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End User Licence Agreement

GARDIAN TEST TRACKER AND GARDIAN SELF CHECK
1.    PREFACE AND PURPOSE

1.1    Please read each provision of this End User Licence Agreement carefully. It sets forth the legally binding terms and conditions for Your use of the Software (defined below). By accessing and/or using Our Software, You agree to be legally bound by this Agreement. If You do not agree to this Agreement and the conditions of use stated herein, do not use the Software. Use of the Software (defined below) will be deemed as acceptance of this “End User Licence Agreement”. 
1.2    Persons using our Software that are over 18 years of age will be bound by the terms of service contained in this Agreement. 
1.3    In the event that a User of the Software is under 18 years of age:
(a)    the use of Software will also be binding on that User as the use of the Software aims at delivering health care Software to Users for their benefit and protection;
(b)    All Users under 18 agree that they are using the Software to benefit their health and protect their best interests which makes this End User Licence Agreement binding on persons under 18 years of age;
(c)    Only in the event that a court of competent jurisdiction determines that the User, being under 18 years of age is not bound to this End User Licence Agreement document, then and only then will the User be released from their obligations outlined herein. 


2.    APPLICATION AND TERMINOLOGY 
2.1    This End User Licence Agreement (collectively, the “Agreement”) is a legally binding agreement between You (“You” or “Your”) and Gardian Technologies Pty Ltd ACN 642 320 698 (“We” “Us”, “Our”, “Gardian”). This Agreement states the material terms and conditions that govern Your use of Our Software.
2.2    In this Agreement, the following phrases have the corresponding meaning:
(a)    Authority means any federal, state or local government, semi government, quasi government or other body or authority statutory or otherwise including, but not limited to, any court or tribunal;
(b)    Gardian Self Check means the software known as Gardian Self Check;
(c)    Gardian Test Tracker means the software known as Gardian Test Tracker;
(d)    Policy Documents means Gardian’s rules and policy documents as amended from time to time, including but not limited to:
(i)    the Data Privacy Policy, which is available to view at https://www.gardian.tech/data-privacy-policy; and
(ii)    any other policy, rules or terms implemented and published by Gardian from time to time;
(e)    Software means Gardian Self Check and Gardian Test Tracker;
(f)    Testing Kit means rapid antigen testing kits designed to test for the presence of the disease known as COVID-19 which have been approved for use with the Software by Gardian; and
(g)    User means any person who uses the Software.


3.    USE OF SOFTWARE
3.1    The Software will track and store the results of any Testing Kits where you choose to upload the results of that Testing Kit into the Software.
3.2    Where you have purchased a licence to use the Software, that licence to use the Software is subject to the terms of this Agreement. For the avoidance of doubt, the terms of this Agreement will prevail over any terms specified by the seller of the licence at the time of the sale to the extent of any inconsistency and You acknowledge and agree that We will have no liability to You whatsoever for any representations of any third party.
3.3    Each licence to use the Software entitles the holder to upload the results from one (1) Testing Kit into the Software and then subsequently view those results from through the Software. If a User wishes to upload more than one (1) result from a Testing Kit to the Software, the User must purchase one licence for each result from a Testing Kit.


4.    ACCOUNT REGISTRATION AND SECURITY
4.1    You acknowledge and agree that You will need to create an account to have access to the Software. 
4.2    You acknowledge and agree that: 
(a)    You must provide true, accurate, current and complete information about You as prompted by the Software’s registration or subscription page (“Registration Data”); 
(b)    You must maintain and keep true, accurate, current and complete the Registration Data, including but not limited to promptly updating the Registration Data upon any change in Your circumstances; 
(c)    If You provide any Registration Data that is untrue, inaccurate, not current or incomplete, or We have reasonable grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, We have the right to:
(i)    suspend or terminate Your account; and 
(ii)    suspend, refuse or revoke any and all current or future access to the Software (or any portion thereof) by You;
(d)    You are entirely responsible for the security and confidentiality of Your password and account; 
(e)    You must not share Your account information or Your username and password with any third party or permit any third party to logon to the Software using Your account information;
(f)    You must immediately notify Us of any unauthorised use of or access to Your account or any other breach of security of which You become aware; and
(g)    You are responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Software.
4.3    You shall promptly and completely:
(a)    Create and accurately complete all necessary portions of participants registration profile, including provide answers to health questions, medical information, current symptoms, and exposure history; and
(b)    Provide such participant materials or information as We may reasonably request to carry out the testing services in a timely manner. Participant shall ensure that such participant materials or information are complete and accurate in all material aspects.
4.4    Please note that anyone capable of using or otherwise accessing Your personally identifiable information will be able to access Your account so You should take all reasonable steps to protect this information to prevent other persons from using it to access Your account. 
4.5    You acknowledge and agree that accurate processing of any results from any Testing Kits is contingent on You providing full, complete and accurate medical information.
4.6    By uploading any results from any testing kit into the Software, you are acknowledging and agreeing that You are consenting to Us to hold those results subject to our Privacy Policy.


