NATIONAL HEALTH AUSTRALIA’S SUBSCRIBER MONITORING AGREEMENT
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE ORDERING THIS SERVICE. BY ORDERING, YOU ACKNOWLEDGE HAVING READ AND UNDERSTOOD THIS AGREEMENT. FURTHER, BY ORDERING YOU CONFIRM YOUR ACCEPTANCE OF NATIONAL HEALTH AUSTRALIA’S OFFER OF THE SERVICES (AS DEFINED BELOW) MADE AVAILABLE HEREUNDER SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS. NOTWITHSTANDING THE FOREGOING, YOU AGREE AND ACKNOWLEDGE THAT THE PROVISION OF SERVICES WILL NOT COMMENCE UNTIL AND UNLESS A TEST SIGNAL FROM THE DEVICE (AS DEFINED BELOW) HAS BEEN SUCCESSFULLY RECEIVED BY THE CENTRE (AS DEFINED BELOW). THE COMPANY (AS DEFINED BELOW) IS WILLING TO PROVIDE THE SERVICES ONLY TO PARTIES THAT HAVE ACCEPTED ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. FURTHER, BY PLACING AN ORDER, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND SUBSCRIBER (AS DEFINED BELOW) WISHING TO USE THE SERVICES. IF YOU DO NOT HAVE THE AUTHORITY TO BIND SUBSCRIBER OR IF YOU DO NOT AGREE TO ALL SUCH TERMS AND CONDITIONS, THE COMPANY IS UNWILLING TO PROVIDE THE SERVICES TO SUBSCRIBER, AND YOU SHOULD NOTIFY COMPANY TO DISCONTINUE. USE OF NATIONAL HEALTH AUSTRALIA’S PRODUCTS AND SERVICES WILL SIGNIFY SUBSCRIBER’S ACCPETANCE OF THE TERMS AND CONDITIONS STATED HEREIN.
TERMS AND CONDITIONS OF NATIONAL HEALTH AUSTRALIA MONITORING SERVICES
THIS TERMS AND CONDITIONS OF NATIONAL HEALTH AUSTRALIA MONITORING SERVICES (this “Agreement”) is entered into and between NATIONAL HEALTH AUSTRALIA PTY LTD (the “Company”), and you as the subscriber (“Subscriber”). By activating the Device (as defined below) and sending a test signal to the Centre (as defined below), Subscriber re-confirms that he / she has read this Agreement and accepts all of the terms and conditions contained herein. Subscriber (sometimes referred to as “you”) has agreed to purchase a personal emergency tracking device (the “Device”) from the Company (sometimes referred to as “us” or “we”) and subscribe to monitoring services which will be provided a third-party subcontractor call centre (the “Centre”). The Company agrees to provide monitoring services for the Device in accordance with the terms and conditions of this Agreement.
- SERVICES. During the term of this Agreement, the Centre will provide seven (7) days per week, twenty-four (24) hours per day monitoring of the Device (the “Monitoring Service”) in accordance with the provisions set forth herein. The Monitoring Service will include receipt, analysis and response to alarm signals and calls made Subscriber through the Device. The Device is intended to be used only for personal emergencies and the Centre may notify appropriate authorities (i.e., police, fire department or other emergency personnel) if a signal is received from the Device and the Centre verifies such signal. The Monitoring Service is designed to track the Device, and, therefore, if (I) you provide the Device to another person or (ii) become separated from the Device, the Monitoring Service will not be able to track your location. THE MONITORING SERVICE WILL NOT BEGIN AND THE CENTRE WILL HAVE NO OBLIGATION TO NOTIFY EMERGENCY PERSONNEL UNTIL A TEST SIGNAL FROM THE DEVICE HAS BEEN SUCCESSFULLY RECEIVED BY THE CENTRE AND YOU HAVE RECEIVED CONFIRMATION THAT SUCH SIGNAL HAS BEEN RECEIVED.
- PAYMENT AND TERMS. For the Monitoring Service, you agree to pay the monthly, quarterly, or annual amount specified the Company at the time you purchased the Device beginning from the time the Device is activated. The Monitoring Service shall begin only when the test signal from the Device has been successfully received the Centre (the “Effective Date”). The original term of this Agreement is the billing cycle selected and will renew for the same consecutive billing cycle thereafter unless terminated pursuant to the terms of this Agreement. You agree to pay all sales, service, property, use and local taxes; any, police, fire department, ambulance or paramedic charges or fees; and any permit fees, telephone charges, return check charges, or late charges, if applicable, whether imposed on you. Late payments for any charges billed NATIONAL HEALTH AUSTRALIA will be subject to a flat fee of $15.00. In the event that it shall become necessary for us to undertake legal proceedings to collect payments due under this Agreement then you agree to pay us our reasonable attorney’s fees for such collection action except where prohibited law.
