WARNING NOTE: Improper use of Home Guardian products, may result in property damage, serious injury or even death. While this document and other information included with the products provide guidance on how to most safely use the products, failure to exercise due care, skill and diligence may put you at risk of property damage, serious injury or death. You must read ALL instructions and safety messages and warnings in this document.
These Terms and Conditions (the “Agreement”) describe the terms and conditions applicable to your use of our website (https://Home Guardian/), the Device, Services, and/or other electronic device(s) provided by Home Guardian.
In this Agreement, we refer to ourselves as Home Guardian or “us” or “we”; we refer to you as “you” or “Customer.” Home Guardian and Customer are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
1. THE WEBSITE
1.1 The website may consist of information, opinions, text, graphics, animations, links, audio, video, software, photos, music, sounds, and other material and data provided by Home Guardian, third parties or other users formatted, organised, and collected in a variety of forms including, without limitation, courses, bulletin board postings, databases, and electronic mail services.
1.2 The website provides information of a general nature to members of the public, and advanced features for registered users such as commenting on material or engaging in online collaboration.
USE OF WEBSITE
1.3 Breach of these terms and conditions may result in registered users access to the advanced features of the website being cancelled at the sole discretion of Home Guardian.
1.4 These terms and conditions must also be read in conjunction with the privacy information of the public aspects of the Home Guardian website.
1.5 The website, Goods and Services are available only to individuals who are at least 18 years old (and at least the legal age in your jurisdiction). You represent and warrant that if you are an individual, you are at least 18 years old and of legal age in your jurisdiction to form a binding contract, and that all registration information you submit is accurate and truthful. Home Guardian reserves the right to ask for proof of age from you and your account may be suspended until satisfactory proof of age is provided. Home Guardian may, in its sole discretion, refuse to offer the website, Goods and Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the service is revoked in those jurisdictions.
THIRD PARTY CONTENT AND LINKS
1.6 The website may include third party content which is subject to that party’s terms and conditions of use. Nothing on this website should be construed as granting any licence or right for users to use that content. Users should consult the third party’s terms and conditions of use in relation to any third party content.
1.7 The website includes links to third party websites which are not related to Home Guardian and in relation to which Home Guardian has no control or interest (save for as otherwise disclosed). Access to third party websites is entirely at your own risk and Home Guardian is not responsible or liable for the content or security of third party websites.
1.8 Home Guardian is not responsible for the accuracy of information contained on other websites accessed by links from this website and makes no warranties that the information contained on this website or any links from this website are free of infection by computer viruses or other contamination.
WEBSITE COPYRIGHT AND INTELLECTUAL PROPERTY
1.9 Material appearing on this website is subject to copyright vested in Home Guardian or third parties. All content on this website is protected by Australian and International copyright and other intellectual property laws. Users may not do anything which interferes with or breaches those laws or the intellectual property rights in the content.
1.10 Users may download, display or print a copy of material from this website only for personal, non-commercial use, or use within their own organisations provided that:
(a) the website of Home Guardian is acknowledged as the source, including the reference https://homeguardian.ai/;
(b) the material is not amended or modified in any way (including any copyright notice); and
(c) this permission is revocable at any time by Home Guardian.
1.11 All other use of the website content is not permitted without the copyright or trademark owner’s permission. Home Guardian asserts the right to be recognised as the author of the material and the right to have its material remain unaltered.
1.12 Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved.
1.13 Nothing displayed on the website should be construed as granting any licence or right to use, reproduce or adapt the Home Guardian logo without the express written permission of Home Guardian.
1.14 Requests and inquiries concerning reproduction and rights should be sent to [email protected]
1.15 The website may include third party content which is subject to that third party’s terms and conditions of use. Trade marks, brand names, product names, and company names of or related to the products appearing on this website are the property of their respective owners. Home Guardian does not claim to own any of these trademarks nor claim that Home Guardian is related to, endorsed by, or in any other way connected or associated with these companies. Nothing on this website should be construed as granting any licence or right for users to use that content. Users should consult the third party’s terms and conditions of use in relation to any third party content. External website images, if any, accessible on https://homeguardian.ai/ are used with the permission of the authors of those websites and must not be reproduced without obtaining the permission of the author of those materials.
1.16 The copyright in material appearing on websites which are linked from this website vest in the author of that material, or the author’s licensee (subject to the operation of the Copyright Act 1968 (Cth)). Home Guardian recommends that users refer to the copyright statements at those websites before making use of any material. Links to third party websites do not constitute any endorsement or approval of those websites or the owner of those websites.
1.17 If users submit content for the website or social media in any format, including text, photographs, graphics, video or audio, they grant Home Guardian an irrevocable, non-exclusive, royalty-free, perpetual licence to publish that content on the website or social media. Users acknowledge that content submitted by them may be accessible by the public through the website and through social media. Users agree that Home Guardian can use that content in any way, now and in the future. Home Guardian also reserves the right not to use or publish on the website any submitted content.
