CDMpal APP User Terms and Conditions

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1. Introduction

1.1 The CDMpal App and the Services made available through the mobile application are owned by CDMPRO Pty Ltd (ACN 666 351 444) (CDMPRO, our, us or we).

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

1.3 In this agreement, you and your means the individual who accesses or uses the CDMpal App and the Services, and whose details are listed in the Account (and includes anyone acting on your behalf or with your express or implied authority).

2. CDMPAL APP

The CDMpal App is a personal clinical information and management system made available through a mobile application on a subscription basis that assists individual users to:

(a) securely receive, view, store, track and manage their health, medical and pharmaceutical related information and data (including, but not limited to, your medical history (such as your height, weight, blook pressure, fluid intake and output, temperature, blood oxygen saturation, allergies, dietary and nutritional information), notes of your symptoms or diagnosis, specialist reports and test results, specialist and healthcare professional referrals, medical certificates, information about a healthcare services you have received or are scheduled to receive, healthcare plans, action plans, photographs,  prescriptions and other pharmaceutical purchases and usage, hospital admission and discharge letters, demographic information, power of attorneys and advanced care directives and any of your other Personal Information and Sensitive Information uploaded or published by you or your Paired Users on, or via, the CDMpal App (collectively, User Data); d

(b) share their User Data with Authorised Users and Paired Users (on a restricted or unrestricted basis) and allows Paired Users to upload, download, view and access User Data through the CDMpal App; and

(c) manage their treatment and medication using calendar reminders tools,

 (collectively, the Services).  

2.2 Although CDMPRO provides you with access to your personal health, medical and pharmaceutical information and data through the CDMpal App and Services, CDMPRO are not medical practitioners or other health care providers, and we are not providing you with medical or healthcare advice or medical services of any kind. The CDMpal App is a mere online resource and tool for users to receive, view, store, track, share and manage their health, medical and pharmaceutical related information and data (whether uploaded or submitted by you, someone else on your behalf or Paired Users). Our role in providing you with access and use of the CDMpal App and the Services should be construed strictly in this context only.

2.3 By downloading, accessing and using the CDMpal App, we grant you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the CDMpal App and the Services for the Subscription Term.

2.4 You must only use the CDMpal App and Services for personal and internal business purposes. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.

3. Subscription Term

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

3.2 If you do not wish to continue to access and use the CDMpal App and Services following the expiry of the Trial Period, you must terminate the agreement prior to the expiry of the Trial Period by selecting the ‘deactivate or cancel account’ function under the ‘personal information’ section in the dropdown side menu on the CDMpal App. 

4. Registrations and Access

4.1 To access and use the CDMpal App and the Services, you must:

(a) download the CDMpal App from the Apple store or Google Play store; and

(b) create and setup an account on the CDMpal App (Account). Your Account will be operated by your email address or Google or Apple authentication (User Name) and password (Password). You can change your Password at any time by using the ‘forgot password’ function on the User Access Portal.  

4.2 To setup an Account on the CDMpal App, you:

(a) will be required to provide, and keep us up-to-date with, accurate registration information and Personal Information (including full name, email address, date of birth, sex at birth and location). All Personal Information as well as the information you provide to setup your Account is subject to our Privacy Policy; and

(b) must be over 17 years of age, and legally able to enter into contractual relations. If you are under the age of 17 years, you may only access and use the CDMpal App and Services if you have your parents’/guardians’ permission to access and use the CDMpal App and Services. Your continued use of the Account constitutes an acknowledgement by you that you are: (i) over 17 years of age; or (ii) under 17 years of age, but have your parents’/guardians’ permission to access and use the CDMpal App and Services and that your parents/ guardians have agreed to abide by this agreement.

4.3 You are responsible for:

(a) maintaining control over, and the confidentiality of, your Account, User Name and Password;

(b) keeping your Account registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the CDMpal App or the Services;

(c) notifying us in writing of any unauthorised access to, or use of, your Account, User Name or Password; and

(d) for all activities or transactions that occur using your Account. We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your Account, User Name and Password.

5. Your Obligations

5.1 When accessing and using the CDMpal App and the Services, you must at all times:

(a) obtain and maintain all hardware, software and communications equipment necessary to download, access, and use, the CDMpal App and the Services;

(b) comply with all Relevant Laws with respect to your obligations under this agreement; and

(c) comply with all of our directions, policies and guidelines advised in writing to you or as displayed on the CDMpal App from time to time.

5.2 CDMPRO will not be liable to you or anyone else if, for any reason, the CDMpal App and the Services are unavailable at any time or for any period. From time to time, CDMPRO may suspend or restrict access to all, or some parts of the CDMpal App and the Services. You are responsible for making all arrangements necessary for you to download, access and use the CDMpal App and the Services.

