ESTIA HEALTH CONNECT TERMS AND CONDITIONS
These End User Terms and Conditions (Terms) were last revised on 7 July 2022.
These Terms govern how Estia Investments Pty Ltd (we, our or us) will supply and you may use Estia Health Connect. You accept these Terms by clicking on the ‘I agree’ (or similar) button or checkbox presented to you, providing us written confirmation of your acceptance, or by using and continuing to use Estia Health Connect.
We may change these Terms from time to time. If you do not accept any changes to these Terms, you must immediately cease using Estia Health Connect.
1 Conditions of using Estia Health Connect
1.1 You represent and warrant that you are properly authorised to use Estia Health Connect in your capacity as our employee, contractor, volunteer, care recipient, or representative, family member, friend or carer of a care recipient, or in such other capacity as we may permit from time to time.
1.2 You are solely responsible for ensuring the security of all accounts and passwords that you use for Estia Health Connect. All login and access details must be used only by you. You are also solely responsible for the security of (any must not share) any text or other messages containing one time passwords that you receive. If you become aware or suspect that any such information has been compromised, you must immediately notify us and (if possible) update your security information. You accept responsibility for all activities and changes to data that occur through your account.
1.3 You must only use Estia Health Connect for the purposes for which you are authorised to do so. Without limiting the foregoing, you represent and warrant that you will:
(a) not use Estia Health Connect for any purpose other than in relation to our provision of aged care, including residential aged care and accommodation, respite care and accommodation and other such services in care or aged care, or disclose (or allow access to) Estia Health Connect by any person other than persons authorised by us and for that purpose;
(b) not decompile, disassemble, reverse engineer, or otherwise attempt to derive the Estia Health Connect coding;
(c) not use Estia Health Connect to send or store material containing viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
(d) not interfere with or disrupt the integrity or performance of Estia Health Connect;
(e) not sell, rent, lease, license, sublicense, display, time share or otherwise transfer Estia Health Connect to, or permit the use of Estia Health Connect by, any third party; and
(f) not use, or offer to use, Estia Health Connect in any way that would:
(i) encroach upon or interfere with the privacy of any individual;
(ii) result in a breach of any law, including data protection laws;
(iii) infringe upon any person’s rights, including, without limitation, intellectual property rights and moral rights; or
(iv) constitute a misuse of any person’s confidential information; or
(v) ensure that there is no unauthorised use, copying, publication or dissemination of Estia Health Connect.
1.4 Your access to Estia Health Connect may be subject to your or another person’s paying fees for access. If you or they cease paying any access fees as and when due, we may suspend or terminate your access to Estia Health Connect.
1.5 We reserve the right to, at any time and without prior notice, disable or remove your access to Estia Health Connect in the event of any breach or suspected breach of these Terms.
2 Your responsibilities
2.1 You represent and warrant that you shall:
(a) determine for yourself the suitability, adequacy and fitness for purpose for which you intend to use and use Estia Health Connect;
(b) use appropriate anti-virus software and appropriate security measures and shall assess and implement any additional backing up of data in accordance with your own needs;
(c) not do anything which will compromise or interfere with the delivery and access of Estia Health Connect;
(d) use Estia Health Connect in accordance with any documentation provided;
(e) provide the relevant computer or other device platform and facilities to enable access to Estia Health Connect;
(f) comply with all laws applicable to these Terms;
(g) ensure that you have obtained all relevant consents required for you to use Estia Health Connect;
(h) ensure that all information and materials you provide shall remain accurate, true and correct, and you will inform us of any update or change in this information or materials immediately upon becoming aware; and
(i) follow all reasonable instructions we give from time to time with regard to the use of Estia Health Connect.
2.2 You represent and warrant that you understand that Estia Health Connect is a tool to assist you and it is your own responsibility to ensure that you comply with all applicable laws, policies and procedures relevant to your use of Estia Health Connect.
2.3 You are solely responsible for the accuracy and currency of all content, material, information and other data that you enter into Estia Health Connect.
2.4 You must not infringe the rights of any other person when using Estia Health Connect. This includes that you must not upload any personal information, including any photograph or recording (whether by video or audio) of:
(a) any staff member or resident without prior authorisation from the Residence Manager; or
(b) any other person without that person's express prior consent.
2.5 We reserve the right to remove, or require you to remove, from Estia Health Connect any content that we reasonably consider infringes the privacy or other rights of any person.
2.6 We do not guarantee:
(a) that Estia Health Connect will operate in every way which you may require; or
(b) the availability, accuracy or completeness of any particular information available through Estia Health Connect.