1.18 Users warrant that they have all of the necessary rights, including copyright, in the content they contribute, that their content is not defamatory and that it does not infringe any law. Users also warrant that the content they contribute complies with any relevant professional obligations.
1.19 Users waive any moral rights in their contribution for the purposes of its submission to and publication on the website.
1.20 Home Guardian does not provide any protection as against third parties to the intellectual property in any material submitted. By submitting material, users warrant that they have all necessary permissions and licences for the use of that material and agree to indemnify Home Guardian against any loss, liability, claim or demand (including legal fees) claimed by any third party arising from a breach of that warranty or these terms and conditions.
COLLABORATION SPACES AND USER SUBMITTED CONTENT
1.21 Users acknowledge that the website is created, managed, and administered by Home Guardian and may provide opportunities for registered users to post comments and collaborate with other users. However, Home Guardian is not responsible for, or adopts as a statement of its own, content posted by other users, such as comments or other material.
1.22 You are responsible for all of your activity in connection with the service. You shall not, and shall not permit any third party using your account to, take any action, or submit content, that:
(a) infringes any patent, trademark, copyright, or other right of any other person or entity;
(b) is false, misleading, or inaccurate;
(c) is unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy;
(d) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password, or other information of Home Guardian or any third party;
(e) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; or
(f) impersonates any person or entity, including any employee or representative of Home Guardian.
1.23 Users recognise that Home Guardian cannot and does not intend to screen communications in advance, nor does it exercise any control in advance whatsoever over the content of the information passing through the website submitted by users.
1.24 Notwithstanding the above, Home Guardian will monitor the content of the website from time to time and will remove any content it deems to be inappropriate or unacceptable to protect itself and users.
WEBSITE – GENERAL TERMS
1.25 These terms and conditions will be governed by and interpreted in accordance with the laws of Queensland, Australia.
1.26 Users will not use this website for any purpose or in any way which is unlawful.
1.27 In relation to any dispute arising out of the use of this website the user and Home Guardian agree to irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
1.28 The omission of Home Guardian to exercise any right under these terms and conditions will not constitute a waiver of such right unless formally waived in writing by Home Guardian.
1.29 The website may contain errors and may not be complete or current. Home Guardian reserves the right to the fullest extent allowed by law to correct any errors or omissions (including after an Order has been submitted) and to change or update information at any time without prior notice.
WEBSITE LIABILITY AND INDEMNITY
1.30 Home Guardian does not warrant the accuracy, reliability or completeness of the content on the website. The content is provided to users ‘as is’ and on an ‘as available’ basis and on the condition that users undertake all responsibility for assessing the accuracy of the content and rely on it at their own risk. All content on the website may be changed without notice.
1.31 Home Guardian will have no responsibility or liability in relation to any loss or damage that users incur, including damage to their software or hardware, arising from their use or access to this website.
1.32 Home Guardian does not warrant that functions contained in the website content, such as hyperlinks, will be uninterrupted or error free, that defects will be corrected or the server that makes it available, are free of viruses, malicious computer code or bugs.
1.33 Users indemnify Home Guardian, its directors, members, officers, employees and agents against any action, claim, loss or expense which it incurs which arises from their use of the website, including as a result of them submitting content to the website in any form.
1.34 In no event shall Home Guardian, its subsidiaries, affiliates or any of their respective officers, directors, employees, agents, successors, subsidiaries, suppliers, affiliates, or third parties providing information on this website be liable to any user of the website or any other person or entity for any direct, indirect, special, incidental, punitive, consequential or exemplary damages (including, but not limited to damages for loss of profits, loss of data, or loss of use) arising out of the use or inability to use the website, whether based upon warranty, contract, tort, or otherwise, even if Home Guardian has been advised or should have known of the possibility of such damages or losses. In no event shall the total liability of Home Guardian, its affiliates or any of their respective officers, directors, employees, agents, successors, subsidiaries, suppliers, affiliates or third parties providing information on this website to you for all damages, losses, and causes of action resulting from your use of this website, whether in contract, tort (including, but not limited to, negligence) or otherwise, exceed the amount you paid to Home Guardian in connection with the event giving rise to such liability.
1.35 The material on this website is provided for general information in summary form. The content does not constitute recommendations and should not be relied on as such.
1.36 While every care has been taken in the preparation of this material, Home Guardian cannot accept responsibility for any errors, including those caused by negligence, in the material. Home Guardian makes no statements, representations or warranties about the accuracy or completeness of the information and users should not rely on it. Users are advised to make their own independent inquiries regarding the accuracy of any information provided on this website.
1.37 Neither Home Guardian, nor its affiliates, directors, officers, employees, agents, contractors, successors or assigns will be liable for any damages, whatsoever arising out of, or in any way related to, the use of this website and any other website linked to this website. This limitation applies to direct, indirect, consequential, special, and punitive or other damages you or others may suffer as well as damages for loss of profits, business interruption or the loss of data or information.
