Terms & Conditions

1. General

1.1 The MDMW App and the Services made available through the MDMW App is created, operated and controlled by My Day My Way Pty Ltd (ACN 683 337 573) (MDMW, we, us or our).

1.2 By downloading, accessing and using the MDMW App and the Services, you acknowledge that you have read, understood and accept the MDMW App User Terms and Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If you do not accept this agreement, you must not download, access and use the MDMW App and Services.

1.3 In this agreement, Account Holder, you and your means the person, who downloads, accesses or uses the MDMW App and who creates an account on the MDMW App.

2. MDMW App

2.1 The MDMW App is a communication tool made available through a mobile application that facilitates communication between the Account Holder and Authorised Users (such as carers and family members) to keep you informed about the care arrangements impacting their family members who are in need of care and support (collectively, the Services). Our role in providing you with access and use of the MDMW App and the Services should be construed strictly in this context only.

2.2 By downloading, accessing and using the MDMW App, MDMW grants you and your Authorised Users a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the MDMW App and the Services for the Subscription Term solely for personal and non-business purposes. You and your Authorised Users will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.

3. Subscription Term

3.1 This agreement will commence on the date you download and access the MDMW App (Commencement Date) and shall continue until terminated in accordance with clause 15 (Subscription Term), unless you terminate the agreement during the Trial Period in accordance with clause 3.2.

3.2 If you do not wish to continue to access and use the MDMW App and Services following the expiry of the Trial Period, you must terminate the agreement prior to the expiry of the Trial Period by selecting the ‘cancel subscription’ function within the manage subscription page of the MDMW App and delete your Account by selecting the ‘Delete Account’ function in the Accounts Settings page of the MDMW App.

4. Registration and Access

4.1 To access and use the MDMW App, you must create an account with us (Account). If you create an Account via the MDMW App, you must:

• •create a username (User Name) and password (Password). You can change your User Name and Password at any time by you accessing the ‘Settings’ function on the MDMW App. When you setup your Account, you must provide us with accurate registration information and Personal Information (such as your full name, email address and date of birth) and you must provide our Third-Party Payment Processors with your payment details. All Personal Information as well as the information you provide to us to setup your Account is subject to our Privacy Policy; and
• •be over 18 years of age, and legally able to enter into contractual relations. If you are under the age of 18 years, you must not access and use the MDMW App and the Services. Your continued use of the Account constitutes an acknowledgement by you that you are over 18 years of age. We reserve the right to ask for proof of age from you and your Account may be suspended until satisfactory proof of age is provided.

4.2 At any time during the Subscription Term, the Account Holder may invite an Authorised User to access and use the MDMW App and Services via the ‘Build Your Care Team’ function. You may invite an Authorised User by sending the Authorised User an email or text message containing an activation hyperlink to the MDMW App.

4.3 Once the Authorised User has clicked on the hyperlink, the Authorised User will:

• •be instructed to download the MDMW App; and
• •once the MDMW App has been downloaded onto their device, the Authorised User can access the MDMW App once they accept the pending invitation on the home screen of the MDMW App.

4.4 The access rights an Authorised User has to the MDMW App and Services will depend on whether the Authorised User is a Carer User or View Only User. Authorised Users will have the following access rights:

• •(c) a Carer User will be able to create, edit, upload, download, access and view User Content on or via, the MDMW App; and
• •(d) a View Only User will only be able to access and view User Content made available to them by you and/or other Authorised Users on or via, the MDMW App.

4.5 The number of Authorised Users you can invite to access and use the MDMW App will depend on the subscription plan you purchase from us. If, at any time, you downgrade from a premium subscription plan to a basic subscription plan, the MDMW App will automatically delete your latest pending invites and latest Authorised Users until the number of Authorised Users you have matches the maximum number of Authorised Users permitted under the basic subscription plan.

4.6 You are responsible for:

• •maintain control over, and the confidentiality of, your User Name and Password;
• •all activities that occur through the use of your Account, and MDMW is not responsible or liable for any Loss due to a misused, stolen or hacked Account or Password;
• •notifying us in writing of any unauthorised access to, or use of, your Account or Password; and
• •keeping your Account and registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the MDMW App and the Services.

