SmartCare® Response – Terms and Conditions
SmartCare® Response is a software application (App) developed and maintained by Chiptech International Ltd (Chiptech) and made available by [Retailer Name] (“we”, “us” or “our”). The App may be downloaded, installed and accessed using your Smartphone. You may only download and install the App on your Smartphone if you intend to pair it with a Device and the Device is not already paired to five (5) other Smartphones. These Terms and Conditions (Terms) govern your use of the App. In these Terms “you”, “your” and “Responder” means the individual accessing and using the App.
- Acceptance of Terms
- By downloading, installing, accessing and using the App you agree you have read, understood and accept these Terms and agree to be bound by these Terms and all applicable laws governing the App. If you do not agree to be bound by these Terms and such laws, please do not download, install, access or use the App.
- We, at our sole discretion, may amend these terms and conditions from time to time without prior notice. The most current version of these Terms is located on this website. You are responsible for ensuring you have read the most up-to-date version as your continued use of the App represents your agreement to be bound by these Terms.
- Definitions and Interpretation
- In these Terms, and in addition to the definitions set out above, unless the context otherwise requires:
Account means the account that you create when you first use the App;
App has the meaning set out above and includes all modifications, updates, upgrades and enhancements made to the App, and the services provided in connection with the App;
Associated App means the App that another person has installed on their Smartphone and which is paired to the same Device as the App installed on your Smartphone;
Associated Responder means the user of an Associated App;
Back-Up Monitoring Service means the third party back-up or professional monitoring service engaged by or on behalf of the Device owner to respond to emergency activations of the Device;
Business Days means any day other than a Saturday, a Sunday or a public holiday (as defined in the Holidays Act 2003);
Communications means communications sent from the Device to the App and if enabled, the Back-Up Monitoring Service, and communications sent between the App and any Associated App.
Device means a product (such as a personal emergency response system) provided by [Retailer Name] to a Device owner that has been paired with the App installed on your mobile phone handset.
SmartCare® Central means Chiptech’s cloud based database and monitoring infrastructure used for storing and transmitting information from and between the Device, the App, any Associated App, and if enabled, the Back Up Monitoring Service.
Smartphone means any mobile phone handset with an iOS or Android operating system on which you install the App and shall include other such devices with an iOS or Android operating system, including but not limited to tablets and iPads.
- Interpretation: In these Terms, unless the context otherwise requires:
- headings are for ease of reference only and will not be deemed to form any part of the context or affect the interpretation of these Terms;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to:
- the singular includes the plural and vice versa;
- ‘including’ (and its similar expressions) shall be interpreted as if followed by ‘without limitation’; and
- any legislation shall (except where expressly stated otherwise) be construed as a reference to that legislation as amended, replaced, consolidated or re-enacted.
- The App is designed to connect the owner of the Device directly to their family and friends, or those able to offer care and support, by providing notifications to the App and any Associated Apps when the emergency alarm on the paired Device is activated. After an initial App on a Smartphone is paired to the Device, a maximum of four (4) further Smartphones with the Associated App may be paired to the same Device.
- Once paired, so long as your Smartphone and the Device are connected to a public data network (for instance through a data connection to your telecommunications provider) you and any similarly network connected Associated Responders will receive a push notification on the Smartphone when the Device’s emergency alarm is activated. If functionality for SMS alerts is available and you do not respond to the push notifications an SMS alert will be sent to the mobile phone number you set in your Account. If Back-Up Monitoring is enabled by the Device owner, and no response to the push notifications are received by you or any Associated Responder, or all Associated Responders select “cannot respond”, the monitoring center will be notified.
- Following the activation of a Device the functionality of the App allows you to send messages to Associated Responders and for Associated Responders to send messages to you so long as all Smartphones are connected to a public data network. The App functionality also enables notifications of missing communications, automated tests and power and battery status changes.
- The services provided to the App to enable the operation of its functionality are hosted by Chiptech through its cloud based database and monitoring infrastructure (SmartCare® Central).
- The App, its content, features and functionality are either owned by [Retailer NAME], Chiptech, the people we or Chiptech licence such material from, or the provider of such material and are protected by New Zealand law. No right, title or interest in or to the App or any content, features or functionality on the App is transferred to you. Any use of the App not expressly permitted by these Terms is a breach of these Terms and may also violate copyright, trademark and other laws.
- Subject to these Terms, we grant to you a non-exclusive, non-transferable, limited right to download, install, access and use the App for your own personal non-commercial use for a period, subject to clause 13, of five (5) years from the date you download the App (Term). You are not permitted to copy, reproduce, alter, adapt, reverse engineer, decompile, disassemble, modify, make error corrections for, create derivative works of, or attempt to obtain the source code for, the App, or publicly display any content from the App without our prior express written permission.
