Terms of Service
Licence to use Gardian Test Tracker
Your use of Gardian software or hardware products is based on the software license and other terms and conditions in effect for the product at the time of purchase. Your agreement to these terms is required to use the product. Be certain to read the applicable terms before you use the product.
1.1 In this Agreement, the following phrases have the corresponding meaning:
a) Apps means the applications distributed by the Licensor which provide access to the Services, collectively and individually, as distributed and amended by the Licensor from time to time, including but not limited to Gardian Test Tracker;
b) Gardian Test Tracker means the software known as “Gardian Test Tracker” which is used for Point of Care Testing procedures;
c) Intellectual Property means any intellectual, industrial or commercial property developed, created, made, discovered, conceived or acquired either individually or jointly during the term of and arising out of or in any way attributable or connected to the development and creation of the intellectual property or which is based on or derived from any confidential information, or developed thereafter including adaptations, including but not limited to:
(i) any patent including inventions and innovations, drawings, models, structures, specifications, improvements, discoveries, creations, ideas, concepts, business methods and processes;
(ii) any trade mark or service mark registered or not including signs, names, logos, symbol, source indication or origin appellation, styles, corporate identities, business reputation, letter, word, signature, numeral, device, brand, heading, label, ticket, packaging, shape, colour, sound or scent or any combination thereof;
(iii) any design including packaging, wraps, containers, appearance, features, shapes, configuration, pattern or ornamentation;
(iv) any copyright or work of authorship including literary, dramatic, musical, artistic works, sound recordings, films, broadcasts, published editions, plans, working drawings, illustrations, graphics, pictures, photographs, negatives, text, audio files, video files, letter heads, marketing material, signs and brochures;
(v) information technology including computer programs, software, hardware, website domain names, source and object codes, layouts, templates, formulae, information technology processes, html files;
(vi) any utility model, eligible layout right or plant variety right;
(vii) any confidential information;
(viii) any other industrial, commercial, agricultural or extractive right derived from intellectual knowledge or activity of any industrial, scientific, literary or artistic nature or description, whether relating to any manufactured or natural product or otherwise; and
(ix) any document of title, letters patent, deed of grant or other document or agreement relating to any previous item, whether registered or unregistered or recorded or unrecorded, stored or incorporated in any medium of any nature or description;
(d) Licence means the licence to use the Licenced Property granted by the Licensor to the Licensee under clause 3;
(e) Licensed Property means the property licenced by the Licensor to the Licensee under the Licence, including any Intellectual Property in the Licensed Property;
(f) Minimum Requirements means the requirements specified in clause 5 and in any Policy Document, provided that where there is any inconsistency between the requirements specified in clause 5 and any policy documents, whichever requirement is higher shall prevail;
(g) Mobile Device means any Mobile Device on which a User installs one of the Apps;
(h) Point of Care Testing means testing conducted outside of a registered pathology laboratory or pathology providers premises;
(i) Policy Documents means the Licensor’s rules and policy documents as amended from time to time, including but not limited to:
(i) the Data Policy, which is available to view at https://www.gardian.tech/data-privacy-policy;
(ii) the Terms and Conditions, which are available to view at https://www.gardian.tech/terms-and-conditions; and
(iii) any other policy, rules or terms implemented and published by the Licensor from time to time;
(j) Restraint Area means (in the following cascading order):
(i) worldwide or if that is deemed unenforceable;
(ii) United States of America, Australia and New Zealand or if that is also deemed unenforceable;
(iii) Australia and New Zealand or if that is also deemed unenforceable
(k) Territory means the geographical locations set forth in item 7 of the Schedule;
(l) Term means until the expiry of the Licence.
(m) User means any person who uses the Services or the Apps;
(n) Website means https://www.gardian.tech/.
