Tend.care Terms & Conditions

Last updated: September 2017

By clicking on the “I accept” button or otherwise installing the Tend.Care software application on Your device, You are deemed to have reviewed and agreed to the terms and conditions of use and access of the service provided by Tend.Care. If You do not agree to these Terms of Use, please do not access and use the Portal and We suggest that You uninstall the Tend.Care software application from Your device.

In these Terms of Use, the following have their respective meanings:

App” means the Tend.Care software application that You have downloaded to Your device and which enables You to access and use the Portal to arrange for the provision of care services to the Client, provide feedback to Tend.Care in relation to the care services provided and to access information and materials in relation to the Client and the Client’s care services.

Approved Provider” means the entity that has developed the Care Plan with the Client and is responsible for the delivery of the Home Care Package to the Client. 

Care Plan” means the care plan for the Client that sets out the care and services the Client receives that has been developed in consultation with the Client by the Approved Provider and is thereafter updated from time to time.

Care Worker” means a person employed by Tend.Care or engaged by Tend.Care who provides care services to the Client.

Client” means an individual who has a Home Care Package with an Approved Provider and who wishes to receive care from Tend.Care, as part of the Home Care Package or an individual who does not have a Home Care Package with an Approved Provider but wishes to receive care from Tend.Care in exchange for paying Tend.Care directly for the care received. In some situations, You and the Client will be the same person; in other situations, You may be a Client Advocate for the Client and therefore given the right to administer the Client’s account with Us, or You may be a User and therefore granted access to information held by Tend.Care about the Client and the services provided to the Client.

Client Advocate” means a User authorised by a Client through the App and/or the Portal to administer the Client’s account with Tend.Care and who has the authority and power to act on behalf of the Client until such time as the Client revokes the Client Advocate’s authorisation.

GST” has the same meaning as defined in the GST Law and also includes penalties and interest.

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time.

GST Law” has the same meaning as defined in the GST Act.

Any expression used that is defined in the GST Law has that defined meaning where the context permits.

Home” means, in relation to the Client, the Client’s primary place of residence and the location at which the Client will receive the care services from a Care Worker.

Home Care Package” means a package of services which the Approved Provider has agreed to provide to the Client.

IPR” means any copyright, trade mark (whether registered or unregistered), design, patent, semiconductor or circuit layout rights, trade, business or company names, other proprietary rights and rights to the registration of such rights existing anywhere in the world and existing before, on or after the commencement of these Terms of Use.

Laws” means all relevant state, territory and Commonwealth laws and regulations and where the context requires, includes all Australian Government policies applicable to the delivery of the Home Care Package and the care services to the Client.

Password” means a password You set and use for the purpose of accessing the Portal and the restricted features of the App.

Personal Information” has the meaning given to the term “personal information” by the Privacy Act 1988 (Cth).

Portal” means the Tend.Care portal accessible via the App and accessible online through Our website which provides Clients with the capacity to arrange and book appointments for the provision of care services by a Care Worker consistent with the Client’s Care Plan and Home Care Package, to manage the payment of Fees to Tend.Care as consideration for the provision of care services, to provide feedback in relation to the provision of care to the Client and to set access restrictions in relation to the right of a User to access and review feedback and notes regarding the care services provided to the Client.

Service Schedule” means the agreed schedule for the delivery of the care services under the Client’s Care Plan as updated from time to time.

User” means a third party individual who has created an account with Us in order to access the Portal and has limited or restricted right of access to the feedback and notes in relation to the provision of care to the Client (such access right is set by the Client using the tools We make available through the App).

User ID” means a name or acronym which You generate and which You use to access and use the App and the Portal.

Terms and Conditions

1 Access and Use of the App and the Portal

1.1 In order to access some features We make available via the App and the Portal, You acknowledge and agree that You will have to create an account with Us (by generating a User ID and a Password).

1.2  When creating Your account, You must provide (and You represent and warrant to Us that You have provided) accurate and complete information to Us. If You fail to provide accurate and complete information, then We may be unable to provide the Portal, the App and the services that We make available to You through the App and Portal.

