Terms and Conditions
Welcome to the SmartCare® Cloud. These Terms govern Chiptech’s obligations as a SmartCare® Cloud provider and Your obligations as a customer, and apply from the time that You register to use the SmartCare® Cloud.
Chiptech reserves the right to change these Terms at any time, effective upon the posting of modified Terms on Chiptech’s website. It is Your obligation to ensure that You have read and understood the most recent Terms available on the SmartCare® Cloud.
By registering to use the SmartCare® Cloud You acknowledge that You have read and understood these Terms. These Terms were last updated on 03 December 2019.
Chiptech means Chiptech Limited, and includes Chiptech International Limited.
Company Admin means, in relation to use of and access to the SmartCare® Cloud, the person (or persons) in Your organisation You designate with the ability to:
- setup and update company profiles, including firmware, python firmware and voice files;
- determine who can be a Company User and set their roles and level of access;
- create new companies; and
- reset passwords for Company Users.
Company User means, in relation to use of and access to the SmartCare® Cloud, the person (or persons) in Your organisation You designate with the ability to:
- change their password and security question;
- view all information about Devices; and
- take any other authorised actions.
Confidential Information includes all information exchanged between You and Chiptech, whether in writing, electronically or orally, all Data, the SmartCare® Cloud, including all material, software, and information relating to the SmartCare® Cloud, and any other information of a confidential nature or deemed confidential (either expressly or by implication) by a party, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by a party.
Data includes all data inputted by You or Chiptech to the SmartCare® Cloud, or which is automatically collected from Devices in the field by SmartCare® Cloud.
Default has the meaning set out in clause 9 of these Terms.
Device means any data enabled product produced by Chiptech that can communicate with SmartCare® Cloud.
Intellectual Property Right means any patent, trade mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
SmartCare® Cloud means Chiptech’s cloud based online portal and management system for interacting with devices at the secure domain site https://smartcarecloud.chiptech.co.nz
User means You, a Company Admin or a Company User.
You and Your means the person or entity (other than Chiptech) who has registered to use the SmartCare® Cloud.
2. Use of SmartCare® Cloud
Chiptech grants You a non-exclusive, non-transferable, licence to use the SmartCare® Cloud in accordance with these Terms.
3. General Obligations
You must only use the SmartCare® Cloud for Your own lawful internal business purposes, in accordance with these Terms, and otherwise as authorised or directed by Chiptech from time to time.
SmartCare® Cloud requires certain settings be made on Devices. You are responsible for ensuring that Devices are set-up correctly and that those Devices retain those settings and any required updates to them are made when required. Where you have a private APN, you must ensure the Devices have white-listed the DNS addresses advised by Chiptech. While Chiptech uses its reasonable endeavours to provide one week’s notice of any required update, such notice period is not always possible due to factors outside Chiptech’s reasonable control. Regardless of the amount of notice given you must also ensure that you update white-listed addresses in a timely manner and within any time frame as is advised by Chiptech.
You acknowledge and agree that You control, and are at all times solely responsible for, each User’s access to and use of the SmartCare® Cloud, including ensuring that all Users keep passwords, security questions, and access to the SmartCare® Cloud secure and confidential and that Your authorisation information is not used by any other User (except You) to access the SmartCare® Cloud. You must immediately notify Chiptech of any unauthorised password use and any other breach of security of the SmartCare® Cloud.
You must not, and will ensure that no other User attempts to, modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the SmartCare® Cloud, or attempt to gain access to any information stored on the SmartCare® Cloud that you are not legally entitled, authorised or permitted to access, or in which you have no proprietary right, or no legal or equitable interest.
You indemnify Chiptech against all claims, costs, damage and loss arising from breach of any of these Terms by a User.