1.2 In this Agreement, unless the context otherwise requires:
(a) a reference to persons includes corporations;
(b) words including singular numbers include plural numbers and vice versa;
(c) words including a gender include all genders;
(d) any reference to a Party to this Agreement includes its successors and permitted assigns;
(e) where a word or phrase is defined, its other grammatical forms has a corresponding meaning;
(f) a reference in this Agreement to a statute or a section of a statute includes all amendments to that statute or section passed in substitution for the statute or section referred to and incorporating any of its provisions;
(g) headings and underlinings have been inserted in this Agreement for the purpose of guidance only and do not affect the interpretation of this Agreement;
(h) a reference to a schedule is to a schedule to this Agreement and a reference to a part, clause or other sub-clause is a reference to a part, clause or other sub-clause in this Agreement;
(i) the words “includes” and “including” and words of similar effect are not words of limitation;
(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(k) an agreement, representation or warranty on the part of two or more pers if for the benefit of them jointly and severally;
(l) all references to currency are references to Australian Dollars;
(m) all references to time are references to time on the Gold Coast in the State of Queensland;
(n) all references to business days are references to days that are not Saturday, Sunday or a public holiday on the Gold Coast in the State of Queensland; and
(o) if the day for doing any act by a Party under or pursuant to this Agreement is not a business day, then that act may be performed by the Party on the next business day.
1.3 The Services include the following:
(a) the Gardian Test Tracker and any features thereof;
(b) the Website (including any versions optimised for viewing on a wireless or tablet Device);
(c) any other services that the Licensor makes available which incorporate the terms of this Agreement; and
(collectively the ‘Services’).
2.1 The Licensor grants to the Licensee a non-exclusive licence to use the Licenced Property within the Territory for the Term for the Specific Purpose, subject to the terms of this Agreement.
2.2 Where the Licensor has indicated to the Licensee that the whole or any part or parts of the Licensed Property is confidential material, the Licensee will not at any time during the Term of this Agreement or after its termination or expiration disclose such confidential material to any person or corporation without obtaining prior written consent of the Licensor. The Licensee will take such steps as may be necessary to ensure that any of its servants or agents do not disclose such confidential material.
2.3 The Licensee agrees that it is not permitted to enter into any sub-licences with any third party in relation to any of the Licenced Property and any attempts to do so shall constitute a material breach of this Agreement.
2.4 The Licensee must not assign all or any of its rights given to it under this Agreement without the prior written consent of the Licensor. For the avoidance of doubt, the Licensor may withhold its consent to any request from the Licensee to assign rights given under this Agreement at its absolute discretion.
3. LICENSEE OBLIGATIONS
3.1 During the Term the Licensee must:
(a) promptly advise the Licensor of any litigation or arbitration or threat of litigation or arbitration which may involve the Licensed Property and if requested by the Licensor, keep the Licensor advised of the progress of any litigation or arbitration involving the Licensed Property; and
(b) the Licensee must provide to the Licensor, at the request of the Licensor, copies of any documents or other material including legal advice relating to such litigation or arbitration.
3.2 The Licensee acknowledges and agrees that:
(a) All right, title and interest in the Licensed Property is owned by the Licensor;
(b) The interest in the Licensed Property acquired by the Licensee pursuant to this agreement is contractual only and does not create any proprietary interest in the Licensed Property;
(c) The Licensed Property must only be used or dealt with by the Licensee as provided in this Agreement;
(d)The Licensee must ensure that the Licensed Property is not subjected to any treatment which:
(i) is prejudicial to the honour or reputation of the Licensor; or
(ii) has an adverse affect on the goodwill, reputation or value of the Licenced Property.
4. MINIMUM REQUIREMENTS
4.1 The Licensee acknowledges and agrees:
(a) Connection to Internet
The Apps require stable access to the internet which must be capable of sustaining a connection in order to provide the medical alerts and other functions of the Apps and the Licensor shall not be responsible for any loss or damage resulting from any failure or deficiency in the connection to the internet at the requisite speeds;
5. DATA COLLECTION AND ADVERTISING
5.1 The Licensee acknowledges and agree:
(a) The Apps may collect information about the User, including but not limited to sensitive medical information;
(b) The Licensor may display advertising in the Apps, which may or may not be tailored to the User based on information that the User put into the Apps or data that is collected by the Licensor based on the User’s use of the Apps.