1.38 The website may include third party content which is subject to that third party’s terms and conditions of use. Nothing on this website should be construed as granting any licence or right for users to use that content. Users should consult the third party’s terms and conditions of use in relation to any third party content.
1.39 Home Guardian is not responsible for the accuracy of information contained on other websites by links from this website and makes no warranties that the information contained on this website or any links from this website are free of infection by computer viruses or other contamination. Home Guardian disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way.
1.40 Links to third party websites do not constitute endorsement or approval of those websites or the owners of those websites.
2. THE DEVICE
2.1 Home Guardian offers to sell the Device to the Customer on the terms contained in this Agreement for the Purchase Price.
2.2 The Customer expressly acknowledges and agrees that Home Guardian makes no representations and gives no warranties that the Device provides the Customer with any functionality or is fit for any purpose unless the Customer also subscribes for the Services. For the avoidance of doubt, owning a device is a necessary prerequisite for the Customer to subscribe to the Services but it will not perform any functions or purpose without the Customer subscribing to the Services.
2.3 Goods are supplied by Home Guardian only on the terms and conditions of this Agreement to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions.
2.4 To make an Order, a Customer must follow the instructions on the website as to how to make an Order and for making changes to an Order.
2.5 Once you select a product that you wish to Order, the total Purchase Price will be displayed including Goods and Services Tax (GST) and any other charges such as any charges you are liable for in order to have the Order delivered (Delivery Fees). Unless otherwise stated all charges are in Australian dollars.
2.6 Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for payment of the Purchase Price.
2.7 You must pay for the Order in full at the time of ordering by one of the payment methods noted on the website. By selecting a payment method, you acknowledge that you are entitled to use the payment method used for purchase. The payment method must have sufficient funds, credit or other payment facilities to facilitate the purchase.
2.8 By making an Order, you expressly authorise us, before accepting your Order, to perform credit and security checks and, where we feel necessary, to transmit or to obtain information (including any updated information) about you to or from third parties from time to time, including but not limited to your credit card number, to validate your credit card, to obtain an initial credit card authorisation, to conduct loss minimisation and anti-fraud measures and to authorise individual purchase transactions.
2.9 When you place an Order, you will receive from us an Order confirmation by email/sms. This confirmation is an acknowledgement that we have received your Order only and will not constitute acceptance of your Order. A contract between us for the purchase of the Goods will not be formed until you receive a shipment confirmation email from us and we retain all rights until such time.
2.10 Home Guardian shall be entitled to decline to accept any Order and/or limit Order quantity in its sole discretion. In so declining or deciding to limit an Order, Home Guardian shall not incur any liability or obligation to the Customer.
CANCELLING AN ORDER
2.11 If we have cancelled or limited your Order before it has been accepted, we will promptly refund any payment, or part thereof, already made by you to your original payment method.
2.12 We may, in our discretion, agree upon receiving a request from a Customer, to cancel an Order.
2.13 If your package has been shipped, Home Guardian reserves the right to refuse order cancellation or to charge a cancellation fee of 20% of the Purchase Price should Home Guardian be able to request the return of the package from our delivery service.
2.14 If Home Guardian is unable to request the return of the package from our delivery service, Home Guardian will not be able to provide a cancellation of your order.
2.15 If Home Guardian has incurred costs associated with your order, Home Guardian may not be able to provide a cancellation of your order.
SHIPPING AND DELIVERY
2.16 You must provide complete and accurate details at the time of making your Order including but not limited to entering the correct delivery address and delivery instructions. You may be required to provide additional details upon our request to ensure the accuracy of your order.
2.17 We aim to deliver products to you at the place of delivery (Delivery) requested by you within the time indicated by us (or by the postage or shipping method nominated, whether provided by a third party or otherwise) at the time of your Order, but we do not guarantee Delivery dates or times. Delivery options are set on our website, and may be updated from time to time, and such information is indicative only.
2.18 We will use reasonable endeavours to update you on Delivery date or time, but, to the extent permitted by law, we will not be liable to you for any losses, liabilities, costs, damages, charges or expenses arising out of late or delayed Delivery.
2.19 Postage and shipping may be outsourced to a third party provider and as such, may be subject to such providers terms and conditions.
2.20 Where possible, Orders are delivered to the address recorded in the Order. Our delivery partners may contact you via SMS prior to delivery to provide you with delivery options, including giving ‘authority to leave’ the item at the address, or have delivery re-routed to a collection point. Alternatively, the courier may leave a card requesting your instructions on either re-delivery or collection from the carrier or a collection point.