5.    DATA COLLECTION
5.1    You acknowledge and agree:
(a)    The Software may collect information about You, including but not limited information about your health;
(b)    The Software may share information collected about You with other Users of the Software where you agree to provide those other Users with access to your information, including but not limited to your employer where you authorise your employer to access the results you upload to the Software;
(c)    Gardian shall not be liable for any use or misuse of any information that you share with another User of the Software under clause 6.1(b);
(d)    The Software will collect information about the performance of the Testing Kits in detecting COVID 19, including but not limited to data that measures the accuracy of the Testing Kits, and We may share that information with the manufacturer and/or distributor of those Testing Kits; and
(e)    We may display advertising in the Software, which may or may not be tailored to You based on information that You put into the Software or data that is collected by Us based on Your use of the Software, and You consent to receive such advertising.
5.2    You agree and acknowledge that You will have no claim to ownership of any data or any licence to use any data that may have been created from Your use of Our Software. You also agree and acknowledge that We are the lawful owner of any and all data created by Your use of the Software
5.3    You acknowledge and agree that Gardian shall hold right and title to any intellectual property rights in and to the results of the Testing Kits uploaded to the Software, in a de-identified form, including any derivative works of information created from or with those results of the Testing Kits.
5.4    You acknowledge and agree that We may disclose any results of any testing Kits uploaded to the Software to any relevant Authority where we are obligated to report those results under any applicable law. You agree that We will have no liability to You for any loss or damage that you may suffer as a result of any subsequent use of or reliance upon that information by the relevant Authority whatsoever. Participant expressly agrees to waive any applicable protections under the Privacy Act 1988 (Cth) only to the extent necessary to fulfill this section.


6.    POLICY DOCUMENTS
6.1    You acknowledge and agree:
(a)    to comply with all of the Policy Documents, as amended by Us from time to time, when using the Software; 
(b)    that the Software are subject to ongoing development and We may elect to amend any of the Policy Documents from time to time at our utmost discretion; and
(c)    that any breach of any term of any Policy Documents by You shall constitute a breach of Your obligations under this Agreement.


7.    SOFTWARE UPDATES
7.1    You agree and acknowledge that:
(a)    Our provision of the Software is subject to software updates from time to time, which You may be required to install to continue using the Software;
(b)    We may amend the terms of this Agreement when we make a software update available for download; and
(c)    Your continued use of the Software after any amendment to the terms of this Agreement shall constitute Your acceptance of those amended terms.


8.    TERMINATION 
8.1    At any time, We may immediately terminate Your right to use the Software where you have breach any of the terms of this Agreement without notice.
8.2    You may terminate Your use of the Software at any time, however You agree and accept that We will be the lawful owner of all data created from Your use of Our Software.


9.    INDEMNITY 
9.1    To the fullest extent permitted by applicable law and without limiting Your obligations set forth in this Agreement, You agree to indemnify and hold Us 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)    Your negligence or wilful misconduct; or
(b)    Your breach of this Agreement, except to the extent it arises from Our wilful negligence.


10.    DISCLAIMER AND LIMITATION OF LIABILITY 
10.1    You acknowledge and agree:
(a)    We are unable to guarantee that the use of the Software will be uninterrupted or error free and You agree that use of the Software is at Your own risk;
(b)    We do not accept responsibility for any loss, damage, injury, expense or cost, however caused or incurred (including through negligence), which You may directly or indirectly suffer in connection with Your use of the Software, nor do we accept any responsibility for any such loss arising out of Your use of or reliance on information contained on or accessed through our Software;
(c)    We accept no responsibility for any equipment You use to access the Software or any loss, damage, injury, expense or cost suffered to that equipment;
(d)    We do not accept any responsibility or liability for any content which You post or transmit to Our Software, nor do we accept any responsibility for any use or misuse which You, or any other person you authorise to access that content, make of content which You post or transmit;
(e)    If You download any content from Our Software, You acknowledge that we are not liable to You for any loss, damage, injury, expense or cost, however caused or incurred, arising from the downloading or subsequent use of the downloaded content;
(f)    You agree that we are under no liability to You 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 You or which may arise directly or indirectly in respect of Your use of Our Software, to the maximum extent permissible at law.
10.2    Except for the representations and warranties expressly set forth in this agreement and any guarantees arising under the Competition and Consumer Act 2010 (Cth), We make no representation or warranty whatsoever with respect to the Software.
10.3    The disclaimer in this clause 11 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.