1.3  In addition to the provisions set out in clause 2 (Becoming a Client), You acknowledge and agree that We may assist in the creation of an account for You when You are creating an account as a Client (and therefore recipient of care services from Us). Where We provide assistance in the creation of an account, You agree that the information You provided to us in the course of creating Your account was true, complete and accurate, and not misleading.

1.4  Where You are creating an account with Us as a User, You acknowledge and agree that You have been invited to create an account by the Client or by the Client Advocate to create an account, solely for the purpose of accessing information and records We store about the Client. 

1.5  If at any stage during Your use of the App and the Portal (and the related services We provide to You), You determine that the information which You have provided to Us is inaccurate and/or incomplete, then You must promptly notify Us and update the information which You have provided to Us.

1.6  You are solely responsible for the activity that occurs on Your account, and You agree to ensure that only You use your User ID and Password to access the restricted areas through the App and on the Portal. You agree that You will immediately notify Us if You become aware of Your User ID and Password being used to access the Portal and the App without Your consent or that You become aware of or suspect that Your account has been accessed without Your consent. 

1.7  You also agree that You access and use the App and the Portal only in accordance with these Terms of Use, any additional requirements specified on the App and the Portal, any lawful and reasonable directions given by Us or on Our behalf from time to time and in accordance with all applicable laws.

2  Becoming a Client:

2.1  You may become a Client at any time, in accordance with these Terms of Use.

2.2  When You wish to become a Client, You agree that We may provide assistance to You to become a Client and You agree to comply with Our reasonable instructions (as set out on the App and on the Portal or as otherwise communicated by Us to You) and provide Us with all necessary information We require to establish You as a Client.

2.3  In particular, You agree to provide Us with information We request in relation to Your Approved Provider, Your Care Plan and Your Home Care Package, to the extent We (on reasonable grounds) request this information. You also authorise Us to liaise with Your Approved Provider in relation to the care services that are being or will be provided to You under Your Care Plan.

2.4  Additionally, if We require that You pay any amount in consideration of You becoming a Client and having the access and use rights We confer on all Clients, then You agree to pay (and You will promptly pay) to Us without set-off such consideration (including, where relevant, any goods and services tax, consumption tax or other value added tax, as may be applicable in the circumstances to the consideration) as is applicable.

3  Ability of Clients and Client Advocates to nominate Users, etc.

3.1  As a Client You are entitled to nominate any User to have access to the feedback and materials We hold and decide to make available about the care You receive from Us (including from the Care Givers). You acknowledge and agree that We act only on Your instructions in relation to the nomination and that You hold Us harmless from and against any loss You suffer as a result of any information We make available or to which We allow access about You or the care services provided to You, unless such loss is directly caused by Our negligent or wilful act or omission or Our breach of these Terms of Use. You further acknowledge and agree that We will maintain the confidentiality and privacy of records of the care You receive from Us and, except as required by law, We will not disclose such records to any individual.

3.2  Where You are a Client or a Client Advocate, You agree that You are entitled to change the level of access granted to any User by accessing and using the tools We make available via the App and the Portal and the assistance We otherwise provide or make available.

3.3  In addition to nominating Users, You may at any time (via the tools We make available via the App and the Portal) nominate a User to be Your Client Advocate. By nominating a User to be Your Client Advocate, You represent and undertake to Us that You have authorised the User to act on Your behalf in relation to the care services We provide to You and the administration of Your account with Us.

3.4  You acknowledge and agree that where You have authorised a User to be Your Client Advocate, We may directly liaise with Your Client Advocate in relation to any matter or issue arising under these Terms of Use, including in relation to the delivery of care services to You and payment of fees and charges to Us in consideration for the delivery of care services.

3.5  You may at any time change or revoke the authorisation of the nominated User to be Your Client Advocate by contacting Us directly. Please note that We reserve the right to verify Your identity and please allow at least 48 hours for any revocation of authority to take effect.