2.21 By default, you provide authority to leave items at the address specified in your Order. If the delivery driver deems the area unsafe in their discretion, your Order will be redirected to a collection point, redelivered in the next Delivery run (where available) or returned back to our us. If Delivery or collection is delayed through your unreasonable refusal to accept Delivery or if you do not (within a reasonable time since attempted Delivery to you) accept Delivery or collect the product from the carrier, then we may (without affecting any other right or remedy available to us) do either or both of the following:
(a) charge you for our reasonable storage fees and other costs reasonably incurred by us; or
(b) no longer make the product available for Delivery or collection and notify you that we are terminating the applicable Contract, in which case we will refund to you any money paid to us in accordance with our returns policy, less our reasonable administration charges (including for attempting to deliver and then returning the product, and any storage fees and other costs provided for above).
2.22 Please note that it might not be possible to deliver to some locations, nor are we able to offer equivalent delivery options to locations that we do service. If we are unable to deliver to your location, we will inform you during the ordering process, or alternatively once your Order has been received by us.
2.23 Unless otherwise specified by you, all risk in the Goods shall pass to you upon Delivery. If Delivery is delayed, risk shall pass at the date when delivery would have occurred. From the time when risk passes to you, we will not be liable for loss or destruction of the Goods.
2.24 You must take care when opening the Goods so as not to damage it, particularly when using any sharp instruments. Home Guardian is in no way responsible or liable for any damage caused to Goods when improperly or unreasonably unpackaged.
3. THE SERVICES
3.1 Home Guardian conditionally offers to provide the Services to the Customer on the terms contained in this Agreement for the Service Fees advertised on Home Guardian’s website from time to time. For the avoidance of doubt, Home Guardian’s offer under this clause is only open to Customers who own a Device.
3.2 The Customer may accept Home Guardian’s offer to provide the Services for the Services Fees advertised on the Website by completing, and submitting, an application on the website to register for the Services.
3.3 By accepting and paying for the Services, a Customer will be entitled to access the Services for each payment period until such subscription is cancelled. The paid subscription for the Services will automatically commence on the first day nominated in the Order, and will automatically renew on a monthly or annual basis (depending on the election when submitting the application on the website to register for the Services).
3.4 The Customer warrants that it will not provide any contact details for any person to Home Guardian as their Nominated Contact unless the Customer has been authorised to provide those details to Home Guardian by the prospective Nominated Contact.
3.5 The Customer is responsible for ensuring Home Guardian has accurate and current information, including current contact and payment information. The Customer is further responsible for regularly reviewing the email account used for signing up for the Services with Home Guardian for any communications from Home Guardian.
3.6 You acknowledge and agree that at times the Services may be inaccessible or inoperable for any reason whatsoever, including, without limitation:
(a) equipment malfunctions;
(b) periodic maintenance procedures or repairs which Home Guardian may undertake from time to time with or without notice to you; or
(c) causes which are beyond the control of Home Guardian or which are not reasonably foreseeable.
3.7 From time to time, Home Guardian may develop Software Updates, upgrades, patches and other modifications to improve the performance of the Services and/or the Goods or for other reasons in our sole discretion. You agree that Home Guardian may automatically install the Software Updates and similar without providing any additional notice to you or receiving any additional consent from you.
3.8 If you have a legacy Home Guardian product, some of the features and limits that apply to that product may be different than those that appear in the current Home Guardian Device and/or Service description. If you determine that you are using a legacy product and would like to upgrade to a current Device, you must execute a new Order.
3.9 If any additional features become available from time to time, the Customer may subscribe to such additional features of the Services by placing an additional Order or activating the additional features from the Home Guardian website or from any link provided by Home Guardian (if this option is made available by Home Guardian). Unless otherwise specified, this Agreement will apply to all additional features that the Customer activates.
4. USAGE AND IMPORTANT INFORMATION THE DEVICE IS NOT A MEDICAL DEVICE
4.1 You acknowledge that our Goods and Services are not intended for a third-party monitored emergency notification system and that we do not monitor emergency notifications and will not dispatch emergency authorities to your home in the event of an emergency. Home Guardian makes no warranty or representation that use of the Goods or Services will affect or increase any level of safety. You acknowledge that the Goods and Services are not intended to be 100% reliable and are not a substitute for a third-party monitored emergency notification system. Home Guardian cannot, and does not, guarantee that you will receive notifications in any given timeframe or at all. All life threatening, safety and emergency events should be directed to the appropriate response services.
4.2 Home Guardian does not and cannot guarantee that the Services will identify all Alert Events in the proximity of the Device at all times.
4.3 The effectiveness of the Device and Services is highly dependent upon the Device being placed in accordance with the Device installation instructions (made available with the Device) to ensure that the Device has the necessary vision to provide coverage for a room.
4.4 The Device must be kept in a dry location with temperatures not less than minus ten (-10) degrees Celsius and not exceeding fifty (50) degrees Celsius.
4.5 The Device is reliant upon having access to a LTE/GSM mobile network to send alerts to Home Guardian’s server and will not be appropriate for homes outside the coverage of a LTE/GSM mobile network. The Customer must ensure that the Device is placed in a position where the device will have access to a LTE/GSM mobile network.