2.7 We are not liable for any defect, delay or deficiency in Estia Health Connect caused by you using Estia Health Connect other than in accordance with these Terms.
3 Intellectual property
3.1 Nothing in these Terms shall have the effect of transferring or assigning any rights, title, ownership or interest in Estia Health Connect to you.
3.2 We grant you a limited, non-exclusive, personal, revocable, non-transferrable, non-assignable licence to use the content that we make available in Estia Health Connect solely for your use of Estia Health Connect, provided that you:
(a) keep all such content confidential;
(b) do not modify any notices or marks of origin on the content;
(c) do not publish or distribute the content outside of Estia Health Connect (you may use any functionality we make available to you to add or share content within Estia Health Connect, provided such use is in accordance with these Terms and Conditions);
(d) do not make any claim of ownership or exclusivity to the content; and
(e) comply with any other third party conditions, or any applicable laws, in respect of such use of the content.
4 Privacy
4.1 You represent and warrant that you are authorised to provide us the information and data that you provide us at any time.
4.2 All information and data that we collect from you through Estia Health Connect will be:
(a) kept private and confidential in accordance with our Privacy Policy (available at https://www.estiahealth.com.au/privacy-policy/ or upon request) and all applicable privacy laws; and
(b) used by us only for the purpose of providing Estia Health Connect to yourself and others, providing aged care to yourself (if applicable) and others, and otherwise improving the operation and functionality of Estia Health Connect and our aged care services and otherwise as provided for under our Privacy Policy.
4.3 We shall maintain:
(a) logs and records of all data to enable us to identify information including the individuals to whom any data relates, the systems on and locations at which such information is stored and the manner in which such information is stored (including whether encrypted);
(b) monitoring and audit tools to record and monitor access to data; and
(c) reasonable security safeguards to protect data in our possession or control against misuse, loss, unauthorised access, modification, disclosure, or interference.
4.4 If you cease using Estia Health Connect, we will delete your information and data, that is stored soley for the purpose of using Estia Health Connect, within a reasonable time following your ceasing to use Estia Health Connect. We may maintain such copies of your information and data as we may be required to maintain by law, or as retained in our ordinary backup and archival systems and processes. Any of your information and data that is held in our clinical and operational systems such as Health Metrics will be retained but will no longer be synced with Estia Health Connect.
4.5 Subject to clause 5.1, data shall not be transferred to a place or recipient outside of Australia nor shall any person outside Australia be allowed to have access to any data, except to the extent expressly permitted by these Terms or otherwise with your prior written consent.
4.6 Estia Health Connect has the ability to access images from your device’s gallery or camera. You will be prompted to provide your permission prior to Estia Health Connect using your images. When you provide permission for Estia Health Connect to use your selected images, those images are able to be shared with selected individuals who also use Estia Health Connect. Estia Health Connect does not have capability to share images outside the platform, however, you acknowledge that it becomes possible for those images to be shared outside Estia Health Connect once your permission to use images is granted (for example, by a person using a screenshot function).
4.7 Estia Health Connect has the ability to access contact details from your device. You will be prompted to provide your permission prior to Estia Health Connect accessing your contacts list. When you provide permission for Estia Health Connect to access your contacts you will have the opportunity to choose one or more contacts from your device contacts list and those people will be invited by SMS (text) to download Estia Health Connect and connect to you and other users of the platform
5 Third parties
5.1 You authorise us to share the information and data that you provide us to our third party service providers, for example, developers and hosting providers that we have engaged to operate Estia Health Connect. You shall not hold us responsible or liable for any malicious or negligent act or omission of any such third party service provider.
5.2 Estia Health Connect may provide links to websites and other online sources operated by third parties. You acknowledge and agree that we do not have any control over, and are not responsible or liable for, the content of any website or other online service operated by any third party.
5.3 We make Estia Health Connect available to you by agreement with the ultimate platform operator and developer, Checked In Care Pty Ltd. Checked In Care Pty Ltd may require that you accept other or additional terms to access or use Estia Health Connect. Your acceptance and compliance with such terms is solely between you and Checked In Care Pty Ltd.
6 Disclaimer
6.1 To the extent permitted by law, Estia Health Connect is provided ‘as-is’ and we expressly disclaim all warranties or guarantees of any kind, whether express, implied, statutory or arising out of the course of performance, course of dealing or usage of trade, including any warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non- infringement. You represent and warrant that you have made your own independent enquiries to satisfy yourself in the absence of any such representation, guarantee or warranty prior to using Estia Health Connect or relying on any material therein.