4  Delivery of Care Services:

4.1  Where You, as a Client, either directly or through Your Client Advocate, arrange and book for the provision of care services by a Care Worker, You and Us must comply with the provisions set out in this clause which should be read in conjunction with Our right to suspend the provision of the care services to You as set out in clause 5 (Suspension of the provision of care services). 

4.2  Without limiting the foregoing, You acknowledge and agree that We may refuse to provide care services to You where the provision of care services has been booked to fall on a public holiday in the jurisdiction in which You are located.

4.3  You must allow attending Care Workers to complete and perform their duties in the time allocated to You.

4.4  You must make full disclosure to Us of any matter which relates to or which may affect Us or any Care Worker in providing care services to You. For example (without limitation), if You believe that the care services may pose a risk or danger to You, You must immediately advise the attending Care Worker of Your concerns. You must also treat attending Care Workers with dignity and respect, and You must ensure that Your home is safe for attending Care Workers.

4.5  We will ensure that the Care Worker scheduled to provide the relevant care services to You will do so with the utmost professionalism, due care, skill and diligence. Without limiting the foregoing, We will ensure that the care services We provide comply with the Home Care Common Standards which are set out in the Quality of Care Principles 2014.

4.6  If You have any legitimate concerns about the level of professionalism, care, skill and diligence used, We request and encourage You to provide Us with feedback in relation to the care services You received from the Care Worker, and We will take such action as we deem appropriate in relation to the feedback. Where We discuss Your feedback with the Care Worker concerned, We will use our best endeavours to do so while protecting Your privacy.

4.7  You still need to pay Your fees and charges to Us in relation to the care services We have provided to You (unless those applicable fees and charges are paid on Your behalf by Your Approved Provider).

4.8  Where You have scheduled the provision of care services at a particular time and at a particular location, it is Your responsibility to ensure that You notify Us at least two Business Days in advance if You wish to reschedule the care services. You must be at Your Home between the designated or agreed times in order to receive the scheduled care services. If You are absent, We may still charge You for the attendance by the Care Worker.

4.9  You agree to allow the Care Worker to complete and fulfil their duties in the time allocated to You.

4.10  When booking a scheduled time for the provision of care services, You must make full disclosure to Us of any matter which relates or which may affect the provision of the care services to You by the Care Worker. You also agree to treat the Care Worker with dignity and respect, and ensure that Your Home is safe for the Care Worker to attend.

4.11  Without limiting Our obligations owed to You under these Terms of Use, We will ensure that the care services provided to You by a Care Worker meets the standards required by the Aged Care Act.

4.12  The care services We agree to provide to You under these Terms of Use do not include the provision of aids and equipment to You. You agree that You are wholly responsible for the purchase or the hire of aids and equipment.

4.13  If Our Care Worker is present in the event of a medical emergency, ambulance support will be sought. If You require urgent care, please contact Your general practitioner or dial 000.

4.14  You agree that when You receive a care service from Us or from a Care Worker engaged by Us, You are entitled to provide reasonable feedback in relation to the care service. You also agree that You are entitled to make reasonable requests in relation to the care service to be provided by Us or by a Care Worker engaged by Us, and We will use our best endeavours to ensure that your reasonable requests are met.

5  Suspension of the provision of care services: You acknowledge and agree that We may at any time suspend or cease the provision of care services to You if any of the following occurs:

5.1  You cannot be cared for with the personnel available to Us;

5.2  You cease to hold a Home Care Package which accords with the resources available to Us;

5.3  You move to an area where We do not provide the services or Your needs or condition changes to the extent that You no longer need home care or Your needs as assessed by an aged care assessment team can be more appropriately met by other types of care;

5.4  You do not meet Your responsibilities for a reason within Your control including (but not limited to) Your responsibilities to pay Your fees;

5.5  access to Your home poses an unacceptable risk to the health, safety and/or wellbeing of Care Givers or others; or

5.6  We give You at least seven days’ notice of Our decision to cease providing the care services for any other reason.

6  User ID, Password and Security: You acknowledge and agree that You are responsible for the security and safety of Your unique User ID and Password combination and that You must take all necessary steps to protect Your User ID and Password from unauthorised access, use or disclosure by any person. Without limiting the foregoing, You agree to notify Us immediately when You become aware of any unauthorised access to, use or disclosure of Your User ID or Password by any person and comply with any directions relating to security which We issue or which are issued on Our behalf from time to time.