4.6 Home Guardian is not liable in any way for any loss, damage or compensation, either directly or indirectly caused, resulting from the Device being unable to access a LTE/GSM mobile network as a result of the device being placed in a position without access to a LTE/GSM mobile network or as a result of the Device being unable to access a LTE/GSM network for any other reason outside of the control of Home Guardian, including but not limited to any outages of the LTE/GSM network.
4.7 The Device may produce Alerts that indicate that an Alert Event is detected in circumstances where no Alert Event has occurred (False Alert) due to the limitations of using an artificial intelligence program to provide real time monitoring. The Nominated Contact must take reasonable steps to confirm that an Alert is not a False Alert before taking any action in reliance on that Alert, including but not limited to taking steps to contact the Customer prior to notifying emergency services.
4.8 Home Guardian is not liable for any loss, damage or compensation, whether directly or indirectly caused, resulting from the Nominated Contact relying upon a False Alert, including but not limited any fees or charges resulting from the Nominated Contact contacting emergency services in relation to a False Alert.
PROHIBITED AND UNAUTHORIZED USE
5. PAYMENTS AND SUBSCRIPTION SERVICE PAYMENTS GENERALLY
5.1 The Customer acknowledges and agrees to the following payment terms:
(a) The Purchase Price for the Device is payable at the time the Customer accepts Home Guardian’s offer to sell the Device on a one-off payment basis; and
(b) the Service Fees are payable on a subscription basis:
(i) monthly in advance on the first day of the month; or
(ii) annually in advance on the anniversary of date on which the Customer signed up for the Services, (each a “Payment Due Date”).
5.2 The Customer must at the time of initial purchase nominate a preferred payment method selected from the following options:
(a) credit card;
(b) direct debit; or
(c) on invoice.
5.3 The Customer may at any time change their preferred payment method by notifying Home Guardian of that change in their account settings.
5.4 If your preferred payment method is selected as being on invoice, prior to any Payment Due Date, Home Guardian will issue to you a Tax Invoice for the Service Fees payable for the next subscription period (either one month or one year) specifying the details of the Customer, the Service Fees payable and a brief description of the Services to be provided during the next subscription period.
5.5 The Tax Invoice issued to you under clause 5.4 is due for payment prior to the Payment Due Date whereupon if payment of the Tax Invoice is not received by Home Guardian, your access to the Services will be suspended until such time as payment of the Service Fees is actually received by Home Guardian.
5.6 Payment of any Tax Invoice shall be in accordance with the methods provided for on the relevant Tax Invoice and you acknowledge and agree that any payment method may change or the details of that payment method may change at any time and without prior notice to you and you are solely responsible for ensuring payments are processed correctly.
AUTHORITY TO CHARGE
5.7 If you are paying for the Services by credit card or direct debit, you authorise us to charge your credit card or bank account for such nominated payment. You further authorise us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
SUBSCRIPTION FOR THE SERVICES
5.8 Unless you opt out of auto-renewal for the Services, which can be done through your account settings on the website by removing your payment information or by contacting us, the Services will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected (ie monthly or annually), at the then-current non-promotional rate of the Service Fees as noted on the website.
5.9 All Service recipients must maintain at least one valid payment method for payment of Service Fees. The Service Fees will be charged or debited from the saved, designated payment method. You acknowledge that Service Fees have a recurring payment feature and you accept responsibility for all recurring charges prior to termination of the Service.
5.10 Non-termination or continued use of the Services reaffirms that we are authorised to charge your payment method for the Services.
5.11 To change or discontinue the Services at any time, go to account settings on our website or contact us.
5.12 If you terminate the Services, you may use the Services until the end of your then-current term and your subscription will not be renewed after your then-current term expires. Where you terminate the Services, we will not issue a refund (prorated or otherwise) of any portion of the Service Fees paid for the then-current subscription period.
5.13 Nothing in this clause waives our right to seek payment directly from you.
STORAGE OF PAYMENT INFORMATION
6. Goods and Services Tax (If applicable)
6.1 Words defined in the GST Law have the same meaning in this clause 6, unless the context makes it clear that a different meaning is intended.
6.2 Where the Service Fees (or other consideration payable in relation to the taxable supply) is not expressed to be GST inclusive, the recipient of a taxable supply must, subject to the issue of a valid Tax Invoice by the supplier to the recipient or creation of a valid Recipient Created Tax Invoice by the recipient (as the case may be), pay to the supplier in addition to the Service Fees or other consideration payable an additional amount on account of any GST payable.
6.3 In circumstances where there is an adjustment event under the GST Law, the party which issued the Tax Invoice or the Recipient Created Tax Invoice (as the case may be) must promptly create an adjustment note for any overpayment or underpayment and, where applicable, the supplier must apply to the Commissioner of Taxation for a refund of any overpayment by the supplier for GST. The supplier must refund to the recipient any such overpayment except that the supplier need not refund to the recipient any amount for GST paid to the Commissioner of Taxation unless the supplier has received a refund or credit for that amount. The recipient must pay the supplier an amount equal to any underpayment of GST.
