Consumer Terms & Conditions
1. Term
1.1 The Agreement shall commence on the Commencement Date and terminate on the Termination Date (Term).
1.2 The Agreement shall commence when the Customer accepts these Terms and Conditions, provides Secure Track Sense with all information necessary to provide the Service, provides Secure Track Sense with details of a valid credit card and authorises Secure Track Sense to charge the Fee to the credit card (Commencement Date).
1.3 As soon as reasonably possible after the Commencement Date, Secure Track Sense shall send the relevant parts of the Service to the Customer by registered post. Delivery is deemed to have occurred five business days after the date of postage (Date of Delivery).
2. Payment
2.1 On and from the Date of Delivery, the Customer authorises Secure Track Sense to charge the Fee to the Customer’s credit card or company account at the start of each Monthly Period. The Date of Delivery is considered the start of the Monthly Period.
2.2 The Monthly Period is a minimum period of one calendar month. In the event of a cancellation of the Service by a Customer, there will be no pro-rata refund to the Customer for any unused portion of the Monthly Period.
2.3 The Customer shall ensure at all times that the credit card details provided to Secure Track Sense are up to date and valid.
2.4 If any Fee remains unpaid by the Customer and/or is unable to be charged by Secure Track Sense for longer than 14 days, Secure Track Sense may suspend the Service immediately and request that the Customer return any Sensor/s or other Product/s immediately and may take steps to recover unpaid Fee/s.
3. Termination
3.1 The Customer may at any time during the Term elect to terminate the Agreement by:
(a) contacting Secure Track Sense by telephone and confirming its intention to terminate, which shall be immediately confirmed in writing by Secure Track Sense (the date of confirmation by Secure Track Sense shall be the Termination Date);
(b) emailing Secure Track Sense at support@SecureTrackSense.com, in which case the Termination Date shall be the date on which the email is successfully sent and received; or
(c) letter to Secure Track Sense, in which case the Termination Date shall be the date the letter is marked as received by Secure Track Sense. Secure Track Sense shall not be held accountable in the event of a Termination letter not being received due to either the customer’s incorrect labelling of Secure Track Sense’s postal address or the loss of the Termination letter due to forces outside of Secure Track Sense’s control.
3.2 As soon as reasonably possible after the Termination Date, Secure Track Sense shall send to the Customer a reply-paid registered post envelope or satchel to allow the Customer to return the Secure Track Sense device. The Customer shall, within 21 days from the Termination Date, return the device/s and/or Other Products/s to Secure Track Sense. The device/s and/or Other Products/s are deemed to have been returned when received by Secure Track Sense.
3.3 The Service is considered pending cancellation until the device has been received by Secure Track Sense. In the event that the Customer does not return the device to Secure Track Sense within 21 days of the Termination Date, Secure Track Sense may re-activate the Service and charge the Customer’s credit card for each subsequent Monthly period until the device is received. Alternatively, Secure Track Sense may charge the Customer a fair and relevant once-off fee to cover the cost of the unreturned device. In the event the device is returned after a once-off fee has been charged, Secure Track Sense will refund the fee, less processing charges, to the Customer.
3.4 Secure Track Sense shall cease charging the Customer the Fee from the date the device is received by Secure Track Sense.
3.5 Secure Track Sense may immediately terminate the Agreement for its convenience at any time upon notice to the Customer. The Customer shall not be charged for the relevant Monthly Period.
4. Title and Risk
4.1 Notwithstanding delivery of any part of the Service, Secure Track Sense shall always retain title and all associated property rights (including intellectual property rights) in the device or Other Products.
4.2 The Customer accepts the risk in the device/s or Other Products/s from Delivery and is responsible for any loss or damage to the devices/s or Other Products/s caused by any person including the Resident due to any cause except to the extent otherwise set out in the Agreement.
5. Installation and Activation
5.1 The Customer shall be solely responsible for installation of the device and/or Other Products and shall install the device and/ or Other Products in accordance with the User Guide. Secure Track Sense is not responsible for any incorrect or improper installation.
5.2 Once the device and/or Other Products are properly installed the Customer shall connect the device and/or Other Products to the Smart Device App using an acceptable device with the Smart Device App properly downloaded and installed and shall activate the device and/or Other Products in accordance with the User Guide.
5.3 As soon as reasonably possible after Delivery of the device and/or Other Products, the Customer shall inspect the devuce and/or Other Products and shall satisfy itself that:
(a) it has received the device and/or Other Products in good condition in the quantity ordered;
(b) it, and any person installing and activating the device and/or Other Products and the Smart Device App, has read the User Guide and fully understands its proper use and the means of installation and removal; and
(c) the Service is in working order.