4.7 You acknowledge and agree that:

• •you can revoke or change an Authorised User’s access at any time and for any reason (such as when a Carer User ceases to be a carer for the support person) or for no reason at all, by using the ‘remove user’ function in the MDMW App, in which case that person will cease to be an Authorised User;
• •if there is any dispute between you and an Authorised User regarding access to the MDMW App or use of the Services, you shall decide whether the Authorised User shall have access to the MDMW App; and
• •all User Content posted or published on the MDMW App by an Authorised User will only be removed or deleted from the MDMW App when the agreement with the Account Holder is terminated.

4.8 MDMW has the right to suspend or terminate your Account or your (or any Authorised User’s) access or use of all or any part of the MDMW App and/or the Services, at any time, if, in our opinion, you (or any of your Authorised Users) have failed to comply with any of the provisions of this agreement.

5. Your Obligations

5.1 When accessing and using the MDMW App during the Subscription Term, you must:

• •download the MDMW App onto their mobile phones or other devices;
• •obtain and maintain all hardware, software and communication equipment necessary to access, and use the MDMW App and the Services;
• •comply with all Relevant Laws with respect to your obligations under this agreement; and
• •comply with all our directions, policies and guidelines, advised in writing to you from time to time (including our Acceptable Use Policy).

5.2 We will not be liable to you, any Authorised Users or anyone else if, for any reason, the MDMW App or the Services are unavailable at any time or for any period. From time to time, we may the suspend or restrict access to all, or some parts of the MDMW App and/or the Services. You are also responsible for ensuring that all Authorised Users are aware of this agreement, and that they comply with them.

5.3 You must not:

• •introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the MDMW App;
• •violate any MDMW IP or any third-party Intellectual Property Rights;
• •copy, modify, duplicate, create, derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the MDMW App, or any other third-party software that you may access or use through the MDMW App, in any way;
• •download or access all or any part of the MDMW App and/or the Services in order to build a product, service or code which competes or reproduces the MDMW App and/or the Services (in full or part);
• •data mine the MDMW App or modify, alter, adapt, reverse, compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the MDMW App in any way, or otherwise learn the source code or algorithms underlying the MDMW App;
• •license, sell, rent, lease, transfer, assign or otherwise commercially exploit the MDMW App and/or the Services; and
• •use the MDMW App to engage in any activity or conduct that is in breach of any Relevant Laws.

6. User Content

6.1 When you create your Account (and when you invite an Authorised User to use the MDMW App) and each time you (and your Authorised Users) access and use the MDMW App, you (and your Authorised Users) will be required to provide us with User Content. You will retain ownership of your User Content, and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Content. To the maximum extent permitted by Relevant Laws, we do not warrant that User Content displayed or published on the MDMW App by you, or any of your Authorised Users (or any Third Party Content displayed or published on the MDMW App by a third party) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any products, services, User Content or Third Party Content displayed on, or via, the MDMW App. We make no representations or warranties that use of the User Content or Third-Party Content will not infringe any third party’s Intellectual Property Rights.

6.2 We disclaim all liability and responsibility arising from any reliance placed on such User Content or Third-Party Content. You and your Authorised Users (and not MDMW) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you and your Authorised Users on, or via, the MDMW App.

6.3 For the Subscription Term, you grant MDMW a worldwide, non-exclusive, royalty-free, sub-licensable and transferrable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the User Content (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:

• •enabling MDMW to provide the MDMW App and the Services to you (and your Authorised Users) and otherwise perform our obligations and exercising our rights under this agreement;
• •informing you and each Authorised User about other products or services that MDMW may offer from time to time or in relation to third party products and/or services offered by us, our Affiliates or our third party providers;
• •complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;
• •using usage patterns, trends, and other statistical or behavioural data derived from use of the MDMW App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the MDMW App, or our other products and services; and
• •sharing User Content with an Affiliate or other third party (with whom MDMW may contract or be affiliated with from time to time) for the purposes of performing or improving the MDMW App and/or the Services.

6.4 In the event of any Loss to User Content, your sole and exclusive remedy shall be for MDMW to use reasonable endeavours to restore the User Content, that is lost or damaged, from the latest back-up of User Content maintained by MDMW in accordance with our standard archiving and backup procedures.

6.5 MDMW App shall not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Content caused by MDMW, your acts or omissions or the acts of omissions of your Authorised Users or other users of the MDMW App or any third party.