(a) a payment to satisfy a claim under or in connection with this agreement (for example, under an indemnity) gives rise to a liability to pay GST then the payer must pay, and indemnify the payee on demand against, the amount of that GST; and
(b) a party has such a claim for a cost or expense on which that Party must pay GST, then the claim is for the cost plus all GST (except any GST for which that party can obtain an input Tax credit).
7. REFUNDS AND RETURNS
7.1 Full terms and conditions of our Returns Policy can be found at https://Home Guardian/returns-policy/ or by contacting us.
8. COMPETITION AND CONSUMER ACT 2010 (CTH)
8.1 Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA, except to the extent permitted by the CCA.
8.2 Where the provisions of the CCA apply, the provisions of these Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in the website, the Services, the Device and our Software are the exclusive property of Home Guardian or its licensors. All Intellectual Property Rights that subsist in third party software are the property of and are reserved to third party licensors. Such licensors may be the relevant author or the publisher.
9.2 Home Guardian reserves all Intellectual Property Rights, including but not limited to copyright in the material, content and Services provided by Home Guardian.
9.3 Nothing in this Agreement provides the Customer with the right to copy or use, including but not limited to, any digital content, trademarks, marketing material, logos, domain names, and brands owned or licensed by Home Guardian.
9.4 Subject to the terms and conditions of this Agreement, you are granted a limited non-exclusive license to use the Device (including but not limited to any intellectual property subsisting in the Device, such as the subject matter of any patent or similar held by Home Guardian) for the sole and express purpose of enabling you to receive the Services from Home Guardian. This License does not grant you any rights to use any other intellectual property owned by Home Guardian for any other purpose, including but not limited to using the Device for any purpose other than to receive the Services from Home Guardian.
9.5 Subject to the terms and conditions of this Agreement, you are granted a limited non-exclusive license to use the Software for the sole and express purpose of using the Device in conjunction with the Services. This License does not grant you any rights to use Home Guardian proprietary interfaces or any other intellectual property owned by Home Guardian for the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with Device. This licence does not grant you any rights to use any other intellectual property owned by Home Guardian for any other purpose, including but not limited to using the Software for any purpose other than to receive the Services from Home Guardian.
9.6 Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by Home Guardian for your model of the Device to update or restore the software on any such Device that you own or control. This License does not allow you to update or restore any Device that you do not control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
9.7 This Licence expressly prohibits you from modifying or altering the Software Updates in any way.
9.8 You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Device, the Services, the Software and/or any services provided by the Device, the Services or the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Device, the Services or the Software). You agree not to remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Device, the Services or the Software.
9.9 If you provide any communications or materials to Home Guardian by mail, email, telephone, or otherwise, suggesting or recommending changes to the Device, Services or similar, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (Feedback), you acknowledge that Home Guardian may, without any further notice to you, use such Feedback, irrespective of any other obligation or limitation between the Parties governing such Feedback. You acknowledge that Home Guardian may in its discretion use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
10.3 Home Guardian may retain any data to which the Customer are entitled but leave in our possession (except documents deposited in safe custody) for no more than seven (7) years and on the undertaking that Home Guardian have the Customer’s authority to destroy the file seven (7) years after the date of the final Tax Invoice rendered by Home Guardian.
10.4 We may, as permitted by this Agreement, use Customer data in an anonymized manner for machine learning to support certain product features and functionality within the Services.
10.6 We can contact you by:
(a) writing to you at the postal address you most recently provided to us;
(b) emailing you at the email address you most recently provided to us; (c) publishing a notice on our website in a portal accessible by you; or
(d) sending you an SMS or contacting you via the telephone number you most recently provided to us.
10.7 If we need to give you notice under this Agreement, we will do so by using one (or a combination) of the above methods.
10.8 You must promptly notify us of any changes to your contact details.
11. DISPUTE RESOLUTION
11.1 If a dispute arises between the Parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
11.2 Any Party claiming that a dispute exists must notify the other Party to the dispute (Second Party) in writing of the nature of the dispute.
11.3 If the dispute is not resolved by Agreement within five (5) Business Days of the Second Party receiving the notice referred to in paragraph (2) above, either Party may refer the matter to mediation conducted by a mediator agreed between the Parties within a further five (5) Business Days or failing Agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator shall be borne equally between the disputing Parties. The chosen mediator shall determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
11.4 If the Parties have not mediated a resolution of the dispute within ten (10) working days of the selection of a mediator, neither Party shall be obliged to continue any attempt at mediation under this clause, and either Party may then commence such legal proceedings as it thinks fit in relation to the dispute.
12.1 This Agreement may be terminated by either Party in writing to the other. Termination will be effective from 11:59PM on the last day of the month in which the written termination is received by the non-terminating Party or as otherwise specified in this Agreement.
12.2 Upon termination of this Agreement by either Party, the Customer will remain liable for any payment liabilities (including Service Fees, disbursements and expenses) incurred or payable pursuant to this Agreement.