Unless You or Chiptech (as the case may be) has the prior written consent of the other, or unless required to do so by law, both parties will preserve the confidentiality of, and take all practical steps to protect, all Confidential Information of the other obtained in connection with the use or provision of the SmartCare® Cloud. Neither party will, without the prior written consent of the other party, disclose or make available any Confidential Information of the other party to any person, or use the same for its own benefit, unless expressly provided by these Terms.
The obligations set out in this clause 5 will survive termination of these Terms.
6. Intellectual Property
SmartCare® Cloud: Intellectual Property Rights in, and any other rights relating to, the SmartCare® Cloud remain the property of Chiptech at all times.
Ownership of Data: Intellectual Property Rights in Your Data remain Your property. However, You grant Chiptech a non-transferable licence to use, copy, transmit, store, and back-up Your Data for the purposes of enabling You to access and use the SmartCare® Cloud, and for any other purpose necessary for Chiptech to provide the SmartCare® Cloud to You.
Backup of Data: Chiptech adheres to best practice policies and procedures to prevent Data loss, including a daily system Data back-up regime, but does not guarantee that there will be no loss of Data. Chiptech expressly excludes liability for any loss of Data no matter how so caused.
7. Warranties and acknowledgements
The provision of, access to, and use of, the SmartCare® Cloud is on an “as is, where is” basis and at Your own risk. The operation and availability of the systems used for accessing the SmartCare® Cloud, including computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the SmartCare® Cloud. Chiptech is not in any way liable for any such interference or prevention of Your access or use of the SmartCare® Cloud.
Chiptech will not be liable for any problems with the Device or its software or firmware that arise due to Your failure to set up the Device correctly, follow instructions of Chiptech, install a Device enhancement that is made available, or any failure that is outside Chiptech’s reasonable control. A failure outside Chiptech’s reasonable control includes if the Device is out of range, if there is a transmission failure, if it is not used on the cellular network instructed by Chiptech, or if the Device connection to GPS technology (where relevant) is affected by atmospheric conditions, buildings or any other form of interference.
Except as expressly provided in these Terms, Chiptech disclaims all warranties (express, implied, or statutory) including, but not limited to, any implied warranties as to merchantability, fitness for a particular purpose, accuracy or completeness of responses, results, workmanlike effort, lack of viruses, and any other matter relating to the SmartCare® Cloud, and the provision of, or failure to provide, support to You.
You warrant and represent that You are acquiring the right to access and use the SmartCare® Cloud for legitimate business purposes and that any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction do not apply to the provision and use of the SmartCare® Cloud.
8. Limitation of Liability
To the maximum extent permitted by law, under no circumstances will Chiptech, its officers, employees, contractors, agents, or suppliers be liable in contract, tort (including negligence) or otherwise to compensate You for any loss, injury, damages, or special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the SmartCare® Cloud, the provision of or failure to provide support for the SmartCare® Cloud, or otherwise under or in connection with these Terms.
If the above limitation is unenforceable in whole or part, and You suffer loss or damage as a result of Chiptech’s negligence or failure to comply with these Terms, any claim by You against Chiptech will be limited in respect of any one incident, or series of connected incidents, to the amount You have paid for access to SmartCare® Cloud in the previous 12 months.
If You are not satisfied with the SmartCare® Cloud, Your sole and exclusive remedy is to terminate these Terms and your use of SmartCare® Cloud.
9. Suspension, Term and Termination
Chiptech may immediately suspend your use of the SmartCare® Cloud if You are in default of any of these Terms (Default).
If You fail to correct a Default within ten (10) days after written notice by Chiptech, Chiptech may terminate your use of the SmartCare® Cloud.
You may terminate use of the SmartCare® Cloud at any time on giving one month notice in writing to Chiptech.
Chiptech may terminate your use of SmartCare® Cloud on three months written notice if it decides to cease providing SmartCare® Cloud to its customers generally.
In the event Your use of the SmartCare® Cloud is terminated for any reason, You will immediately discontinue using, and not make any further attempt to use, the SmartCare® Cloud.