6.6 You agree to make your own enquiries to verify information displayed on, or via, the MDMW App (including User Content and Third-Party Content) and to assess the suitability of any information before relying upon such information. If you or your Authorised Users choose to rely upon any information displayed or listed on, or via, the MDMW App and/or the Services (including User Content and Third-Party Content) you (and your Authorised Users) do so at their own risk.

7. Acceptable Use Policy

7.1 By downloading, accessing and using the MDMW App and each time you (and your Authorised Users) publish, upload, submit, post or share User Content on, or via, the MDMW App, you agree (and you must ensure that your Authorised Users agree) to comply with the rules for the acceptable use of the MDMW App as specified herein (Acceptable Use Policy).

7.2 You (and your Authorised Users) are solely responsible for the accuracy, currency, completeness and use of User Content published, submitted or posted by you (and your Authorised Users) on, or via, the MDMW App, and you (and your Authorised Users) post or publish User Content on, or via, the MDMW App at your own risk. MDMW accepts no responsibility and assumes no liability for any User Content posted, published or otherwise transmitted by you, Authorised Users, any other user of the MDMW App or any Third Party Content posted or published by any third party on, or via, the MDMW App.

7.3 MDMW is under no obligation to monitor, review, or otherwise control the Services or any User Content published or posted on, or via, the MDMW App by you, your Authorised Users, any other user of the MDMW App or any third party. However, MDMW reserves the right (whether in response to a complaint or at our own initiative), but is not obligated to edit, remove or refuse to edit or remove any User Content or Third-Party Content published, posted or otherwise made available on, or via, the MDMW App.

7.4 You must access and use the MDMW App and the Services only for lawful purposes. You must not access and use the MDMW App and/or the Services:

• •in any way that breaches any Relevant Laws;
• •in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
• •to publish, post or upload User Content that is intended to harm someone in any way or that is libellous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist, harassing, threatening, seditious, violent, blasphemous, invasive of privacy or publicity rights, breaches confidentiality, abusive, inflammatory, discriminatory or otherwise objectionable to a reasonable person;
• •to engage in any kind of activities or statements that are harmful to users of the MDMW App or any other person (including, but not limited, to publishing images or videos of children on the MDMW App without parental or guardian consent and you must not publish or post inappropriate or sexualised images or videos of children on the MDMW App);
• •to publish, post or upload any User Content that is false, misleading or deceptive or is likely to be false, misleading or deceptive (including, but not limited to, impersonating another person or user or misrepresenting your identity to users of the MDMW App);
• •to upload or transmit any User Content that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or a similar type of computer code designed to adversely affect the operation of any computer software or hardware;
• •to publish, post or upload User Content that may infringe the Intellectual Property Rights or other rights of MDMW or any third party;
• •to promote any illegal activity or advocate, promote or assist any unlawful act;
• •to publish, post or upload any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); and
• •to lodge a complaint or report through the MDMW App about another user’s User Content that is maliciously or intentionally false or misleading.

7.5 By accessing or using MDMW App and/or the Services, you acknowledge that it is your responsibility to:

• •ensure that all of your communications with Authorised Users’ of MDMW App are polite, respectful and courteous;
• •ensure that any User Content posted or transmitted through the MDMW App by you or your Authorised Users is appropriate, accurate, reliable, up-to-date, and complete; and
• •ensure that you (or your Authorised Users) have adequate legal rights to publish, post, transmit, reproduce or otherwise use the User Content transmitted through the MDMW App.

7.6 MDMW reserve the right, at our absolute discretion, to determine whether the Acceptable Use Policy has been breached and to terminate this agreement in accordance with clause 15.

8. Subscription Fees

8.1 We do not charge you a fee to download the MDMW App and to use the basic functions and features of the MDMW App. However, if you wish to access premium functions and features the MDMW App and Services (such as inviting Authorised Users to access and use the MDMW App), you must, except during the Trial Period, pay us the Subscription Fees and other amounts owing to us under this agreement during the Subscription Term. The Subscription Fees depend on the subscription plan you purchase and are payable to us in advance (either on a monthly or annual basis) in accordance with the Direct Debit Authority.

8.2 All Subscription Fees are in Australian Dollars and are inclusive of any goods and services taxes. To the maximum extent permitted by Relevant Laws and except as otherwise contemplated in this agreement, the Subscription Fees and all other amounts owing to MDMW under this agreement are non-refundable.