7  Fees and Charges: 

7.1  Where we provide You with access to and enjoyment of the App, the Portal and the care services (or any part thereof) in consideration of Your payment of fees and charges, You agree to promptly pay to Us the full amount of the relevant fees and charges in accordance with the fee schedule We make available on the Portal or otherwise make available to You from time to time. 

7.2  Without limiting the foregoing, where You are required to make regular payments of applicable fees and charges, You agree that We may enter into a separate direct debit agreement with You to enable Us to directly debit the amount to be paid from Your nominated bank account. 

7.3  Additionally, You agree and authorised Us to liaise with Your Approved Provider (where You are a Client receiving care services from Us pursuant to a Home Care Package) in order to obtain payment for the care services We provide to You pursuant to Your Care Plan and where We receive full payment from Your Approved Provider for the care services We provide, We acknowledge and agree that Your liability to pay us for the care services provided has been fully discharged.

7.4  Where GST is applicable to some or all of the care services You have engaged Us to provide care services to You and You do not have a Home Care Package with an Approved Provider, then You promptly agree to pay to Us the amount of the consideration we calculate and invoice as being due and payable for the provision of care services.

7.5  The consideration payable for any taxable supply We make to You under these Terms of Use is expressed as a GST-exclusive amount, unless it is specifically referred to as GST-inclusive.

7.6  In addition to any consideration You are required to pay to Us under these Terms of Use, You must also pay to Us an amount equal to the GST imposed on each taxable supply (if any) by Us in respect of that consideration on the date the consideration is payable under these Terms of Use.

7.7  We acknowledge and agree that You are not obliged to pay an amount equal to the GST imposed on any taxable supply made under these Terms of Use until You receive from Us a tax invoice or adjustment note for the supply to which the payment relates.

8  General Use – Permissions and Restrictions: We hereby grant to You permission to access and to use the App, the Portal, the tools We make available for use via the App and the Portal and to access the Content made available via the Portal (subject to these Terms of Use), provided that:

8.1  You agree not to distribute in any medium any part of the Portal or the Content without Our prior written consent, unless We expressly and directly make available to You the means for such distribution through functionality We offer to you now or in the future;

8.2  You agree not to alter or modify any part of the Portal or, subject to these Terms of Use, the Content made available via the Portal;

8.3  You agree not to access Content through any technology or means other than through the means that We provide or make available to You under these Terms of Use; 

8.4  Without limiting the foregoing, You agree not to use or access the Portal or the Content for any of the following commercial uses unless you first obtain Our prior written consent (which We may provide in our absolute discretion, subject to any conditions which We choose to impose at our absolute discretion):

8.4.1  the sale of access to the Portal and/or to the Content;

8.4.2  the sale of advertising, sponsorships or promotions placed on or within the Portal or the Content; or

8.4.3  the sale of advertising, sponsorships or promotions on any page of any third party website that may contain Content delivered via the Portal;

8.5  When You download and install the App on Your smart device, You agree that it may automatically download and install updates from time to time from Us. These updates are designed to improve, enhance and further develop the App and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and to permit Us to deliver these to You) as part of Your use of the App, the Portal and the associated software We make available to You from time to time. You acknowledge and agree that We make no representation or warranty to You that We will provide or make available updates or new releases of any software associated with the Portal or the Services.

8.6  In Your use of the Portal and Your access to the Content made available via the Portal, You agree to comply with all applicable laws.