5.3 You (and your Authorised Users or Paired Users) must not:

(a) permit any unauthorised person to access or use your Account or Password;

(b) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the CDMpal App;

(c) violate any CDMPRO IP or any third party service provider’s Intellectual Property Rights;

(d) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the CDMpal App, or any other third party software that you may access or use through the CDMpal App, in any way;

(e) access all or any part of the CDMpal App and/or the Services in order to build a product, service or code which competes or reproduces the CDMpal App and/or the Services (in full or part);

(f) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the CDMpal App in any way, or otherwise learn the source code or algorithms underlying the CDMpal App;

(g) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, encumber or otherwise make the CDMpal App and the Services available to any third party;

(h) use the CDMpal App or the Services for any unlawful purpose or other purpose not authorised by CDMPRO in writing or otherwise access and use CDMpal App and/or the Services in any way that breaches any Relevant Laws;

(i) use the CDMpal App or the Services in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;

(j) publish, post or upload User Data intended to harm someone in any way or that is libelous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist, harassing, threatening, seditious, violent, blasphemous, invasive of privacy or publicity rights, abusive, inflammatory, discriminatory or otherwise objectionable; and

(k) publish, post or upload any User Data that is false, misleading or deceptive or is likely to be false, misleading or deceptive (including, but not limited to, impersonating another person or user or misrepresenting your identity to users of the CDMpal App).

5.4 You and your Authorised Users and Paired Users must:

(a) access and use the CDMpal App and the Services only for lawful purposes;

(b) ensure that any User Data uploaded, posted or transmitted through the CDMpal App is appropriate, accurate, reliable, up-to-date, and complete; and

(c) comply with all Relevant Laws (including Privacy Laws) in respect of your access and use of the CDMpal App and the Services.

6. Authorised Users and Paired Users

6.1 At any time during the Subscription Term and Trial Period, you can:

(a) pair or connect with, or disconnect from, a Paired User; and

(b) link to, or disconnect from, an Authorised User.

6.2 In order for an Authorised User to link to your Account:

(a) the Authorised User must first download the CDMpal App and create their own Account; and

(b) you must generate a unique QR Code through the CDMpal App and you must share the QR Code with the Authorised User. The Authorised User can use the QR Code to link to your Account. Once the Authorised User has connected to your Account, the QR Code cannot be used again, and you will need to generate a new QR Code if you wish to link your Account to another Authorised User.

6.3 In order for a Paired User to pair or connect with you:

(a) the Paired User must first have a subscription or licence to use to the MGTcare Platform;

(b) the Paired User must open your patient record in the MGTcare Platform and select the ‘pairing’ function within the CDMpal section of the MGTcare Platform. The MGTcare Platform will generate a unique pairing code (Pairing Code) which the Paired User must share with you;

(c) you must click the ‘pairing icon’ in the CDMpal App and then input the Pairing Code supplied to you by the Paired User; and

(d) payment of the Pairing Fee is required to be made by you.

6.4 When you connect or pair with Paired Users, you grant the Paired User the following rights:

(a) the right to access and view certain User Data based on the user permissions granted by you to the Paired User. The Paired User will not be able to access and view all your User Data – only the User Data you grant the Paired User permission to access and view. We encourage you to periodically review the rights you have granted to Paired Users;  

(b) the right to request that User Data be uploaded to your Account. You may accept or reject each request made by a Paired User’s to upload User Data to your Account; and

(c) perpetual viewing rights or one-off viewing rights that automatically expire after the Paired User has finished viewing the User Data.

6.5 When you link to Authorised Users, you are grant the Authorised User the following access rights:

(a)  access rights only to your User Data; or

(b) access and edit rights only to your User Data.

6.6 If you are (as a Paired User or Authorised User) accessing the Account of another user of the CDMpal App (Customer) as their Authorised User or Paired User, you:

(a) must take reasonable steps to ensure the Customer is aware of, and consents, to you accessing their Account (including User Data);  

(b) must ensure you have the authority to access, view, edit, upload or download the Customer’s User Data;

(c) must implement security measures to ensure that no unauthorised person may gain access to the Customer’s User Data;

(d) must not delete or modify the User Data without the Customer’s consent;

(e) must not share, distribute, sell, license, lease, transfer or otherwise exploit the User Data of the Customer; and

(f) are responsible for any Loss, corruption, alteration or damage to the User Data of a Customer or any unauthorised access or disclosure of the User Data of a Customer caused by your acts or omissions.

7. User Data

7.1 When you create your Account and access the CDMpal App and/or the Services, you will be required to provide User Data to CDMPRO. You will retain ownership of the User Data uploaded or published by you (or your Authorised Users) on the CDMpal App, and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Data. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Data displayed on the CDMpal App by you or your Authorised Users (or any Content or Third Party Products or Services displayed or published on the CDMpal App by a third party service provider) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Content or Third Party Products or Services displayed on, or via,  the CDMpal App.  You and your Authorised Users (and not CDMPRO) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you (or your Authorised Users) on, or via, the CDMpal App.

7.2 You agree not to submit, publish or input User Data (including Personal Information and Sensitive Information) or any other information onto the CDMpal App, unless you have the right to do so (and you will ensure that your Authorised Users comply with this obligation).