12.3 The Customer must not set off, make deductions to or refuse to pay any payment liabilities incurred pursuant to this Agreement.
12.4 If the Customer fails to perform any of the Customer’s obligations under this Agreement, Home Guardian may elect to:
(a) suspend performance of their obligations under this Agreement, which includes suspending the Services, until the Customer has rectified such failure; or
(b) immediately terminate this Agreement by written notice, without providing for any notice period that would otherwise apply. Home Guardian will give the Customer notice of their intention to terminate the Agreement, setting out the grounds on which the notice is based.
12.5 The following circumstances constitute a failure by the Customer to perform their obligations under this Agreement:
(a) if the Customer fails to pay Service Fees as required from time to time; or
(b) for other just cause, determined at the sole discretion of Home Guardian.
13.1 SUBJECT TO THE AUSTRALIAN CONSUMER LAW, YOU USE THE GOODS AND SERVICES AT YOUR OWN RISK. YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH YOUR USE OF THE SERVICE, AND YOU AGREE TO HOLD HOME GUARDIAN HARMLESS FROM, AND YOU COVENANT NOT TO SUE FOR, ANY CLAIMS (EXCEPT THOSE PERMITTED UNDER THE AUSTRALIAN CONSUMER LAW) BASED ON YOUR USE OF THE GOODS OR SERVICES, INCLUDING CLAIMS FOR LOST DATA OR CONTENT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF THE PRODUCT OR SERVICES.
13.2 OTHER THAN ANY GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW, HOME GUARDIAN PRODUCTS AND SERVICES ARE PROVIDED ‘AS IS,’ AND HOME GUARDIAN DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. HOME GUARDIAN DOES NOT IN ANY WAY GUARANTEE THE QUALITY, DATA CONTENT OR LEGALITY OF INFORMATION, CONTENT, GOODS OR SERVICES THAT ARE TRANSFERRED, RECEIVED, PURCHASED OR OTHERWISE MADE AVAILABLE OR OBTAINED BY WAY OF THE HOME GUARDIAN WEBSITE OR THE SERVICES. EXCEPT AS SET FORTH IN ANY GUARANTEES YOU MAY BE ENTITLED TO UNDER THE AUSTRALIAN CONSUMER LAW. HOME GUARDIAN DOES NOT WARRANT THAT HOME GUARDIAN PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
13.3 UNDER NO CIRCUMSTANCES (EXCEPT AS OTHERWISE CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW), INCLUDING NEGLIGENCE, SHALL HOME GUARDIAN BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM THE DISTRIBUTION OR USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THIS WEBSITE, THE GOODS, OR THE SERVICES IRRESPECTIVE OF NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATIONS OF LIABILITY
13.4 EXCEPT AS OTHERWISE PROVIDED BY THE AUSTRALIAN CONSUMER LAW, IN NO EVENT SHALL HOME GUARDIAN’S TOTAL LIABILITY TO A CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY THAT CUSTOMER, IF ANY, FOR THE GOODS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
13.5 HOME GUARDIAN DISCLAIMS ALL LIABILITY OF OR ASSOCIATED WITH ITS LICENSORS AND SUPPLIERS.
13.6 TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROVIDED BY THE AUSTRALIAN CONSUMER LAW, UNDER NO CIRCUMSTANCES WILL HOME GUARDIAN BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, GOODS OR SERVICES.
14. BAR TO PROCEEDINGS
14.1 This Agreement may be pleaded by the Parties as a full and complete defence to any claim, suit or other action in relation to the subject matter herein.
15.1 The Parties acknowledge and agree that the relationship between them is a contractual one for the provision of good and/or services, and that this Agreement does not and is not intended to create any other relationship at law, including one of employer/employee, principal/agent or fiduciary relationship.
16.1 A waiver by any Party of any right arising from a breach of this Agreement must be in writing and signed by the Party granting the waiver.
17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement is governed by and must be construed according to the laws of:
(a) Queensland, Australia; or
(b) if not possible, Australia.
17.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of, or exercising jurisdiction in, Queensland, or if not possible, Australia, with respect to any claim, suit or action which may be brought at any time and relating in any way to this Agreement.
18.1 Home Guardian may amend any term of this Agreement in its unfettered discretion from time to time by providing the Customer with email notice that the terms of this Agreement have been amended. If the Customer continues to use the Services after receiving notice that the terms of this Agreement have been amended, the Parties agree that the Customer’s conduct in continuing to use the Service after receiving notice of the amendments shall be deemed to constitute acceptance to be bound by the amended terms and conditions. If the Customer does not wish to continue using the Services in light of the amendments to the terms of this Agreement, they may terminate the Agreement pursuant to the provisions of this Agreement.
19.2 The Customer warrants that they have entered into this Agreement without relying on any representation whatsoever by Home Guardian, its directors, officers, agents, employees and any other person purporting to represent or be associated with Home Guardian.