8.7  We reserve the right to suspend and/or discontinue any aspect of the App, the Portal and the associated services at any time. While We agree to use all reasonable endeavours to notify You in advance of where We decide to discontinue any aspect of the App, the Portal and the associated services, to the maximum extent permitted by law, We are not liable to You in the event We exercise Our right under these Terms of Use to suspend and/or discontinue any aspect of the App, the Portal and/or the associated services.

9  Privacy:

9.1  We take all reasonable steps to protect the privacy of Your Personal Information in accordance with Our statutory obligations under the Privacy Act 1988 (Cth).

9.2  In particular, We comply with Our privacy policy, which You can review and access at the following URL: https://tend.care/privacy-policy.

9.3  You acknowledge and agree, without limiting Our privacy policy or these Terms of Use, that:

9.3.1  if You do not agree to provide Personal Information to Us when requested, then You may be unable to access and use part or all of the App or the Portal, or to receive care services from a Care Worker; and

9.3.2  when You provide us with Personal Information on Our request, We may use such Personal Information to create a user profile for You via the Portal. This user profile stores Your individual information (which may include Personal Information about You) and includes settings We generate in relation to Your access privileges to the Portal and the Content on the Portal.

9.4  Where You are a Client, You agree that We may disclose Personal Information about You to Your Approved Provider for the purpose of Us completing Our obligations owed to You under these Terms of Use (including for the purpose of Us providing care services to You) and for Us to receive payment from Your Approved Provider on Your behalf.

9.5  Without limiting the foregoing, where You are a Client, You agree that We may disclose Personal Information about You to Your Client Advocate, your nominated representatives and contacts and that these individuals may speak on your behalf. On request, You agree to provide Us with conclusive evidence of the authority Your representatives have to deal with or manage Your affairs (or they must do so on Your behalf).

9.6  Where You are a Client, You acknowledge and agree that You have the right and capacity (through the tools We provide or make available to You via the App and the Portal) to direct whom has access to the notes and information We host and hold about the care services provided to You.

9.7  Where You are authorised by a Client to have access to the notes and information We host and hold about the care services provided to the Client (including nominated and authorised as the Client’s Client Advocate), You acknowledge and agree that You may only access that information and those notes for personal purposes only and not for any commercial purposes. Without limiting the foregoing, You acknowledge and agree that You may not disclose any of the information and notes to any third party without the permission of the Client.

9.8  Generally, We may also from time to time disclose Your Personal Information We have collected about You to third parties in accordance with Our privacy policy.

9.9  In accordance with Our privacy policy, We will provide You with access to the Personal Information We hold about You.

10  Indemnity: To the maximum extent permitted by law, where You are a Client, We are not liable to You for and You agree to hold Us harmless, indemnify Us and keep Us indemnified from and against any liability, claims, damages or expenses of any kind arising directly or indirectly in connection with:

10.1  any services that are provided to You by a third party;

10.2  any services provided to You after Your Home Care Package is transferred to another provider;

10.3  the suspension or termination of Your Home Care Package for any reason;

10.4  informal services provided to You by Your family members, neighbours or friends; or

10.5  the disclosure to a third party You have nominated of or the granting to a third party You have nominated of access to the notes and information We hold about You in connection with the care services We provide to You under these Terms of Use where You have authorised Us to disclose or grant access to that third party.

11  Your Content and Conduct:

11.1  Regardless of whether You are a Client or not, You are solely responsible for Your own Content (including feedback, notes and information about the care services provided to You as a Client) and the consequences of submitting the Content to Us.

11.2  You represent and warrant to Us on a continuous basis that You own or You have the necessary licences, rights, consents and permissions to submit the Content to Us and that Our reproduction, communication to the public and other exploitation of the Content (including the IPR in the Content) does not infringe the rights (including the IPR) of any third party.

11.3  Subject to the above, You further agree that the Content submitted to Us does not contain third party copyrighted material, or material that is subject to any proprietary rights (including IPR) owned or controlled by any third party, unless You have the permission from the lawful owner of the material or that You are otherwise legally entitled to submit the Content to Us and to grant to Us all of the licence rights set out in these Terms of Use.