8.3 When setting up your Account, you will be offered payment options to pay the Subscription Fees. MDMW may, at our absolute discretion and without notice to you, change the payment method that can be used to access and use the MDMW App and Services at any time.

8.4 Payment of the Subscription Fees and all other amounts owing to MDMW under this agreement are made by means of direct debit in accordance with the Direct Debt Authority in clause 9. By making payment of the Subscription Fees or any other amount owing to MDMW under the agreement, you will provide our Third-Party Payment Processor with accurate and complete billing information, and you authorise our Third-Party Payment Processor to access your billing information (including Personal Information) for the purpose of processing your payment.

8.5 MDMW may increase our Subscription Fees for the provision of the MDMW App or charge additional fees to access new functions or features of the MDMW App at any time upon 14 days’ written notice to you. The fee increases will come into effect in the next billing cycle. If you do not agree to these fee increases, you may terminate this agreement by written notice to MDMW no later than 14 days after the date you received written notice of the fee increases.

9. Direct Debit Authority

9.1 By accepting this agreement, you authorise our Third-Party Payment Processors to debit from your credit card or bank account (as applicable) the Subscription Fees (or any other amount owing to MDMW under this agreement) as and when such fees are due and payable under this agreement (Direct Debit Authority).

9.2 You may cancel or change your Direct Debit Authority by accessing ‘subscription’ page on the MDMW App before the day on which your next debit is due. If you cancel the Direct Debit Authority, MDMW will not be able to provide you with access to, and use of, the MDMW App and Services beyond the current billing cycle, unless you provide MDMW with a new Direct Debit Authority.

9.3 It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:

• •the transaction will be rejected, and the payment will be treated as if it were never made;
• •your financial institution may charge you a fee and/or interest; and
• •you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that our Third Party Payment Processors can process the debit.

9.4 It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.

9.5 If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should update your credit card or bank account details by accessing the as soon as possible.

9.6 If you cancel the Direct Debit Authority, your right to access and use the premium functions and features of the MDMW App and Services will cease at the end of the current billing cycle. If you wish to resubscribe, you will need to create a new Account or re-active your existing Account and pay the Subscription Fees prevailing at the time.

10. Intellectual Property Rights

10.1 You acknowledge that we, or our licensors, are the owners of the MDMW App and the Services (or any Intellectual Property Rights contained therein) including any information, data or Content that may be provided to, or accessed by, in connection with your use of the MDMW App and the Services (including any modifications and enhancements of the foregoing) (collectively, the MDMW IP). Accessing and using the MDMW App and the Services do not give you, your Authorised Users (or anyone else) ownership of, or any right, title or interest in the MDMW IP.

10.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the MDMW App and the Services will automatically vest in, and are assigned to, MDMW (Developed IP).

10.3 Ownership of any User Content will vest in the creator of that User Content but excluding MDMW IP and Developed IP.

11. MDMW Obligations

11.1 Subject to your compliance with the terms of this agreement, MDMW shall use reasonable endeavours to provide you (and your Authorised Users) with access to and use of the MDMW App and the Services.

11.2 In the event that we fail to provide you with access and use of the MDMW App and the Services accordance with clause 11.1, we shall use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 11.1.

11.3 The undertaking in clause 11.1 shall not apply in the event of:

• •any non-conformance which is caused, or contributed, by use of the Services and the MDMW App contrary to our instructions or the terms of this agreement;
• •modification or alteration of the Services and the MDMW App by any party other than us or our duly authorised Personnel;
• •the unsuitability or malfunction of the MDMW App and/or the Services when used in conjunction with any software, platforms, applications and tools supplied by a third-party provider; and
• •Force Majeure Events.

12. No Warranties

12.1 To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the MDMW App and the Services.

12.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

12.3 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, legality, completeness, reliability, accuracy, currency or security of the MDMW App and/or the Services (including any User Content, Third Party Content, products or services provided in connection with the MDMW App and the Services) and we will not be liable if the MDMW App and/or the Services is, or becomes unavailable for any reason, including directly, or indirectly as a result of:

• •telecommunications’ unavailability, interruption, delay, bottleneck, failure or fault;
• •negligent, malicious, wilful acts or omissions of third parties (including third party service providers) or other users;
• •maintenance (scheduled or unscheduled) carried out by us or any third-party service provider, including in respect of any of the systems or network used in connection with the provision of the MDMW App and the Services;
• •services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
• •a Force Majeure Event.