- THE DEVICE AND THE MONITORING SERVICE HAVE CERTAIN LIMITATIONS. IN CONSIDERATION FOR THE PROVISION OF THE DEVICE AND THE MONITORING SERVICE, YOU ACKNOWLEDGE THAT NEITHER WE, THE CENTRE NOR ANY OF OUR SUPPLIERS OR SUBCONTRACTORS REPRESENT OR WARRANT THAT THE DEVICE OR THE MONITORING SERVICE WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO YOU OR OTHERS WHO USE THE DEVICE AND YOU OR OTHERS WHO USE THE DEVICE DO NOT AND HAVE NOT RELIED UPON ANY EXPRESS OR IMPLIED REPRESENTATION BY THE COMPANY, THE CENTRE OR ANY OF OUR SUPPLIERS OR SUBCONTRACTORS TO THAT EFFECT. NEITHER WE NOR THE CENTRE MAKES ANY REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF OUR OR THE CENTRE’S RESPONSE, AND NEITHER WE NOR THE CENTRE HAVE ANY CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE DEVICE BEING USED. YOU FURTHER UNDERSTAND THAT WE OR THE CENTRE MAY BE NEGLIGENT IN PROVIDING THE SERVICE, AND THE CENTRE MAY FAIL TO PROPERLY RESPOND TO THE RECEIPT OF AN EMERGENCY SIGNAL FROM THE DEVICE, OR THAT THE DEVICE MAY FAIL TO FUNCTION PROPERLY. IT IS UNDERSTOOD THAT A PORTION OF THE DEVICE RELIES UPON THE AVAILABILITY OF GPS COVERAGE, WIRELESS INTERNET NETWORK AVAILABILITY AND/OR CELLULAR NETWORK COVERAGE TO OPERATE PROPERLY AS WELL AS THE AVAILABILITY OF SATELLITE GPS DATA, BOTH OF WHICH ARE PROVIDED BY A THIRD PARTY THAT IS NOT CONTROLLED BY THE COMPANY. YOU AGREE THAT IF WE OR THE CENTRE WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY YOU PURSUANT TO SECTION 16 OF THIS AGREEMENT, WE COULD NOT AND WOULD NOT PROVIDE THE DEVICE OR SERVICE. YOU ACKNOWLEDGE THAT YOU SHOULD OBTAIN ANY LIFE, MEDICAL OR DISABILITY INSURANCE FOR THE PROTECTION OF YOURSELF AND OTHERS WHO MAY USE THE DEVICE. YOU UNDERSTAND THAT THERE ARE ALTERNATIVES AVAILABLE TO YOU SUCH AS 000 EMERGENCY TELEPHONE SERVICE AND YOU HAVE SELECTED THIS SERVICE WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF OUR LIABILITY SET FORTH IN SECTION 16.
- MONITORING SERVICE. The Device is connected to the Centre’s monitoring network. When an emergency signal from the Device is received the Centre, the Centre shall, without warranty, make every reasonable effort to promptly contact you and, if the Centre determines that it is necessary in its reasonable judgment, notify the appropriate emergency authorities (fire department, police, ambulance service, etc.) (collectively, the “Responders” and each a “Responder”). You represent that the emergency contact information provided you to the Company is accurate. To avoid false alarms, the Centre may first call your contact telephone number to determine if an actual emergency exists before contacting any Responder. If the Centre has reason to believe that no actual emergency exists, the Centre may choose not to place such call or notify any Responder. You here agree that the Centre may rely absolutely on the statements of Subscriber, the Responders or any person acting on behalf of Subscriber or the Responder, with regards to responses to the location and condition of Subscriber. We may discontinue any particular form of response if required to do so any governmental authority or insurance interest. You acknowledge and agree that the Device and all monitoring software, computer codes and monitoring information remain our sole and exclusive property. SUBSCRIBER AGREES THAT THE CENTRE IS RESPONSIBLE ONLY FOR ENDEAVORING TO NOTIFY THE APPROPRIATE RESPONDERS AND IS NOT RESPONSIBLE FOR THE PROMPTNESS, SUFFICIENCY OR ADEQUACY OF THE ACTION OF ANY RESPONDER OR ANY THIRD PARTY ACTING AS A RESPONDER. SUBSCRIBER ACKNOWLEDGES THAT IN NO WAY DOES THE COMPANY REPRESENT OR GUARANTEE THAT THE RESPONDERS CAN BE CONTACTED, THAT THEY CAN OR WILL RESPOND, OR THAT ANY RESPONSE WILL BE SAFE OR EFFECTIVE. SUBSCRIBER AGREES THAT THE RESPONDERS ARE NOT AGENTS OR OTHER REPRESENTATIVES OF THE COMPANY AND ANY ACTION TAKEN BY THE RESPONDERS SHALL IN NO WAY BE IMPUTED TO THE COMPANY. YOU UNDERSTAND THAT THE CENTRE WILL NOT SEND ANY COMPANY OR CENTRE PERSONNEL IN RESPONSE TO ANY EMERGENCY SIGNAL.