6. POLICY DOCUMENTS
6.1 The Licensee acknowledges and agrees:
(a) to comply with all of the Policy Documents, as amended by the Licensor from time to time, when using the Services;
(b) that the Services are subject to ongoing development and the Licensor may elect to amend any of the Policy Documents from time to time at its utmost discretion; and
(c) that any breach of any term of any Policy Documents by the Licensee shall constitute a breach of its obligations under this Agreement.
7. SOFTWARE UPDATES
7.1 The Licensee agree and acknowledge that:
(a) the Licensor’s provision of the Services is subject to software updates from time to time, which the Licensee may be required to install to continue using the Services; and
(b) the Licensor shall not be liable to the Licensee for any loss or damage arising from or otherwise related to the Licensee being unable to access any of the Services in connection with any software update whatsoever.
8.1 If any Party materially breaches its obligations under this Agreement and fails to remedy such breach within 14 days of receipt of a written notice to remedy the breach, the other Party may immediately terminate this Agreement by written notice to the Party that committed the material breach.
8.2 The Licensor may terminate this Agreement by providing the Licensee with 30 days notice of its intention to terminate this Agreement.
8.3 The Licensor may, by notice in writing, immediately terminate this Agreement in any of the following circumstances:
(a) the Licensee ceases to operate its business;
(b) the Licensee attempts to enter into a sub-licence with a third party in relation to the Licensed Property;
(c) the Licensee commits an act or omission which brings disrepute to the Licensor or has the effect of adversely affecting the value, reputation or goodwill of the Licensed Property;
(d) upon the happening of any of the following insolvency events
(i) the Licensee ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(ii) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the Licensee or any of its assets;
(iii) the Licensee enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;
(iv) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the Licensee; or
(v) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
(e) the making by the Licensee of an assignment or attempted assignment for the benefit of its creditors.
8.4 Termination of this Agreement is without prejudice to any accrued rights of either Party as at the date of termination.
9. EFFECT OF TERMINATION
(9.1) On termination of this Agreement, the Licensee must deliver to the Licensor all documents and other materials (including all copies) in its possession relating to the Licenced Property, as well as any other confidential information provided by the Licensor to the Licensee, and do such further things as may be reasonably required by the Licensor to protect its right, title and interest in the Licenced Property.
(9.2) Upon termination of this Agreement,
(a) all rights in the Licensed Property will remain with the Licensor and the Licensee shall have no right to exploit any Intellectual Property rights in the Licensed Property; and
(b) any copyright, design, or similar such right and any other Intellectual Property right in or that may be created in any Products (or any aspect thereof) or any related materials, including patterns, sketches, logos, designs, packaging, labels, tags, advertising materials or the like, designed in accordance with this Agreement, shall be the exclusive property of Licensor.