11.    RELEASE OF LIABILITY
11.1    It is agreed that “Claims” means, collectively, and without limitation, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including solicitor fees, whether incurred pre-litigation, pre-trial, at trial, on appeal, or otherwise), damages of any kind whatsoever (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to any of the Software, jointly or used individually. 
11.2    You agree and acknowledge that “Released Persons” means Us and all of Our owners, managers, affiliates, employees, agents, representatives, successors, assigns, licensors, licensees, distributors, vendors or third parties with whom We authorise or otherwise partner with to distribute, market or otherwise commercialise the Software.
11.3    In exchange for being allowed to use the Software, and other equipment or related information provided by Us, You (acting for You and for all of Your heirs, agents, affiliates, representatives, successors, and assigns) agree to release all Released Persons from All Claims.


12.    COPYRIGHT
12.1    Copyright in the Software (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by Us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in Your location, and except as expressly authorised by these terms and conditions, You 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 Software; or
(b)    commercialise any information, products or Software obtained from any part of the Software;
without Our written permission.
12.2    Any breach of this clause 14 may result in copyright infringement and We reserve Our right to instigate civil and/or criminal proceedings, which may attract liability for You to pay damages or penalties, in relation to any such breach.


13.    TRADEMARKS 
13.1    Except where otherwise specified, any word or device to which is attached the ™ or ® symbol is a registered trademark.
13.2    If You use any of Our trademarks, whether registered or not, in reference to Our activities, products or Software, You must include a statement attributing that trade mark to us. You must not use any of Our trademarks:
(a)    in or as the whole or part of Your own trademarks;
(b)    in connection with activities, products or Software which are not Ours;
(c)    in a manner which may be confusing, misleading or deceptive; or
(d)    in a manner that disparages us or Our information, products or Software (including this website).
13.3    We provide no license or assignment of any Trademark and the ownership of the Trademark rests with Us, or if licensed to Us, to the owner of that Trademark.
13.4    Any breach of this provision may result in trademark infringement and We reserve Our right to instigate civil and/or criminal proceedings, which may attract penalties, in relation to any such breach.


14.    LINKED WEBSITES
14.1    Our Software may contain links to other websites ("linked websites"). Those links are provided for convenience only and may not remain current or be maintained.
14.2    You agree and accept that We are not responsible for the content or privacy practices associated with linked websites.
14.3    Any link in the Software to any linked websites should not be construed as an endorsement, approval or recommendation by Us of the owners or operators of those linked websites, or of any information, graphics, materials, products or Software referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
14.4    Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst We strive to protect such information, We do not warrant and cannot ensure the security of any information which You transmit to us. Accordingly, any information which You transmit to Us is transmitted at Your own risk. Nevertheless, once we receive Your transmission, we will take reasonable steps to preserve the security of such information.


15.    DISPUTE RESOLUTION  
15.1    Definitions: For the purposes of this clause 19:
(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.
15.2    Dispute
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.
15.3    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.
15.4    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.
15.5    Costs
(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.
15.6    Commencing Legal Proceedings 
Nothing in this clause affects the right of any party to this Agreement to commence legal proceedings under this Agreement. However, You agree to follow the agreed dispute resolution process set out in in subclauses 18.1 to 18.5.
15.7    No Class Action Matters 
(a)    You and We agree that each may bring claims against the other only in Your or Our 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)    You and We 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 16.4 to mediate will not apply and the Dispute must be brought exclusively in court.


16.    JURISDICTION 
16.1    These terms and conditions are governed by the laws in force in the State of New South Wales, Australia. 
16.2    You agree to submit to the non-exclusive jurisdiction of the Courts of the State of Queensland and the State of New South Wales.


17.    MISCELLANEOUS 
17.1    We shall not be liable for any failure to comply with the terms of this Agreement where such failure arises out of any circumstance or event beyond Our reasonable control, including but not limited to cessation of Software, computer virus, natural disaster, governmental action, communication disruption, an outbreak of a pandemic disease or governmental regulation.
17.2    If we waive any rights available to us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion or that we will not have recourse to those rights at a later date. 
17.3    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 read down to avoid being unlawful, invalid, unenforceable or in conflict, provided that where the provision cannot be read down, the provision must be severed so that the validity and enforceability of the remaining provisions are not affected.
17.4    You agree that no joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this Agreement or Your use of the Software.  
17.5    Unless otherwise specified herein, this Agreement constitutes the entire agreement between You and Us and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and Us with respect to the website. 
17.6    A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 
18.    No rules of construction shall apply to the disadvantage of a party on the basis that that party was responsible for the preparation of this Agreement or any part of it.
18.1    We reserve the right to amend these terms and conditions from time to time. Amendments will be effective immediately upon notification on this website or Application as the case may be. Your continued use of the website following such notification will represent an agreement by You to be bound by the terms and conditions as amended.

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