- GPS, CELLULAR AND/OR WIRELESS INTERNET COVERAGE; GEOGRAPHIC LIMITATIONS. The ability of the Device to accurately track your location is dependent upon the availability of GPS, cellular network and/or wireless internet coverage depending upon your location. The Device will function only in areas, locations and buildings where such service is available. If such service is unavailable or unreliable, the Device may not accurately reflect your location. In such event, the Centre may be unable to communicate your location to a Responder, and a Responder may not be able to locate you. The Device does not track locations outside AUSTRALIA (DEPENDANT ON NETWORK SERIVCE AND COVERAGE); therefore, if you reside outside of such geographic area or you intend to use the Device outside of such geographic area, we recommend that you do not purchase the Device or the Monitoring Service.
- FALSE ALARMS AND ABUSE OF SERVICE. You agree that you and others using the Device will use it carefully so as to avoid causing false alarms. False alarms can be caused forces beyond our control. If we receive too many false alarms, that will constitute a breach of contract you, and we may cancel this Agreement and the Monitoring Service. If a false alarm fine or penalty or a response fee is charged to us or you any governmental agency or other person, you will pay such charge. Subscriber further acknowledges and agrees that the Monitoring Service may be suspended from time to time for excessive false alarms, improper signals and “problem accounts.”
- SUBSCRIBER’S DUTIES. You shall:
- Test the Device in accordance with the instructions provided including performing a range test, GPS lock test, and a signal test to the Centre;
use the Device and the Monitoring Service in accordance with the terms and conditions of this Agreement and the procedures and specifications provided the Company and shall not use the Device and the Monitoring Service for any other purposes;
- Complete and give us the Subscriber Information Form and notify us in writing of any changes in the persons or telephone numbers on your emergency call list;
- Not alter, modify or attempt repairs on the Device, except pursuant to the instructions of the Company, the Centre and/or our authorised service representatives;
- Not allow any other person to use the Device unless such person is approved the Company and the Centre and provides emergency contact information;
- Allow us, the Centre and/or our authorised service representatives access to the Device in order to inspect the Device, performance maintenance or repairs to the Device or remove the Device after termination or expiration of this Agreement.
- Test the Device in accordance with the instructions provided including performing a range test, GPS lock test, and a signal test to the Centre;
- CONSENT TO DISTRIBUTION OF INFORMATION. You are providing us with certain information for the purposes of providing the Monitoring Service. You here agree that we may provide the Centre, the Responders and any other necessary third parties, as determined us in our reasonable discretion, with access to such information provided you in connection with this Agreement. You here release us from all liability, which may arise out of our disclosure of such information to the Centre, the Responders and any other necessary third parties. You here acknowledge that all communications between you, the Company and the Centre may be recorded and you consent to such recording.
- FORCE ENTRY AND INACTIVITY ALARMS. You agree and acknowledge that if any alarm signal is received the Centre and a Responder is sent to the location of the Device, in the event that the Responder would need a key, code or other means of accessing such location that is unavailable to such Responder, the Responder may be required to forcibly enter or break into such location if the Responder determines that it is necessary in their sole discretion. You understand that this may result in damage or physical injury to you or a third-party or to property owned you or a third-party. YOU HEREBY WAIVE ANY CLAIM AGAINST US OR ANY RESPONDER WHICH MAY ARISE AS A RESULT OF SUCH BREAK-IN OR FORCED ENTRY, AND YOU HEREBY AGREE TO HOLD HARMLESS, INDEMNIFY AND DEFEND US, THE CENTRE, THE RESPONDER AND ANY OF OUR OR THEIR AUTHORISED REPRESENTATIVES FOR ANY LOSSES INCURRED BY US OR THEM IN CONNECTION WITH SUCH FORCED ENTRY. YOU ACKNOWLEDGE THAT THIS PROVISION COULD REQUIRE YOU TO PAY SIGNIFICANT AMOUNTS IN THE EVENT THAT THE COMPANY, THE CENTRE, THE RESPONDER AND/OR ANY OF OUR OR THEIR AUTHORISED REPRESENTATIVES IS REQUIRED TO PAY, OR AGREES TO PAY, ANY THIRD-PARTY FOR DAMAGE TO SUCH PERSON OR SUCH PERSON’S PROPERTY.