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 The Licensee acknowledges and agrees:
(a) The Licensor is unable to guarantee that the use of the Services will be uninterrupted or error free and the Licensee agrees that use of the Services is at its own risk;
(b) The Licensor shall not be liable to the Licensee for any loss, damage, injury, expense or cost, however caused or incurred (including through negligence), which the Licensee may directly or indirectly suffer in connection with its use of the Services, nor any liability for any such loss arising out of the Licensee’s use of or reliance on information contained on or accessed through the Services;
(c) The Licensor shall have no responsibility to the Licensee for any equipment the Licensee uses to access the Services or any loss, damage, injury, expense or cost suffered to that equipment;
(d) The Licensor shall not be liable for any loss resulting from any action taken or reliance made by the Licensee or any User on any content posted by the Licensor. The Licensee and all Users should make their own inquiries and seek independent advice from relevant industry professionals before acting or relying on any content which appears on the Services;
(e) The Licensor shall not be liable for the accuracy or content of any material posted or transmitted by other users on the Services, including but not limited to the Website and/or App. The Licensor shall not be liable for any loss resulting from any action taken or reliance made by the Licensee on any content posted by another User on the Services;
(f) The Licensor shall not have any responsibility or liability for any content which the Licensee or any User posts or transmits to the Services, including but not limited to the Website or App, or any other website (i.e. a review containing defamatory content), nor does the Licensor accept any responsibility for any use or misuse which the Licensee or any other Users or guests make of content which the Licensee posts or transmits through the Services;
(g) If the Licensee downloads any content from the Services, the Licensee acknowledges that the Licensor shall not be liable to the Licensee for any loss, damage, injury, expense or cost, however caused or incurred, arising from the downloading or subsequent use of the downloaded content; and
(h) The Licensor shall have no liability to the Licensee in respect of any loss, damage, injury, expense or cost (including indirect, special or consequential loss or damage) which may be suffered or incurred by the Licensee or which may arise directly or indirectly in respect of the Licensee’s use of any goods or services supplied over the Website or App, to the maximum extent permissible at law.
10.2 The disclaimer set out in this clause 13 of this Agreement does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
10.3 The Licensee must promptly advise the Licensor in writing of any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, charges and expenses which may be brought or claimed against the Licensee or the Licensor or in respect of which the Licensee or the Licensor may become liable arising out of the promotion, sale, supply or other use of the product by the Licensee, its servants or agents.
10.4 The Licensee acknowledges that its use of the Licensed Property is at its own risk and it must comply with all relevant laws and regulations applicable to the Licensees use of the Licensed Property. Any unlawful use of the Licensed Property by the Licensee is at the Licensees own risk and the Licensor will not be held liable or accountable for any such use.
10.5 To the fullest extent permitted by applicable law and without limiting the Licensee’s obligations set forth in this Agreement, the Licensee agrees to indemnify and hold the Licensor harmless from any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, solicitors’ fees, judgments, legal settlements or disbursements of any kind or nature arising from:
(a) the promotion, sale, supply or other use of the Licenced Property by the Licensee, its servants or agents;
(b) The Licensee’s negligence or wilful misconduct; or
(c) The Licensee’s breach of this Agreement, except to the extent it arises from the Licensor’s wilful negligence.
11. CONFIDENTIALITY OBLIGATIONS
11.1 The Licensee must:
(a) keep confidential all information and technical data disclosed by the Licensor to the Licensee provided that the Licensee has the right to disclose such information to its employees insofar as it is necessary for them to know the information for the use of the licences granted in this Agreement; and
(b) not use any of the Licensor’s disclosures or other information or technical data, except for the purposes of the licences granted herein and on the terms of this Agreement.
11.2 Notwithstanding the provisions of the above subclause, the Licensee may disclose information if and to the extent that:
(a) such disclosure is forced by laws, regulations or orders;
(b) the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement; and
(c) the Licensee can prove that he or she knew the information before it was disclosed to him or her by the Company.
11.3 The Licensee acknowledges and agrees that its obligations under this clause 14 shall survive the termination or expiration of this Agreement.
12.1 Copyright in the Services (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by the Licensor. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in the Licensee’s location, and except as expressly authorised by these terms and conditions, the Licensee must not in any form or by any means:
(a) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of the Services; or
(b) commercialise any information, products or services obtained from any part of the Services;
without the Licensor’s written permission.
12.2 Any breach of this clause 15 may result in copyright infringement and the Licensor reserves its rights to instigate civil and/or criminal proceedings, which may attract liability for the Licensee to pay damages or penalties, in relation to any such breach.
13.1 If the Licensee uses any of the Licensor’s trademarks, whether registered or not, in reference to the Licensor’s activities, products or services, the Licensee must include a statement attributing that trade mark to the Licensor. The Licensee must not use any of the Licensor’s trademarks:
(a) in or as the whole or part of the Licensee’s own trademarks;
(b) in connection with activities, products or services which are not part of the Services;
(c) in a manner which may be confusing, misleading or deceptive; or
(d) in a manner that disparages the Licensor or its information, products or services.