11.4  You additionally agree that You will not submit to Us any Content that is:

11.4.1  vulgar or obscene;

11.4.2  discriminatory, sexist or racist;

11.4.3  violent or graphic;

11.4.4 contrary to applicable laws in Australia; or

11.4.5 libellous, tortious, defamatory or invasive of another person’s privacy.

11.5 You acknowledge and agree that We may, at our absolute discretion, remove Content which in Our reasonable opinion breaches any of the restrictions set out above at clause 11.4. To the maximum extent permitted by law, We are not liable to You for any loss or damage that You suffer or sustain as a result of Us removing any Content in reliance on this clause.

11.6 You also acknowledge and agree that the fact that We make available Your Content to other users of the App and the Portal does not mean that We endorse such Content or the person submitting the Content.

11.7 You further acknowledge and agree that, to the maximum extent permitted by law, You indemnify Us, keep Us indemnified and hold Us harmless from and against any claims made against Us by any third party with respect to the Content (or any part of the Content), including the publication or release of the Content, or any imputations set out or contained in the Content.

11.8 Additionally, You further acknowledge and agree that any links to external websites controlled or operated by third parties are beyond Our reasonable control and that We are not responsible for the content accessible via the link(s) included in Your Content. To the maximum extent permitted by law, You acknowledge and agree that We are not responsible for any loss that You suffer or incur as a result of any third party website that is external to the App or the Portal being disabled or being unavailable for any reason.

11.9 We agree that We will use all reasonable endeavours to preserve the Content in a readily accessible format (including, where reasonably possible, the format in which You uploaded or otherwise submitted the Content to the Portal) and to ensure that the Content can be accessed at any time.

12  Communications: Unless You expressly inform Us otherwise (including by sending an email to Us unsubscribing from Our email list), You consent to Your receipt, from Us, electronic messages (including email) attaching newsletters and/or updates of future developments.

13  Data Transmissions: You acknowledge and agree that the Internet is an inherently insecure medium, that no data transmission over the Internet can be guaranteed as being totally secure and that Your data (including the Content You upload or otherwise submit to Us) is stored on the Portal at Your own risk. While We take all reasonable steps to protect and secure Your data transmissions to the Portal once We receive the transmission, You agree that to the maximum extent permitted by law, We are not liable to You for any misuse of or unauthorised access to, use of or disclosure of Your data, unless such misuse of or unauthorised access to, use of or disclosure of Your data is as a direct result of any negligent, reckless or intentional act or omission by Us or by Our employees.

14  Intellectual Property:

14.1  Subject to the remainder of this clause 14 (Intellectual Property), You agree as follows:

14.1.1  as between You and Us, all IPR in the App and the Portal (including the Content comprising the App and the Portal) is owned by Us;

14.1.2  to the extent You upload to or provide Content for the App and the Portal, You own the IPR in such Content; and

14.1.3  to the extent that parties other than You and Us upload or provide Content for the Portal, those other parties own the IPR in such Content.

14.2  We acknowledge and agree that any Content which You upload or otherwise provide to Us to be made available on the Portal remains Your property, save that You grant to Us (including the right to grant sub-licences to other Users who have access to Your Content under these Terms of Use) a non-exclusive, perpetual and irrevocable, worldwide, fully paid up licence of the IPR in such Content for any purpose.

14.3  Where You have the right under these Terms of Use to access the Content of third parties (including the Content of a Client to which You are linked by these Terms of Use) then You are granted a limited sub-licence by Us on behalf of the third party to access and view such Content via the Portal. Such licence does not extend to downloading, reproducing, making available, communicating to the public or otherwise exploiting the Content (including the IPR in the Content).

14.4  We grant to You a non-exclusive, fully paid up and non-transferable licence of the IPR in the Portal and the tools we make available via the Portal for Your sole use. You acknowledge and agree that the licence We grant to You under this clause is for personal and non-commercial use only. 