- When using the App you must:
- not use or misuse the App in any way which may impair the functionality of the App or SmartCare® Central or interrupt, damage or otherwise interfere with or impair the ability of any other user to use the App;
- not attempt to gain unauthorised access to any part of the App, a Device you are not intended to be associated with, or SmartCare® Central;
- not attempt to access or access anyone else’s information or data within the App, SmartCare® Central or otherwise held by Chiptech;
- not transmit any virus, malware or other malicious code into SmartCare® Central or attempt to undermine the security or integrity of SmartCare® Central;
- not transmit, or input into the App, any data or other material in violation of any law, including material protected by copyright, that is defamatory, harmful, harassing, offensive, threatening or obscene, protected by trade secrets, or in relation to which you have not obtained the necessary consent to use it; and
- not use the App otherwise than in the manner in which the App is designed to be used.
- You are responsible for compliance with all local laws and regulations applicable to your use of the App when using the App. If you access the App from a country other than [country in which the Retailer is selling the Devices] you do so at your own risk.
- When using the App you must:
- System requirements
- To use the App you must install it on a compatible Smartphone with a compatible operating system, and maintain a public data network connection and a data usage plan with a telecommunications network provider.
- You must also keep the App updated with any updates or new versions that we make available on [Apple’s App Store/Google Play].
- Registration and Activation
- Your use of the App requires you to first create an Account. To create an Account you must register your name, your mobile phone number and create a password. Accounts are managed by Chiptech’s SmartCare® Central infrastructure.
- You warrant that the information provided in creating your Account is accurate and correct. You must maintain and update your information to ensure it is correct at all times.
- You are responsible for the activity that occurs on your Account. You must keep your password secure and confidential and must not share it with any other person or permit any other person to use or access your Account. You must immediately notify us of any unauthorised use of your Account, or any other breach of security or any other incident occurs in relation to your Smartphone that threatens or may comprise or threaten the security and integrity of the App or any services delivered by the App.
- If you forget your password you may reset it by following the prompts on the App. You will be sent a code by SMS alert to the mobile phone number set in your Account in order to reset your password.
- We may suspend or disable your Account if you breach these Terms. Chiptech may also suspend or disable your Account if necessary to protect the security of SmartCare® Central or for any other reason.
- Use of the App requires an initial Device pairing. To pair the App to a Device you must follow the instructions set out in the App for pairing with a Device. By pairing the App to a Device you warrant you have the authority of the Device owner to pair the App with their Device.
- You agree that Chiptech may use any personal information obtained about you or the Device owner for any purpose associated with the provision of, or your use of the App.
- You warrant that you have the authority of the Device owner to provide to Chiptech any personal information of the Device owner in the course of registering an Account, pairing the Device or using the App.
- We do not charge you for your use of the App or in sending or receiving any Communications.
- However, you must have arrangements in place with a communications provider. It is your responsibility to pay for the cost of any such arrangements. Sending and receiving Communications will consume data on your data plan and you will be responsible for paying for such data consumption to your communications provider.
- If as a result of any use of the App you send SMS alerts or make telephone calls there may be a charge from your communications provider. It is your responsibility to pay for any such charges.
- We do not charge you to send you SMS alerts. However, we reserve the right to remove such functionality or to alter these Terms to enable us to charge for sending an SMS alert in the future. If we alter these Terms to enable charging for sending an SMS alert you will be able to opt out of receiving such SMS alert if you do not wish to be charged.
- If you use the App outside of your country of residence you may incur international data roaming and/or message service and/or call charges from your communications provider. It is your responsibility to pay for any such charges.
- You acknowledge and agree that the App is provided “as is” and thus your use of the App is at your own risk.
- The App does not provide access to emergency services or emergency services providers. You should ensure you can contact your relevant emergency services providers through a mobile phone, fixed-line telephone, or other service. The App does not make any assessment as to whether emergency services should be called to attend to the Device owner when the emergency alarm is activated. You must make your own assessment in this regard. If you consider that the Device owner is in need of urgent medical attention you should immediately call emergency services by dialing triple zero.
- The App functionality and transmission of Communications relies on the availability of the Internet and various third party communication providers. It is your responsibility to have suitable agreements in place to enable Communications to be sent and received from your Smartphone. You acknowledge and agree that the App will not function if you are logged out of the App, your Smartphone on which the App is installed is not connected to a functioning public data network, you have no data available on your plan or there is a transmission failure. You agree that neither we, nor Chiptech have any responsibility for any message failure in such a case.