- 10. EQUIPMENT MAINTENANCE. We may repair or replace, as determined in our sole discretion, the Device if it becomes damaged or is defective during the period of any warranty offered to you at the time of purchase, unless (I) the Device has previously been disassembled, repaired or modified someone other than us or our authorised service representative or (ii) the Device has been damaged as a result of the negligence or misconduct any person other than us or our authorised service representative. If the Device becomes damaged as a result of (I) or (ii) above, you shall pay us the replacement price for the Device.
- 11. RESPONSE. You acknowledge that we make no representation or warranty as to the promptness of the Centre and that we have no control over the response time or capability of any Responder who may be notified as a result of the Device being used. You further understand that the Centre may fail to properly respond to an emergency signal from the Device or that the Device may fail to operate properly. You further acknowledge that the Centre shall not be obligated to perform the Monitoring Service during any time when the Device is inoperative.
- 12. TERMINATION, DEFAULT.
(a) If you materially breach this Agreement, including, without limitation, failing to make any payment when due, we may discontinue the Monitoring Service and terminate this Agreement. If service is suspended because you have breached this Agreement, and you ask us to reactivate the Device after you have cured such breach, you will pay, in advance, our then prevailing reconnection fee. You authorize us to investigate your credit record, and to report your payment performance under this Agreement to credit agencies and credit reporting services. YOU UNDERSTAND THAT THE DEVICE WILL NOT WORK WITH EQUIPMENT USED BY OTHER COMPANIES OR MONITORING CENTRES.
- SUSPENSION OR CANCELLATION OF THIS AGREEMENT. You understand that we may stop or suspend the Monitoring Service for any of the following reasons: (a) strikes, severe weather, earthquakes or other such events beyond our control affecting the operation of the Centre or so severely damage your premises that continuing service would be impractical; (b) an interruption or unavailability of the Monitoring Service as a result of a disruption to the electrical lines, cellular network, radio towers and GPS network that prevents a connection between the Device and the Centre; (c) your failure to pay the service charge due to us; (d) we are unable to provide service because of some action or ruling any governmental authority; (e) we are unable to subcontract for the Monitoring Service 24 hours a day, 7 days a week, and (e) you become a debtor in a bankruptcy proceeding.
- ASSIGNEES AND SUBCONTRACTORS. We may transfer or assign this Agreement without notifying you and without your consent. You may not transfer this Agreement to someone else unless we approve the transfer in writing. We may use subcontractors (including the Centre or any other independent monitoring centre) to provide the Monitoring Service, and this Agreement shall apply to them and the work they perform and protect them in the same manner as it applies to and protects us. You acknowledge and agree that any subcontractor shall be considered an “independent contractor” and therefore not affiliated with us in any way as a partner, joint venture, agent or employee.
- CHANGES TO THE DEVICE. If you or any governmental agency or insurance interest wants us to change the Device described herein, or change it after it is installed, you agree to pay our standard parts and labour charges for such changes. YOU AGREE THAT YOU HAVE CHOSEN THIS DEVICE AND YOU UNDERSTAND THAT THIS DEVICE DOES NOT PROVIDE INTRUSION OR FIRE PROTECTION.
- THE COMPANY IS NOT AN INSURER; WARRANTY AND DISCLAIMER; LIMITATION OF LIABILITY.
(a) You understand and agree that neither we nor the Centre are an insurer of your premises, property or your personal safety and that you are solely responsible for providing any life, health or disability insurance and insurance on you and your premises and its contents. You understand and agree that the amount you pay to us is based solely only on the value of the Monitoring Service we provide and not on the value of you or your premises or its contents, it is difficult to determine in advance the value of any personal injury or death or the property that might be lost, stolen or destroyed if the Device or our service fails to operate properly and it is difficult to determine in advance what portion, if any, of any property loss, personal injury or death would be proximately caused our or the Centre’s failure to perform, our or the Centre’s negligence, or a failure of the Device or our or the Centre’s service. You further understand that the amounts being charged us are not sufficient to guarantee that no loss will occur and that we are not assuming responsibility for any losses which may occur even if due to our negligent performance or failure to perform any obligation under this Agreement. Subscriber assumes all risk of loss or damage to premises or the contents thereof, or personal injury or death. You agree to look exclusively to your insurer to recover damages. You waive all subrogation and other rights of recovery against us or the Centre that any insurer or other person may have as a result of paying any claim for loss or injury to any other person.