13.2 The Licensor provides no license or assignment of any Trademark and the ownership of the Trademark rests with the Licensor, or if licensed to the Licensor, to the owner of that Trademark.
13.3 A breach of this provision may result in trademark infringement and the Licensor reserves its right to instigate civil and/or criminal proceedings, which may attract penalties, in relation to any such breach.
14. OWNERSHIP OF DATA
14.1 By submitting, posting or by otherwise placing any material onto the website or App the Licensee grant to the Licensor in respect of all material a royalty free, perpetual, irrevocable, non-exclusive right and license to use, produce, modify, adapt and/or publish such material and or data as required by law.
14.2 By submitting, posting or by otherwise placing any material onto the website or App, the Licensee warrant that the Licensee is the owner of such material and where the Licensee are not the owner, the Licensee warrants that the owner has provided to the Licensor royalty free, perpetual, irrevocable, non-exclusive right and license to use, produce, modify, adapt and/or publish such material.
15.1 The Licensee expressly covenants that it will not in any capacity (including as a shareholder, officer, sole trader, partner, joint venturer, consultant, agent, employee and/or advisor) without the consent of the Licensor, during the term of this Agreement and following termination of this Agreement during the Restraint Period and within the Restraint Area:
(a) solicit, interfere with or endeavor to entice away from the Licensor any person or entity who at any time during the twelve (12) months prior to the date of this Agreement and up to including the Termination Date, been an employee of the Licensor; and
(b) communicate with or furnish any information or advice to any customer of the Licensor or any supplier of the Licensor for the direct purpose of inducing or causing a customer or supplier of the Licensor to cease being a customer or supplier of the Licensor.
15.2 The Licensee acknowledges that it has had the opportunity to obtain independent legal advice and acknowledges that each restriction specified in this Agreement is in the circumstances reasonable and necessary to protect the Licensor’s legitimate business interests.
15.3 The Licensee acknowledges that the benefits they receives pursuant to this Agreement include adequate consideration for the covenants contained in clause 18.1(a) and 18.1(b).
15.4 The Licensee acknowledges that in the event of breach by them of the obligations contained in clause 18.1(a) and 18.1(b), monetary damages may not be an adequate remedy and any breach may entitle the Licensor to seek an injunction to restrain the committing of any breach of any of the prohibitions or restrictions.
15.5 The Licensee acknowledges and agrees that the covenants in this clause shall survive the termination of this Agreement.
16. DISPUTE RESOLUTION
16.1 Definitions: For the purposes of this clause 16:
(a) Complainant means the person who starts the procedure in this Section.
(b) Respondent means the person with whom the Complainant has a dispute.
(c) Mediator means a person filling that role in relation to a dispute between the parties, howsoever that person is appointed.
Except where a party to this Agreement seeks urgent interlocutory relief, where a dispute arises in relation to this Agreement, the Complainant must start the procedure outlined in this clause in which case the Respondent will abide by that procedure.
(a) The Complainant will advise the Respondent that there is a dispute and will notify the Respondent in writing (“Complainant’s Notice”) of:
(i) the nature of the dispute;
(ii) what outcome the Complainant wants; and
(iii) what action the Complainant thinks will settle or resolve the dispute.
(b) The parties must use their best endeavours to negotiate in good faith to attempt to resolve the dispute. If the parties cannot agree on a resolution within 14 business days of service of the Complainant’s Notice, the matter will be referred to mediation.
(a) The parties will agree on a Mediator, and providing agreement is reached, either party may refer the matter to a Mediator agreed upon between the parties.
(b) If the parties cannot agree about who should be the Mediator within 15 business days of the date of service of the Complainant’s Notice, either party may ask the President of the Queensland Law Society at that time to appoint a Mediator.
(c) The Mediator may decide the time and place for mediation of the dispute.