In the event Your use of Chiptech SmartCare® Cloud terminates, Chiptech may, at its discretion, provide reasonable assistance to enable You to transition the Devices to another software provider. Where Chiptech provides such assistance You agree to pay Chiptech at an agreed rate for such services.
10. Support, maintenance and availability
Support and Maintenance:
Chiptech may from time to time make software or firmware enhancements to the Device (which may be to a base unit and/or an individual device) or SmartCare® Cloud at no cost to you.
Chiptech may also provide enhancements at no cost to you, to add planned features and improvements (at Chiptech’s sole discretion) to the Device or SmartCare® Cloud. You may request in writing that Chiptech add additional features or functionality, but these may be charged at a cost to You.
Enhancements to the Device may be applied by Chiptech (via a remote connection) or made available to you or the user of the Device to apply. You must ensure that you install any enhancement in accordance with instructions provided by Chiptech.
While Chiptech uses its best efforts to ensure enhancements to the Device are error free, Chiptech is not able to test all situations. As such, Chiptech will not be liable for any problems with the Device or software or firmware errors that are caused by the installation of the enhancements and which are unique to the environment in which you have deployed the Device (including the communications network accessed by the Device).
Within Your first 12 months use of the SmartCare® Cloud, Chiptech will investigate and attempt to rectify (at its own expense), within a thirty (30) day period following receipt of written notification from You, any substantial errors in the SmartCare® Cloud software.
You may submit questions of a technical nature to Chiptech via the Request Support from Chiptech button in the SmartCare® Cloud and Chiptech will endeavour to answer such questions during business hours (in Christchurch, New Zealand). Chiptech will provide this service to You, up to a maximum of 16 man hours, free of charge within Your first 12 months use of the SmartCare® Cloud. Continuation of this service after Your first 12 months use of the SmartCare® Cloud will be in accordance with Chiptech’s standard fees and charges applicable at that time, such fees and charges being available on request to Chiptech.
Chiptech will use reasonable endeavours to ensure the SmartCare® Cloud is available 24 hours a day, seven days a week. However, You acknowledge that the SmartCare® Cloud may be unavailable on occasion to permit maintenance or other development activity to take place.
Chiptech will endeavour to provide reasonable notice in advance of any such activity.
Entire Agreement: These Terms supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Chiptech relating to the SmartCare® Cloud and the other matters dealt with in these Terms.
No Assignment: You may not assign or transfer any of Your rights or obligations under these Terms to any other person without Chiptech’s prior written consent.
Governing Law and Jurisdiction: These Terms are governed by and construed in accordance with the laws of New Zealand and You irrevocably and unconditionally agree that the Courts of New Zealand have jurisdiction to hear and determine any proceedings brought in relation to these Terms.
Severability: If any of these Terms are held by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining Terms will not in any way be affected or impaired and the remainder of these Terms will be binding on the parties.
Waiver: Failure by a party to enforce at any time any one or more of the terms or conditions of this Agreement is not a waiver of that party’s right to subsequently enforce at any time any one or more of the terms or conditions of this Agreement.
Force Majeure: Notwithstanding any other provisions of these Terms, if either party fails to observe or perform any of the covenants conditions and agreements imposed upon it, and such failure shall have been occasioned by or in connection with or in consequence of Force Majeure, such failure shall be deemed not to be a breach of such covenants conditions and agreements. For the purposes of these Terms, Force Majeure means any act of God, strike, lockout, work stoppage or other labour hindrance, confiscation or expropriation, embargo, blockade, insurrections, public mains electrical supply failure, fire, flood, storm, explosion, nuclear accident, sabotage, revolution, riot, act of war whether declared or not, warlike operations, requirement or restriction of governmental authorities, order of the court, earthquake, slide, epidemic, quarantine restriction, software failure or any other similar cause beyond the reasonable control of a party, which prevents, hinders or interferes with the performance by either party of its obligations under these Terms.