14.5  Except as permitted by law and otherwise to enable You to make full of the Portal in accordance with any operating instructions We make available, You acknowledge and agree that You cannot reproduce, adapt, modify the Portal, the Content or the tools We make available via the Portal otherwise create derivative works therefrom.

15  Warranties and Representations:

15.1  We take all reasonable steps to ensure that the Portal and the Content can be accessed at any time. However, notwithstanding the foregoing, You acknowledge and agree that the Portal and the Content are made available to You on an “as is” and “as available” basis.

15.2  You also acknowledge and agree that the Portal and the Content made available via the Portal contain or comprise confidential and sensitive information (including where supplied by third parties to Us and made available to You in accordance with these Terms of use). You acknowledge and agree that You will maintain the confidentiality of all such information and You agree to immediately notify Us if You become aware of any actual or suspected unauthorised access to or use or disclosure of such information.

15.3  While We take all reasonable steps to maintain the accuracy of information contained on the Portal (including the Content), You acknowledge and agree that, to the maximum extent permitted by law, We make no warranty or representation, nor give any guarantee as to the accuracy, adequacy or completeness of the Content.

15.4  To the maximum extent permitted by law, We make no representation or warranty, nor give any guarantee to You in relation to the Portal or to the Content, including (without limitation):

15.4.1  as to the reliability, suitability or availability of the Portal or the Content;

15.4.2  that access to the Portal and/or to the Content will be secure, uninterrupted or error-free;

15.4.3  that errors or defects with the Portal and/or the Content will be able to be corrected;

15.4.4  that the Portal will operate with any other hardware, software, system or data; or

15.4.5  the accuracy and fairness of the Content.

16  Liability: 

16.1  The liability of either party for a breach of these Terms of Use or for any other common law or statutory cause of action arising out of the operation of these Terms of Use will be determined under the relevant law that is recognised, and would be applied by, the High Court of Australia. 

16.2  To the fullest extent permitted by law, in no event shall We, Our directors, officers, employees or agents, be liable to You for any direct, indirect, incidental, special or consequential loss or damage arising from any:

16.2.1  errors, mistakes or inaccuracies of Content;

16.2.2  personal injury or property damage (of any nature whatsoever) arising or resulting from Your access to and use of the App, the Portal and/or the Content;

16.2.3  any unauthorised access to or use of Our storage system that hosts Your Content, except where such unauthorised access to or use of Our storage system is as a result of some negligent, reckless or wilful act or omission by Us;

16.2.4  any interruption or cessation of transmission to or from the App or the Portal;

16.2.5  any bugs, viruses and/or other malicious code which may be transmitted to or through the App or the Portal by any third party (except where such transmission is facilitated by some negligent, reckless or wilful act or omission by Us); and/or

16.2.6  any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of Your use of any Content posted, emailed, transmitted or otherwise made available via the Portal, whether based on warranty, contract, tort or any other legal theory.

16.3  To the extent that We cannot lawfully exclude Our warranty to You under these Terms of Use, then to the extent permitted by law, We limit Our liability to You to the cost of resupplying the products and/or services to You as contemplated under these Terms of Use.

17  Notices: Without limiting the methods by which a notice or other communication may be given at law, a notice or other communication is properly given or served if it is transmitted by electronic mail or other electronic means to the electronic mail address associated with Your User ID. You agree to promptly notify Us of any change in the electronic mail address associated with Your User ID.

18  Entire Agreement: These Terms of Use constitute the entire agreement with respect to Your use of the Portal and Your right to upload, submit, access and use the Content. These Terms of Use supersede all prior representations, agreements, statements and understandings (whether verbal or in writing) in relation to the subject matter of these Terms of Use.

19  Applicable Law: These Terms of Use are subject to the laws in force in the State of Victoria and You and We both agree to submit to the exclusive jurisdiction of the courts of the State of Victoria with respect to any disputes arising out of or in connection with these Terms of Use.