19.3 Home Guardian may assign, novate or transfer this Agreement and the Services, or any part thereof, to any third party, including our related bodies corporate worldwide, without requiring the Customer’s consent. The Customer may not assign this Agreement in whole or in part for any reason.
19.4 If all or part of a provision of this Agreement is void, voidable, unenforceable or illegal for any reason but would not be if it were read down (and it is capable of being read down), the provision will be read down accordingly. In the event that the provision is not capable of being read down, that provision shall be severed from the Agreement and the remainder of the Agreement will continue to be valid and enforceable.
19.5 Termination of this Agreement will not end those provisions that are capable of surviving the termination of this Agreement.
19.6 Any notice or Tax Invoice pursuant to this Agreement may be delivered by hand, by prepaid letter or email to the address details provided for each Party. Any such notice will be deemed to have been served when delivered (if delivered by hand) or forty-eight (48) hours after posting (except by prepaid letter) or if sent by email, when the email enters the recipient’s mail server (unless an out of office or similar notification is received).
20.1 In this Agreement, unless the context requires otherwise:
• Agreement means the Agreement constituted by these terms and conditions, and any other written terms and conditions relating to the supply relationship between the parties which are agreed by both parties.
• Alert means an SMS message sent to the Nominated Contact by Home Guardian to notify the Nominated Contact that the Device has detected Alert Event.
• Alert Evert means the detection by of an abnormal spatial orientation of an object, which the Device identifies as a human, by the Device using its visual sensors.
• Business Day means a day that is not a Saturday, Sunday or public holiday on the Gold Coast, in the State of Queensland, Australia.
• CCA means the Competition and Consumer Act 2010 (Cth).
• Customer shall mean the customer (or any person acting on their behalf or with their authority) purchasing the Device from Home Guardian and/or engaging Home Guardian to provide the Services.
• Device means the Home Guardian Artificial Intelligence Driven Fall and Behavioural Analysis device, as updated from time to time.
• Goods shall mean goods supplied by Home Guardian to the Customer (and where the context so permits shall include any supply of Services) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Home Guardian to the Customer.
• Group means Home Guardian, its ultimate holding company and any subsidiary of Home Guardian or its ultimate holding company from time to time.
• GST means the same as in GST Law.
• GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Home Guardian means Home Guardian Pty Ltd (ACN 636 679 224) of 9C, 23 Main Street Varsity Lakes in the State of Queensland 4227, being a company incorporated under the provisions of the Corporations Act 2001 (Cth).
• Intellectual Property Rights means all present and future rights owned by the Group or licenced to the Group, including without limitation any copyright, trade marks, designs, patents, and other intellectual property rights.
• Nominated Contact means the person(s) who the Customer nominates using the customer portal on the Website as their emergency contact(s) in the event an Alert Event is detected by the Device.
• Order means the Customer’s order of Goods.
• Parties means Home Guardian and the Customer collectively, and a Party means either one (1) of them.
• Purchase Price means the purchase price of the Device as advertised by Home Guardian from time to time on the website.
• Services means an Alert Event warning system that utilises the Device/s to monitor a room that the Device is placed in for persons who have an Alert Event by using an artificial intelligence program to detect persons who have experienced an Alert Event within the sight of the Device and to send an alert to the Nominated Contact of the Customer in the event that an Alert Event is detected. The Services includes the following:
o Providing the Device with telecommunication connectivity whilst the Services are ongoing;
o Utilising Home Guardian’s proprietary software and infrastructure to receive alerts from the Device; and
o Transmitting Alerts received from the Device to the Customer’s Nominated Contact.
• Service Fees means the amount specified on the Website from time to time to be paid per month (or as a lump sum on an annual basis) for the Services.
• Software means any and all software comprising part of the Device and/or the Services, subsisting within the Device and/or the Services or otherwise being made available by Home Guardian to you in connection with the Device and/or the Services.
• Software Updates means any software that modifies, amends, updates or otherwise alters the Software.
• Tax Invoice means the tax invoice issued by Home Guardian to the Customer in accordance with the GST Law.
• Website means https://homeguardian.ai/.
21.1 In this Agreement:
(a) headings are for reference only and do not affect the meaning of this Agreement;
(b) the singular includes the plural and vice-versa;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) an Agreement, representation or warranty:
(i) in favour of two (2) or more persons is for the benefit of them jointly and severally; and
(ii) on the part of two (2) or more persons binds them jointly and severally;
(e) a reference to:
(i) a document includes any variation or replacement of it and all its schedules, annexures and exhibits the document;
(ii) a law includes regulations and other instruments under it and amendments or replacements of any of them;
(iii) a thing includes the whole and each part of it;
(iv) a group of persons includes all of them collectively, any two (2) or more of them collectively, and each of them individually;
(v) a reference to “$” is a reference to Australian currency;
(vi) all reference to dates and times are to Gold Coast Queensland, Australia dates and time; and
(vii) “including” when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.