7 Liability
7.1 To the extent permitted by law, we shall not be liable, whether in statute, tort, equity, or otherwise, for any indirect, special, economic or other consequential loss, including but not limited to loss of revenue, loss of contract, loss of use, loss of profits, fines or penalties, or loss of opportunity, howsoever arising, even if we have been advised or ought reasonably be aware of the possibility of such loss.
7.2 To the maximum extent permitted by law, our maximum liability in relation to these Terms or Estia Health Connect is limited, per event and in the aggregate, to one month's access to Estia Health Connect or $100, whichever is the lower amount.
7.3 Nothing in these Terms excludes, restricts or modifies any applicable consumer guarantees under the Australian Consumer Law. If we are liable for a breach of any warranty implied by the Australian Consumer Law, under any other law or implied by a court, our liability is limited to the supply of the services again, or the payment of the cost of having the services supplied again, or such other remedy as is permitted under the law, whichever we (at our sole discretion) elect.
7.4 You must take reasonable steps to mitigate any actual or anticipated loss or damage you may suffer or incur. We are not responsible or liable for any loss or damage to the extent that you or a third party contributed to the liability arising (including any omission by you to take reasonable steps to mitigate your loss).
8 Indemnity
8.1 You indemnify us, our directors, officer, employees, contractors, agents, and servants, from and against any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, charge, liability, or expense (including legal costs on an indemnity basis), however arising, whether present, unascertained, immediate, future, or contingent, and whether based in contract, tort, statute, or otherwise, as a result of any:
(a) deliberate or negligent breach of these Terms;
(b) infringement of the intellectual property rights or privacy rights of a third party; or
(c) breach or infringement of any law.
9 Breach
9.1 You acknowledge and agree that any breach by you of these Terms may constitute an unlawful and unfair business practice and may cause irreparable harm to us, for which monetary damages would be inadequate, and you consent to our obtaining, in addition to any other remedies we may have in law or in equity, any injunctive or equitable relief that we deemed necessary or appropriate in such circumstances without proof of actual or anticipated monetary loss.
10 Dispute resolution
10.1 If you have a dispute with us under these Terms or in connection with Estia Health Connect for any reason, you must first provide us with written notice of the dispute including particulars of the dispute. Our authorised representatives will contact you within seven (7) days to discuss the dispute in good faith and attempt to resolve the dispute.
10.2 If our authorised representatives are unsuccessful in resolving the dispute within thirty (30) days of our receiving notice of the dispute, either of us may refer the dispute to mediation. The mediation
will be held in Sydney, Australia, before a mediator agreed between us, or, if no mediator is agreed, a mediator appointed by the President of the Law Society of New South Wales or the President’s nominee. Each of us must bear our own costs of the mediation and bear equally the mediator’s costs. Each of us may attend the mediation by video link. Each of us are entitled to legal representative at the mediation.
10.3 If the dispute remains unresolved thirty (30) days following appointment of the mediator, either of us may terminate the dispute resolution process on written notice.
10.4 You may not commence legal proceedings (except for urgent interlocutory relief) without first complying with this clause.
10.5 You acknowledge that your access to Estia Health Connect may be suspended while a dispute under this clause 10 is being resolved or if the dispute cannot reasonably be resolved within a reasonable time under this clause 10. If you are a care recipient, there will be no suspension of your care or accommodation during this time.
11 Miscellaneous
11.1 We may transfer or assign our rights or obligations arising under these Terms. Such assignment shall be effective upon written notice to you.
11.2 Any waiver of any of our rights under these Terms is not effective unless in writing and signed by us. Any failure or delay by us in exercising a right under these Terms does not constitute a waiver of our rights. Any waiver will only waive our particular rights in the particular circumstances and will not waive any of our other rights, or the same rights in other circumstances.
11.3 If any clause of these Terms is illegal, void, or unenforceable in any jurisdiction, that clause may be read down to give effect to the clause, or, if reading down the clause is not possible, the clause maybe severed for the purpose of that jurisdiction only and the surviving Terms shall continue in full force and effect.
11.4 These Terms constitute the whole of the agreement between us and sets out all our respective rights and obligations relating to the subject matter herein, and replaces all earlier representations, statements, agreements and understandings except as stated otherwise in these Terms. You acknowledge and agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in accepting these Terms.
11.5 These Terms shall be governed by the laws of New South Wales, Australia. You submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and courts competent to hear appeals from those courts.
12 Interpretation
12.1 In these Terms:
(a) headings are for convenience only and do not affect interpretation;
(b) the words ‘include’, ‘includes’ and ‘including’ must be read as if followed by the words ‘without limitation’;
(c) the singular includes the plural and the plural includes the singular; and
(d) no rule of construction will apply to any part of these Terms merely because that party drafted the clause or would otherwise benefit from it.