5.4 If the Customer is not satisfied with the matters in clause 5.3 and provided that it has otherwise complied with this clause 5, it shall contact Secure Track Sense. Secure Track Sense shall use its best endeavours to resolve any issues with the Service. The means by which Secure Track Sense resolves any issues with the Service (including conducting any repairs or arranging a replacement device and/or Other Products) shall be within its discretion.
6. Use of the Service
6.1 The Customer shall ensure that the Service is used strictly in accordance with User Guide and any procedures recommended by Secure Track Sense from time to time.
6.2 The Customer shall at all times keep the device in good condition and shall not, without Secure Track Sense’s prior written consent, alter or make additions to the device or Other Products, or deface, remove, or conceal any Secure Track Sense logo, identifying mark, number, or indication of Secure Track Sense’s ownership of the device or Other Products.
6.3 The Customer shall at all times ensure that the device or Other Products are used in a safe manner, and shall not deliberately damage, abuse or mistreat the device or allow the device to be deliberately damaged, abused, or mistreated.
6.4 If any damage, loss, theft, or destruction of the device or Other Products occurs, whether the Customer was responsible or not, the Customer shall immediately notify Secure Track Sense and provide full details of the damage, loss, theft, or destruction.
6.5 The Customer shall not use the Service for any illegal purposes.
7. Unusable or Damaged Sensor/s or Other Products/s
7.1 In the event that the device/s or Other Product/s is damaged, breaks, or otherwise stops working during the Term, the Customer shall contact Secure Track Sense. Secure Track Sense may provide the Customer with instructions as to how to rectify the relevant issue, failing which the Customer may request a replacement device/s or Other Product/s.
7.2 If the device/s or Other Product/s is defective through no fault of the Customer or any other party other than Secure Track Sense, the Customer will not be liable for the cost of the device/s or Other Product/s.
7.3 If the device/s or Other Product/s is defective as a result of an act or omission by the Customer or any party other than Secure Track Sense, the Customer will be liable to a charge of AU$165 (inc gst) per device or an amount for Other Product/s as notified by Secure Track Sense.
7.4 The Customer will be required to return the original device/s or Other Products/s to Secure Track Sense.
8. Provision of Services
8.1 Secure Track Sense may use the data collected from the device or Other Products and under the Agreement for limited purposes, being:
(a) for marketing and product knowledge;
(b) product development;
(c) provision of the Services; and/or
(d) if the data is subject to a warrant or court order and is sought by a law enforcement agency.
8.2 Secure Track Sense agrees to use any data collected under the Agreement in accordance with the Privacy Requirements.
8.3 Secure Track Sense provides complimentary customer support in relation to the Service. The Customer is entitled to contact Secure Track Sense through the Secure Track Sense web portal, by phone, or by email to access the customer support.
9. Warranties and guarantees
9.1 The Customer acknowledges that:
(a) it has read and understands these Terms and Conditions, the User Guide, the Product Disclosure Statement and the Privacy Policy;
(b) it has not entered into the Agreement on the basis of any representations made by Secure Track Sense outside those recorded in the Product Disclosure Statement (if any) as to the suitability or effectiveness of the Services;
(c) the device collects motion data, and Other Product/s may collect location data or other data which is remitted to and held by Secure Track Sense and that any data collected from the Service is not sensitive in nature;
(d) the Service is not designed to be a primary means of monitoring the wellbeing of the Resident by the Customer or any other party
(e) it has: (1) obtained the consent of the Resident for the purposes of installing and using the Service and for the provision of personal information about the Resident to Secure Track Sense for the purposes in the Privacy Policy (or any reasonable secondary purposes) and for the disclosure of personal information about the Resident by Secure Track Sense (including to a third party company overseas for the purposes of providing the Service) so as to allow it to provide the Service; or
(2) it has not obtained the consent the Resident for the purpose of installing and using the Service and for the provision of personal information about the Resident to Secure Track Sense for the purposes in the Privacy Policy (or any reasonable secondary purposes) and for the disclosure of personal information about the Resident by Secure Track Sense (including to a third party company overseas for the purposes of providing the Service) so as to allow it to provide the Service, but:
(A) is the Resident’s Attorney under the relevant Power of Attorney legislation;
(B) has obtained consent by way of an order of a court of relevant jurisdiction; or
(C) has reasons to reasonably believe the Resident consents; and
(f) Secure Track Sense may store information and data collected under the Agreement to a third-party company overseas for the purposes of providing the Service and the Customer.
9.2 Secure Track Sense acknowledges that the Customer may be a consumer for the purposes of applicable consumer law and that:
(a) certain warranties or conditions may be implied into the Agreement; and
(b) certain guarantees may be conferred on the Customer and certain rights and remedies may be conferred on the Customer, which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, Secure Track Sense’s liability to the Customer is limited at Secure Track Sense’s option to:
(1) replacement or repair of the Services; or
(2) payment of the cost of replacing or repairing the Services.