20  Variation: We may vary these Terms of Use at any time by giving You notice of the variation. Such notice may be given (and You are deemed to have been given notice) by posting a notice of the variation to these Terms of Use reasonably prominently on the Portal. We will use all reasonable endeavours to notify You of any variations to these Terms of Use at least 14 days in advance of the variation taking effect. Such notification will take the form of an email sent to the email address You provide to Us (as updated or replaced from time to time by You), by posting a reasonably prominent link to the varied terms on Our website and/or by posting a reasonably prominent notice in any app We release to support the Portal.

21  Waiver: A waiver by either party of a breach of these Terms of Use will not be regarded as a waiver of any other breach. A party’s failure to enforce a provision of these Terms of Use will not be interpreted as a waiver.

22  Severability: Each provision of these Terms of Use shall be read as separate and separable so that if any provision is void or unenforceable for any reason, that provision will be severed and the remainder will be construed as if the severed provision had never existed.

23  Assignment: We may assign any rights under these Terms of Use to a third party without Your prior written consent. You acknowledge and agree that the rights conferred on You under these Terms of Use are personal to You and cannot be assigned or novated to another party except with Our prior written consent.

24  Further acts: Each party must, without further consideration, sign, execute and deliver any document and perform any other act that is necessary or desirable to give full effect to these Terms of Use.

25  Party preparing document not to be disadvantaged: No rule of contract interpretation must be applied in the interpretation of these Terms of Use to the disadvantage of one party on the basis that it prepared or put forward these Terms of Use or any document comprising these Terms of Use.

26  Termination and Survival: 

26.1  These Terms of Use (except for those clauses which are expressly stated as surviving the termination or expiry of these Terms of Use) expire on the earliest of the following: 

26.1.1  Your death;

26.1.2  the cessation of Our provision of the App, the Portal and the related tools and services;

26.1.3  Your voluntary decision to cease procuring care services from Us by notice to Us through the tools We make available via the App or the Portal; and

26.1.4  Our termination of Your access rights to the Portal (for any of the reasons contemplated in these Terms of Use).

26.2 Clauses 9 (Privacy), 10 (Indemnity), 12 (Communications), 13 (Data Transmission), 14 (Intellectual Property), 15 (Warranties and Representations) and 16 (Liability) survive the termination or expiry of these Terms of Use.

27  Interpretation: In these Terms of Use, unless the contrary intention appears:

27.1  the singular includes the plural and vice versa;

27.2  words importing one gender include other genders;

27.3  a reference to a document or instrument (including these Terms of use) includes that document or instrument as novated, altered or replaced from time to time;

27.4  a reference to an individual or person includes a partnership, body corporate, government authority or agency and vice versa;

27.5  a reference to a party includes that party’s executors, administrators, successors, substitutes and permitted assigns;

27.6  other grammatical forms of defined words or expressions have corresponding meanings;

27.7 a covenant, undertaking, representation, warranty, indemnity or agreement made or given by two or more parties or a party comprised of two or more persons is made or given and binds those parties or persons jointly and severally;

27.8 a reference to a statute, code or other law includes regulations and other instruments made under it and includes consolidations, amendments, reenactments or replacements of any of them;

27.9  all monetary amounts are in Australian dollars;

27.10  a party that is a trustee is bound both personally and in its capacity as trustee; and

27.11  a reference to an authority, institution, association or body (“original entity”) that ceased to exist, been reconstituted, renamed or replaced or whose powers or functions have been transferred to another entity, is a reference to the entity that most closely serves the purposes or objects of the original entity.

Request a Call

Contact a Consultant

Request a Call

Let us know what time suits and we'll ring to answer your queries.

What's the best time to call?

Your Details

Get in Contact

Want to find out more about Tend's services for yourself or a loved one? Get in touch using this form and we'll get back to you as soon as possible

phone

1800 836 322

phone

2/44 Lakeview Dr

Scoresby
VIC, 3179

phone

8:30am-5:00pm

Monday - Friday

Your Message