- You also acknowledge that:
- you will not:
- receive messages from the Device if the Device is not connected to a functioning public data network, the Device owner does not have data available on their plan or there is a transmission failure;
- receive SMS alerts if the Smartphone with your mobile phone number set in your Account is not within range of a cell tower or there is a transmission failure;
- receive messages from or be able to send messages to Associated Responders if the Associated App is logged out, or not connected to a functioning public data network, the Associated Responder does not have data available on their plan or there is a transmission failure;
- receive any push notifications if you are logged out of the App or have disabled the push notification functionality on your Smartphone;
- Associated Responders will not receive any push notifications if they have disabled the push notification functionality on their Smartphone;
- and agree that neither we, nor Chiptech have any responsibility for any message or push notification failure in such a case; and
- you and Associated Responders are solely responsible for the content of any notes you create in the App or messages that you send or receive using the App. You agree that neither we, nor Chiptech have any responsibility for the content of such notes or any messages sent or received between you and any Associated Responders.
- you will not:
- Communications require the availability of SmartCare® Central and its connection to a functioning public data network which relies on third party communication providers. While we will ensure that Chiptech uses its reasonable endeavours to make SmartCare® Central available, neither we, nor Chiptech are responsible for a Communications failure due to the unavailability of SmartCare® Central or due to a transmission failure.
- You acknowledge that the Back-Up Monitoring Service must be contracted for by or on behalf of the Device owner. While the App may display whether the Back-Up Monitoring Service is enabled, it has no functionality to enable you to disable or enable this service.
- While we have taken care to ensure information provided through the App is correct, neither we nor Chiptech gives any undertakings, representations, or warranties in relation to the Communications. You are solely responsible for any actions you take in reliance on any Communications.
- We reserve the right to restrict access to the App’s functionality for any reason whatsoever without notice or liability. We reserve the right to change, correct or remove any error in the App.
- Our liability is excluded
- The App is provided without charge. As a result, to the maximum extent permitted by law, neither we nor Chiptech are liable or responsible to you or any other person for any direct, indirect or consequential loss, or any exemplary, incidental, special or punitive damages or any loss of profits, revenues or business opportunities that you or any other person may suffer or incur as a result of your access or use of the App. This exclusion applies regardless of whether such liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
- Without limiting the above exclusion or the disclaimers set out in clause 10, to the maximum extent permitted by law, neither we nor Chiptech will be liable or responsible to you or any other person for any loss or damage you or any other person may suffer or incur in connection with:
- the App or any of its functionality being unavailable (in whole or in part) or performing slowly;
- any error in, or omission from, any Communications;
- any misconduct, unlawful or fraudulent behaviour of an App Responder.
- You are responsible for the security of your Smartphone and for ensuring your Smartphone and the manner by which it connects to public data networks protects you from viruses, malware or other malicious code. Neither we nor Chiptech accepts any liability arising from any failure in the security of your Smartphone or from any viruses, malware or other malicious code that affects your Smartphone.
- To the maximum extent permitted by law, we exclude all warranties that may be implied into these Terms by statute or otherwise.
- Indemnity to us
- You indemnify us against any losses, costs (including solicitor and client costs), expenses, demands or liability, whether direct, indirect, consequential, or otherwise, which we may suffer or incur, and whether arising in contract, tort (including negligence), or equity or otherwise, in respect of any third party claim that or arises out of your breach of these Terms or your use of the App.
- Expiry of the Licence
- The licence granted under clause 2 will expire on the earlier of:
- the end of the Term;
- if the Device has not been active for a period of 12 months; or
- if you have not been active on the App for a period of 12 months.
- On expiry of the licence granted under clause 2 you must immediately cease using the App and remove it from your Smartphone.
- The licence granted under clause 2 will expire on the earlier of:
- Force majeure: Neither we nor Chiptech have any liability for any failure of the App, any failure in providing the App services, or any failure to comply with these Terms if such a failure is due to an act, event or cause which is beyond our or Chiptech’s reasonable control, including acts of God, war, sabotage, riot, national emergency, fire, lightening, flood, cyclone, earthquake, landslide, storm, explosion, power shortage, telecommunication outages, strike or other labour difficulty.
- Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
- Privity: Provisions of these Terms that confer a benefit on Chiptech are enforceable by Chiptech in accordance with the New Zealand Contract and Commercial Law Act 2017.
- Severance: If any provision of these Terms becomes invalid or unenforceable that provision shall be severed from the remaining Terms and the remaining Terms will continue in full force and effect.
- Governing law and jurisdiction: These Terms, and your use of the App, shall be governed by and construed in accordance with [New Zealand law – Retailer to confirm choice of law], and you agree that the Courts of [New Zealand – Retailer to confirm] have the non-exclusive jurisdiction to hear and determine any proceedings brought in relation to these Terms, and your use of the App.