12.4 You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that any information (including any User Content or Third Party Content) uploaded, published, shared or made available to you by MDMW, any Authorised User or any Content made available or offered on, or via the MDMW App is accurate, complete, reliable, current or error-free, virus free or is suitable for any particular purpose or use under any specific conditions, and so is therefore provided on an “as is” basis.

12.5 MDMW shall use reasonable endeavours to make the MDMW App and the Services available 24 hours a day, 7 days a week, except for:

• •planned maintenance carried out at times advised in advance by MDMW; and
• •unscheduled maintenance which may need to be performed from time to time. MDMW will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Business Hours.

12.6 At all times you warrant, acknowledge and agree that:

• •you have granted permission for the Authorised User to access and use the MDMW App and the Services; and
• •you have the full power and authority to enter into this agreement and perform your obligations contemplated by this agreement.

13. Limitation of Liability

13.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you, your Authorised Users, the person(s) receiving care or support or any other third party for any:

• •Consequential Loss; or
• •Loss of, or damage to, any property or any personal injury or death to you, any other user or any third person,

arising out of, relating or connected to, the provision or use of, the MDMW App and the Services (including any User Content, Third Party Content and any products or services published, advertised, displayed or provided in connection with the MDMW App and the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

13.2 All risks associated with using the MDMW App and the Services passes to you and your Authorised Users on downloading the MDMW App or otherwise accessing or using the MDMW App and the Services (whichever is earlier). We do not control or direct what User Content or Third Party Content is uploaded, shared, published, posted or otherwise transmitted by Authorised Users or other users of the MDMW App, and we are not responsible to you, to your Authorised Users or to anyone else for any actions, activities, conduct or transactions (whether online or offline) that occur as a result of, or in connection with your access to, and use of, the MDMW App and the Services.

13.3 To the maximum extent permitted by Relevant Laws, under no circumstances will our aggregate liability to you, your Authorised Users, any other user of the MDMW App, the person(s) receiving care or support or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Subscription Fee paid by you to us in the preceding two months from the date of the Claim.

13.4 You agree to defend, indemnify and hold us, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out, of:

• •the access to, and use of, the MDMW App and/or the Services by you, your Authorised Users, the person(s) receiving care or support or any other third party (including, the use of any User Content, Third Party Content, products or services published, displayed or made available to you on, or via, the MDMW App and the Services);
• •any breach by you (or your Authorised Users) of any Privacy Laws;
• •any breach of any third party’s Intellectual Property Rights or other rights caused by you (or your Authorised Users); or
• •any breach by you (or your Authorised Users) of this agreement (including the Acceptable Use Policy).

14. Privacy

All Personal Information you provide to us to download, access and use the MDMW App and the Services, are subject to our Privacy Policy, which is incorporated into this agreement. You warrant that, in relation to any Personal Information comprising User Content or any other information disclosed to us by you (or your Authorised Users) on, or via, the MDMW App and the Services:

• •it has been collected in accordance with Privacy Laws;
• •you (or your Authorised Users) have the authority to upload, post, publish or otherwise transmit such information on, or via, the MDMW App; and
• •you (or your Authorised Users) have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.

15. Termination

15.1 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block access to (either temporarily or permanently):

• •your Account and Password;
• •the MDMW App and/or the Services; and/or
• •any social media pages, products and/or services offered on, or via the MDMW App and/or the Services.

15.2 During the Subscription Term you may terminate this agreement at any time by selecting the ‘delete account’ function within the accounts settings page of the MDMW App or this agreement will automatically terminate at the end of the billing cycle if you do not pay the Subscription Fee in advance for the next billing period. In this case, you will not be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.

15.3 We may terminate or discontinue the MDMW App or any major functions or features of the MDMW App and/or the Services at any time (without liability to you except MDMW will provide you a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term) by 14 days’ written notice to you, or by otherwise posting it on the MDMW App.