(d) The parties must attend the mediation of the dispute and use their best endeavours to resolve the dispute.
(a) The parties agree to be equally liable for the costs of any mediation conducted in accordance with this clause, unless they agree otherwise.
(b) Each party shall be responsible to pay for their own costs of attending any Mediation.
16.6 Commencing Legal Proceedings
Nothing in this clause affects the right of any party to this Agreement to commence legal proceedings under this Agreement. However, the Licensee agrees to follow the agreed dispute resolution process set out in in subclauses 19.1 to 19.5.
16.7 No Class Action Matters
(a) The Parties agree that each may bring claims against the other only in their individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding or as an association. Disputes will be mediated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.
(b) the Parties also agree that there is no right or authority for any Dispute to be mediated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then the agreement in clause 18 to mediate will not apply and the Dispute must be brought exclusively in court.
17. FORCE MAJEURE
17.1 No Party shall be liable for any costs or damages due to delay or non-performance under this Agreement arising out of any cause or event beyond such Party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other Party as a result of work stoppage, power or other mechanical failure, computer virus, natural disaster, governmental action, communication disruption, an outbreak of a pandemic disease or government regulation (“Force Majeure Event”).
17.2 During the Force Majeure event any payment obligations under this Agreement will be suspended until the Force Majeure event has ended. Upon cessation of the Force Majeure event, the Licensee will have sixty (60) days to make payment of any suspended payments suspended during the Force Majeure Event.
17.3 Should the Force Majeure event continue for a period of ninety (90) days or longer, any Party may terminate this Agreement.
Any waiver in regard to the performance of this Agreement must be in writing and applies only to the specified instance, and must not affect the existence and continued applicability of the terms of it thereafter.
18.2 Entire Agreement
This Agreement embodies all the terms binding between the parties and replaces all previous representations or proposals.
(a) The Licensee must not assign all or any of its rights in this Agreement without the prior written consent of the Licensor, which consent the Licensor may grant or not in its absolute discretion; and
(b) The Licensor may at its discretion assign all or any of its rights under this Agreement.
This Agreement may not be varied except in writing signed by the parties
These terms and conditions are governed by the laws in force in the State of Queensland and the Parties agree to submit to the non-exclusive jurisdiction of the Courts of the State of Queensland.
If any provision of this Agreement is held by a court to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation it must be severed so that the validity and enforceability of the remaining provisions are not affected;
(a) All notices must be in writing and be given by any one of the following means:
(i) By email to the other Party’s Email Address;
(ii) by delivering it to the business address of the party on a business day during normal business hours; and
(iii) by sending it to the address of the party by registered post.
(b) A notice is deemed to be given and received:
(i) if given in accordance with clause 21.7(a)(i):
A. Where the email is transmitted before 4:00pm in the place of delivery, on the next business day after the day of delivery in the place of delivery; and
B. Where the email is transmitted after 4:00pm in the place of delivery, on the second business day occurring after the day of delivery in the place of delivery;
(ii) if given in accordance with clause 21.7(a)(ii), on the next business day after the day of delivery in the place of delivery; and
(iii) if given in accordance with clause 21.7(a)(iii), five (5) clear business days after the day of posting in the place of delivery.
18.8 Further agreements
Each party must execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as necessary to give effect to this Agreement
18.9 GST and Duties
(a) If GST is payable in respect of payments made by the Licensee to the Licensor under this Agreement, the amounts payable will be increased by the amount of the GST, provided that:
(i) the Licensor is registered for the purposes of GST; and
(ii) the Licensor will provide the Licensee with a GST Invoice.
(b) All stamp duties and governmental charges arising out of or incidental to this Agreement are the responsibility of and must be paid by the Licensee.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The Parties to this Agreement may deliver a counterpart to the other Parties using electronic transmission, including but not limited to email.
18.11 Relationship of Parties
The Parties agree that no joint venture, partnership, employment, or agency relationship exists between the Licensee and the Licensor as a result of this Agreement.