10. Limitation of Liability
10.1 To the fullest extent permitted by law, the aggregate liability for any and all claims (including claims made by third parties), costs, expenses, losses, damages, or any other liability (“Loss”):
(a) of the Customer shall be limited to 100% of the Fees paid and/or payable to Secure Track Sense at the time of the relevant Loss; and
(b) of Secure Track Sense shall be limited to $150.
10.2 The Customer shall indemnify Secure Track Sense against any breaches of Secure Track Sense’s intellectual property rights by the Customer and the limitation of the Customer’s liability in clause 10.1 (a) shall not apply in respect of this indemnity.
11. Changes to Terms and Conditions
Secure Track Sense may amend these Terms and Conditions at any time by publishing the amendments on its website www.abibird.com.au, updating the amendments on the Smart Device App, or by otherwise notifying the Customer in writing.
12. Privacy
Secure Track Sense shall only use personal information of the Customer or Resident for the purposes for which it was obtained enclosed in the Privacy Policy.
13. Survival
Notwithstanding anything in this Agreement, clauses 3, 4, 9, 10 and 12 survive termination of the Agreement whether under this Agreement, any statute, or in equity, repudiation or otherwise by law.
14. Definitions
In these Terms and Conditions:
Secure Track Sense means ATF Services Pty Ltd ABN 54 060 402 048 trading as Secure Track Sense and includes any employees, agents, consultants or contractors of ATF Services Pty Ltd and Secure Track Sense;
Device means the Secure Track Sense product as described in the device User Guide supplied by Secure Track Sense as part of the Service and where applicable includes any additional device/s;
Service means the service provided by Secure Track Sense in accordance with the Agreement and includes the Smart Device App, device, any additional device, and any Other Products as varied added or from time to time;
Additional device means any device in addition to the first device and forms part of the Service;
Agreement means the contract between Secure Track Sense and the Customer in relation to the supply of the Service, which is governed by these Terms and Conditions and includes the User Guide, Product Disclosure Statement and Secure Track Sense’s Privacy Policy;
Business Hours are the hours stated on the Secure Track Sense website as varied from time to time;
Commencement Date means the date determined in accordance with clause 1.1;
Customer means the person, company or other legal entity being the recipient of the Service from Secure Track Sense in accordance with the Agreement and includes any employees, agents, consultants or contractors of the Customer;
Fee means the amount payable by the Customer to Secure Track Sense each Monthly Period for the Term and includes any amounts payable by for an additional device and includes any additions or deductions to the Fee upon reasonable written notification by Secure Track Sense to the Customer;
Monthly Period means each monthly period commencing on the Date of Delivery in which the Fee is charged by Secure Track Sense and to be paid by the Customer on an ongoing basis;
Other Products means any Secure Track Sense products or services other than the device and Smart Device App as may be offered by Secure Track Sense from time to time;
Privacy Policy means Secure Track Sense’s privacy policy published on its website as updated from time to time;
Privacy Requirements means any relevant privacy legislation in force in the jurisdiction in which the device is supplied as may be amended from time to time including any Acts, regulations, ordinances, rules, principles and/or guidelines and includes Secure Track Sense’s Privacy Policy;
Product Disclosure Statement means the Secure Track Sense document which provides disclosures about the Service and includes any revisions of that document issued by Secure Track Sense or on Secure Track Sense’s website from time to time;
Resident means the older person who resides at the Resident’s Home for which the device is being supplied;
Resident’s Home means the place where the device is located;
Smart Device App means the application provided by Secure Track Sense as part of the Service;
Term has the meaning given to it in clause 1.1;
Termination Date means the date on which the Service is terminated; and
User Guide means the guide provided by Secure Track Sense to the Customer for the use of the Service and includes any revisions to that document issued by Secure Track Sense or published on Secure Track Sense’s website from time to time.
15. Interpretation
In the Agreement, unless the context otherwise requires:
(a) if any provision of the Agreement is prohibited by law or considered or deemed unenforceable by a court of jurisdiction, it may be severed from the remainder of the Agreement to the extent that doing so will not invalidate the remaining provisions. Unless stated to the contrary, the rights under the Agreement are in addition to any rights that may be conferred by general law;
(b) the Agreement will be governed by the laws in force in the jurisdiction in which the device is supplied as may be amended from time to time and the parties submit to the non-exclusive jurisdiction of the courts of that place; and
(c) these Terms and Conditions supersede all previously issued terms and conditions. Secure Track Sense is not bound by any terms and conditions contained in any document issued by the Customer whether issued before or after the Agreement.