15.4 MDMW may suspend or terminate this agreement by giving you notice with immediate effect if you or any of your Authorised Users (as the case may be):

• •commit any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy and Acceptable Use Policy) and any other agreements entered into between the parties;
• •serious or repeated breaches or violations of another person’s Intellectual Property Rights or privacy rights;
• •fails to pay the Subscription Fees (except during the Trial Period);
• •publish or post User Content or engage in any activities, conduct or transactions on, or, via, the MDMW App and/or the Services, that brings, or has the capacity to bring, MDMW, our Personnel and Affiliates and the MDMW App into disrepute; and
• •requests by law enforcement, court order or other government agencies.

15.5 Except as otherwise stipulated in this agreement, you agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you, your Authorised Users or any third party for any such suspension or termination.

16. Effect of Termination

On termination of this agreement for any reason:

• •we may (without liability to you, your Authorised Users, the person in need of care or support or any third party) delete, de-identify or otherwise dispose of: (i) your Account; and (ii) any or all of your (or your Authorised Users’) User Content in our possession or control. However, we may retain your (and your Authorised Users’) registration information (including Personal Information) in accordance with any limitation periods and records retention obligations that are imposed by Relevant Laws; and
• •all licences to use the MDMW App and the Services and rights of access granted under this agreement to you and your Authorised Users will immediately terminate.

17. Third Party Products and Services

17.1 You acknowledge that the MDMW App and Services may require you to use or access Third Party Products and Services and that you do so solely at its own risk.

17.2 We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third-Party Products and Services, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third-Party Products and Services.

17.3 MDMW recommends that you refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third-Party Products and Services.

17.4 MDMW does not endorse, sponsor or approve any Third-Party Products and Services used in conjunction with the MDMW App and Services. It is your sole responsibility to determine that specific products or services, meet your business and are suitable for the purposes for which they are used.

17.5 Any rights you may have to access Third Party Products and Services shall be limited to:

• •the extent of MDMW’s ability to pass on such rights to you; or
• •the relevant third-party licensor terms.

18. Force Majeure

We shall not be responsible to you, your Authorised Users (the person in need of care or support or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, epidemic, pandemic or mandatory government shut-down or lockdown, acts of terrorism, fire, explosion, flood, an act or omission of a third party, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).

19. Updates and Variations

19.1 Without notice to you, we may, at our absolute discretion, from time to time:

• •change, add or delete the functions, features, performance, or other characteristics of the MDMW App and/or the Services; or
• •apply or install updates to, or new versions of, the MDMW App.

19.2 You acknowledge that the Content, User Content and Third-Party Content on the MDMW App is subject to change at any time and may be out of date at any given time. We are under no obligation to:

• •(c) update, correct or fix any Content, User Content, Third Party Content, the MDMW App and/or the Services; or
• •(d) notify you of any changes to any Content, User Content, Third Party Content, the MDMW App and/or the Services unless required by Relevant Laws to do so.

19.3 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the MDMW App. Any changes are effective immediately upon posting to the MDMW App. Your continued use of the MDMW App and the Services thereafter constitute your acceptance of all such changes to the agreement.

19.4 Please read this agreement before using the MDMW App and the Services as the agreement may have changed since the last time you accessed and used the MDMW App and the Services. If you do not agree to any change, then you must immediately stop using the MDMW App and the Services.

20. Support Services

20.1 MDMW may, at our absolute discretion, provide you with customer support services during Business Hours in accordance with the MDMW’s standard support services and maintenance policy (as amended from time to time).

20.2 If you require customer support services or you are having difficulties accessing and using the MDMW App and the Services, you may contact us by email at [email protected].

21. Dispute Resolution

You must, before resorting to court proceedings, refer any dispute with MDMW (excluding any dispute between you and your Authorised Users which you must resolve without our involvement) under or relating to this agreement, initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.

22. Severability

If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect.

23. Assignment

You may not assign, transfer or deal in any other manner with, all or any of your rights or obligations under this agreement without our prior written consent. To the extent permitted by Relevant Laws, we may, at our absolute discretion, assign, transfer or deal in any other manner with all or any of our rights or obligations under this agreement without your prior written consent.

24. Survival

Clauses 5.2, 6.2, 6.4, 6.5, 7.2, 8, 10, 12,13,15, 16, 17,18, 21, 22, 23, 24, 25, 26, 27, 28 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

25. Relationship

No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

26. Entire Agreement

This agreement, any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).