(b) THE COMPANY MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND RELATING TO THE DEVICE AND THE MONITORING SERVICE AND EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE DEVICE AND THE MONITORING SERVICE, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, THERE SHOULD ARISE ANY LIABILITY WITH REGARD TO THE DEVICE AND/OR THE MONITORING SERVICE, OUR MAXIMUM LIABILITY ARISING OUT OF THE PROVISION OF THE DEVICE AND/OR THE MONITORING SERVICE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED $250.00. SINCE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE DUE TO A FAILURE OF THE DEVICE AND/OR THE MONITORING SERVICE, THIS SUM SHALL BE COMPLETE AND EXCLUSIVE AND SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THIS SUM IS YOUR SOLE REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- THIRD PARTY INDEMNIFICATION AND NO SUBROGATION. If anyone other than you asks us to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from (I) the Company’s breach of this Agreement or a failure of the Device and/or the Monitoring Service, (ii) our negligence, gross negligence or failure to perform, (iii) any other improper or careless activity of ours in providing the Device and/or the Monitoring Service or (iv) a claim for indemnification or contribution, you will pay us (a) any amount which a court orders us to pay or which we reasonably agree to pay, and (b) the amount of our reasonable attorneys’ fees and any other losses or costs that we may pay in connection with the harm or damages. Unless prohibited your property insurance policy or other insurance, you agree to release us from any claims of any parties suing through your authority or in your name, such as your insurance carriers, and you agree to defend us against any such claim. You will notify your insurance carrier(s) of this release.
- LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL. Both parties agree that no lawsuit or any other legal proceeding brought in connection with this Agreement shall be brought or filed more than one (1) year after the incident giving rise to the claim occurred. In addition, each of the parties here waives its rights to a jury trial of any claim or action based upon or arising out of this Agreement, directly or indirectly, and/or the relationship that is being established among the parties hereunder. The scope of this waiver is intended to cover all disputes that may be filed in court, including without limitations contract, tort, breach of duty, and all other common law and statutory claims. This waiver is irrevocable and may not be modified either orally or in writing. This waiver applies to any future amendments, renewals, supplements or modifications of or to this Agreement. In the event of litigation covered the scope of this waiver, this Agreement may be filed in court as a written consent to a trial the court.
- AMENDMENT AND WAIVER. This Agreement may not be amended except in a writing signed us. Amendments of which we give notice and post to the Company’s website at www.NATIONALHEALTH.com.au will be deemed a writing signed us Any amendment to this Agreement will take effect immediately upon being posted to the Company’s website and your continued use of the Services after an amendment is so posted constitutes your acceptance of and agreement to the amendment.
- SEVERABILITY. In the event any one or more of the provisions of this Agreement is held to be unenforceable under applicable law, such unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if said unenforceable provision had not been contained herein.
- GOVERNING LAW. This Agreement and the respective rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the State of QUEENSLAND, without regard to conflicts of law’s provisions.
- ATTORNEYS FEES. In the event that it should become necessary for the Company to institute legal proceedings against Subscriber to enforce any provision of this Agreement, Subscriber agrees to pay the Company reasonable attorneys’ fees and costs, except where prohibited law.
- CANCELLATION: YOU, SUBSCRIBER, MAY CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE EFFECTIVE DATE. IF CANCELLATION IS DESIRED, SUBSCRIBER MUST MAKE AVAILABLE TO THE COMPANY OR ITS AGENT, IN GOOD CONDITION, THE DEVICE AND ANY OTHER EQUIPMENT DELIVERED UNDER THIS AGREEMENT. TO CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER, SUBSCRIBER MUST MAIL OR DELIVER A SIGNED AND DATED NOTICE OF CANCELLATION TO THE COMPANY NO LATER THAN THE THIRD (3RD) DAY AFTER THE EFFECTIVE DATE. THE NOTICE OF CANCELLATION SHOULD BE COMMUNICATED IN WRITING OR VERBALLY TO NATIONAL HEALTH AUSTRALIA AT 1800 336 333 OR PO BOX 5054 MERMAID WATERS, QLD AUSTRALIA 4218