to the best of its abilities, however:

    • Access to Cari Medical may be prevented by issues outside of its control; and

    • It accepts no responsibility for ongoing access to Cari Medical.

 

Support

  • The Company provides user support for Cari Medical via the email address support@carimedical.com.

  • The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.

 

Privacy

  • The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act with respect to personal information that it collects about the User.

  • The Company makes no warranty as to the suitability of Cari Medical in regard to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether Cari Medical is appropriate for the User’s circumstances.

  • Cari Medical may use cookies (a small electronic file) to improve the User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

 

Security

The Company takes the security of Cari Medical and the privacy of its 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.

 

Intellectual Property

  • Trade marks. The Company has moral, unregistered and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

  • Third Party Intellectual Property.  The Company may use software and other proprietary systems and Intellectual Property (including open source systems) 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 Cari Medical.

  • Cari Medical. The User agrees and accepts that Cari Medical is the Intellectual Property of the Company and the User further warrant that by using Cari Medical the User will not:

    • Copy Cari Medical 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 Cari Medical or any documentation associated with it.

  • Content. All content (excluding User Data) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, aggregations, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Cari Medical.

 

Third Party Dependencies

The User agrees and acknowledges that Cari Medical has third party dependencies which may affect its availability, including (without limitation) hosting services and online form generators, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

 

Confidentiality

  • The Company agrees to keep all other User Data in the strictest confidence, and to the extent User Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.

  • 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 these Terms of Service;

    • 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 these Terms of Service 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 by it of any obligations it has in relation to the Confidential Information.

    • 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 unauthorized 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 these Terms of Service; or

    • Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

 

Liability & Indemnity

  • The User agrees that it uses Cari Medical at its own risk.

  • The User acknowledges and accepts that Cari Medical is educational only and the Company shall not be responsible for to any decisions made in reliance on information received via Cari Medical and especially Reports.

  • The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Cari Medical, including any breach of these Terms of Service by the User.

  • In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, 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 Cari Medical, 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, loss, personal injury or death, or 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 or Territories 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.

 

Termination

  • The User may terminate these Terms of Service by giving the Company written notice.

  • The Company may terminate these Terms of Service and access to the Cari Medical if the User is in breach of these Terms of Service and:

    • That breach is not capable of remedy;

    • The breach is material, wilful, reckless or repetitious; and/or

    • The breach can be remedied but is not remedied within 5 Business Days of being given notice of that breach by the Company.

  • Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.

 

Dispute Resolution

  • If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

    • Includes or is accompanied by full and detailed particulars of the Dispute; and

    • Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

  • Within 10 Business Days after a Dispute Notice is given, a representative from each of the parties with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.

  • Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

  • Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

  • Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

Electronic Communication, Amendment & Assignment

  • The words in this 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 these Terms of Service.  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 contact details as they change.

  • A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.

  • The User may not assign or otherwise create an interest in these Terms of Service without the written consent of the Company (which shall not be unreasonably withheld).

  • The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.

General

  • Special Conditions. The parties may agree to any special conditions to these Terms of Service in writing.

  • Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with any special conditions made under these Terms of Service, as relevant, the terms of those special conditions shall 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 these Terms of Service.

  • Relationship.  The relationship of the parties to these Terms of Service does not form a joint venture or partnership.

  • Waiver.  No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

  • Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.

  • Governing Law.  These Terms of Service is governed by the laws of Victoria, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

  • Severability.  Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.

  • Interpretation.  The following rules apply unless the context requires otherwise:

    • Headings are only for convenience and do not affect interpretation.

    • 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 clauses in these Terms of Service.

    • 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 these Terms of Service or another agreement or document includes that party’s successors 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.