27. Notices

27.1 By accessing and using the MDMW App, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the MDMW App.

27.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.

27.3 Notice will be deemed received and properly served immediately when posted on the MDMW App or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in the Account.

28. Jurisdiction and Applicable Law

28.1 The MDMW App is created and controlled by us in the State of Queensland, Australia. As such, the laws of the State of Queensland, Australia will govern this agreement.

28.2 By using the MDMW App and the Services you submit to the exclusive jurisdiction of the courts of Queensland, Australia and agree that any legal action will only be commenced in this forum.

29. Definitions

In this agreement, the following words shall have the following meanings:

(a) Acceptable Use Policy has the meaning in clause 7.1.

(b) Account has the meaning given to it in clause 4.1.

(c) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

(d) agreement has the meaning in clause 1.2.

(e) Authorised User means a Carer User and a View Only User (as the context permits).

(f) Business Day means any day which is not a Saturday, Sunday or public holiday in Queensland.

(g) Business Hours means 9:00am am to 5:00pm on Business Days.

(h) Carer User means a carer or support worker who: (i) is authorised or invited by you (as the account holder) (either on a restricted or unrestricted basis) to access and use the MDMW App; and (ii) can communicate with the account holder by downloading, uploading, posting, displaying or submitting User Content on, or via, MDMW App.

(i) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

(j) Commencement Date has the meaning in clause 3.1.

(k) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of a breach of the agreement: (iii) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense; (iv) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data or reputational loss or damage, loss of earnings, emotional distress or injury to feelings; (v) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by another user or third party; or (vi) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

(a) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the MDMW App.

(l) Developed IP has the meaning in clause 10.2.

(m) Direct Debit Authority has the meaning in clause 9.1.

(n) Force Majeure Event has the meaning in clause 18.

(o) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

(p) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including legal and other professional costs and Consequential Loss.

(q) MDMW, we, our or us has the meaning in clause 1.1, and where the context permits, includes our Personnel and Affiliates.

(r) MDMW App means the mobile application owned, operated and managed by MDMW, including any systems, Content and server software, the computer hardware, tools, application, database, systems, and all Intellectual Property Rights contained therein, provided or otherwise made available by us.

(s) MDMW IP has the meaning given to it by clause 10.1.

(t) Password has the meaning given to it in clause 4.1(a).

(u) Personnel means any director, officer, employee or contractor of the party.

(v) Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.

(w) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which you are located.

(x) Privacy Policy means our privacy policy available on the MDMW App, our Website or any other internet site notified by us from time to time, which is incorporated into this agreement.

(y) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.

(z) Services has the meaning in clause 2.1.

(e) Subscription Fee means the fee payable by the Account Holder to access and use the MDMW App and the Services as further described on the MDMW App.

(f) Subscription Term has the meaning in clause 3.1.

(g) Third Party Payment Processor means Apple Pay and any other third party payment processor permitted by us from time to time.

(h) Trial Period means four consecutive weeks from the date you register and set up your Account.

(aa) Third Party Content means all data, content, materials and information (including text, images, graphics, logos, video and audio clips and links) that are provided by third parties or are identified as belonging to or sourced from third parties.

(bb) you or your has the meaning in clause 1.3.

(cc) User Content means all data, content, materials and information (including Personal Information) about you, your Authorised Users and the person in care (including, but not limited to, health records, medications, behavioural strategies, personal preferences, community access and outings, medical procedures, daily routine trackers, task lists, celebrations, incident reports, emergency treatment plans, health management plans and behavioural support plans and any other health information about a person in care): (i) uploaded to, posted or stored on, the MDMW App by you or your Authorised Users; (vii) transmitted by the MDMW App at your instigation or at the instigation of your Authorised Users; (viii) supplied by you or your Authorised Users to MDMW for uploading to, transmission by, or storage on, the MDMW App; or (ix) generated by the MDMW App as a result of the use of the Services by you or your Authorised Users, but excluding MDMW IP and Developed IP.

(dd) User Name has the meaning given to it in clause 4.1(a).

(ee) View Only User a family member of the Account Holder who: (i) is authorised or invited by you to access and use the MDMW App; and (ii) can only view User Content published or posted on the MDMW App by the Account Holder or Carer User.

(ff) Website means the website located at www.mydaymyway.com and any other website notified by us from time to time.