7.3 You grant CDMPRO a worldwide, non-revocable, non-exclusive, royalty-free and perpetual licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, your User Data, your registration information, analytics  and other statistical or behavioural data derived from use of the CDMpal App and/or the Services for  the purpose of:

(a) enabling CDMPRO to provide the CDMpal App and the Services and otherwise perform its obligations and exercising its rights under this agreement;

(b) informing the user of other products or services that CDMPRO may offer from time to time or in relation to Third Party Products and Services;

(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request; and

(d) using your User Data (identifying usage patterns, trends, and other statistical or behavioural data derived from use of the CDMpal App and Services), in aggregated anonymised form, for the purpose of performing or improving the CDMpal App and/or the Services (including, but limited to, developing, testing, training of current and future algorithms, AI and machine learning modules).

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

7.5 CDMPRO shall not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Data caused by us, your acts or omissions or the acts of omissions of your Authorised Users or other users of the CDMpal App or any third party.

7.6 You agree to make your own enquiries to verify the information, data, Content and User Data displayed on, or via, the CDMpal App (including Third Party Products and Services) and to assess the suitability of any information, data, User Data or Content before relying upon such information, data, User Data or Content. If you choose to rely upon any information, data, User Data or Content displayed or published on, or via, the CDMpal App and/or the Services (including Third Party Products and Services) you do so at your own risk. We make no representations or warranties that use of the Content, User Data and Third Party Products and Services will not infringe any third party’s Intellectual Property Rights.

8. Subscription Fee and Payment

8.1 Except for during the Trial Period, to access and use the CDMpal App and the Services, you must pay the Subscription Fees and other amounts owing to us under this agreement during the Subscription Term. The Subscription Fee is an annual fee that is payable by making an in-app purchase through the ‘subscription’ function on your mobile device.  

8.2 During the Trial Period and the Subscription Term, you must pay the Pairing Fee if you wish to pair or connect with Paired Users, except the first time you pay the Subscription Fee, we will grant you the right to connect to one Paired User (at no extra cost). As Paired Users may incur administration and other technology costs pairing with you, CDMPRO may, at our absolute discretion, forward the paid Pairing Fee to the Paired User.

8.3 In addition to the Subscription Fee, you may be required to pay an additional storage fee if the User Data stored on the CDMpal App by you exceeds the standard storage capacity of your Account (Storage Fee). If you exceed the standard storage capacity of your Account, we will let you know.

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

8.5 When setting up your Account, pairing with a Paired User or upgrading your data storage capacity, you will need to make an in-app purchase to pay the Subscription Fees, Pairing Fee, Storage Fees or any other amount payable to us under this agreement. CDMPRO may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the CDMpal App and Services at any time.

8.6 By making payment of the Subscription Fees, Pairing Fee, Storage Fees or any other amount owing to CDMPRO under the agreement, you will provide Google Pay or Apple Pay (Third Party Payment Processors) with accurate and complete billing information, and you authorise the Third Party Payment Processors to access your billing information (including Personal Information) for the purpose of processing your payment.

8.7 CDMPRO may increase the Subscription Fee, Pairing Fee or any other fees payable to us under this agreement for the provision of the CDMpal App and the Services (or charge new fees to access new functions and features of the CDMpal App) at any time on 30 days’ written notice to you. If you do not agree to these fee increases, you may delete your Account by selecting the ‘deactivate or cancel account’ function under the ‘personal information’ section in the dropdown side menu on the CDMpal App any time before the next billing cycle. If you continue to use the CDMpal App and Services after the fee increase has come into effect, you are assumed to have agreed to the fee increase.

9. Intellectual Property

9.1 You acknowledge that CDMPRO, or our licensor (Modern Innovations Pty Ltd), are the owners of the CDMpal App (and any Intellectual Property Rights contained therein) including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the CDMpal App and the Services (including any modifications, enhancements of the foregoing) (collectively, CDMPRO IP)). Accessing and using the CDMpal App and the Services does not give you (or anyone else) ownership of, or any right, title or interest in CDMPRO IP.

9.2 Ownership of any User Data uploaded or published by you or your Authorised Users and/or Paired Users will belong to you, but excluding CDMPRO IP.

10. Our Obligations

10.1 Subject to your compliance with the terms of this agreement, during the Subscription Term and Trial Period, CDMPRO shall use reasonable endeavours to provide you with access to and use of the CDMpal App and the Services.

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

(a) any non-conformance which is caused, or contributed to, by use of the Services and the CDMpal App contrary to our instructions or the terms of this agreement;

(b) modification or alteration of the Services and the CDMpal App by any party other than CDMPRO or our duly authorised Personnel;

(c) the unsuitability or malfunction of the computer hardware or computer software used by you in conjunction with which the CDMpal App and the Services are used;

(d) Force Majeure Events; and

(e) the unsuitability or malfunction of the Services when used in conjunction with any software, apps, applications and tools supplied by a third party provider.

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

11. Third Party Products and Services

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

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

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

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

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

(a) the extent of CDMPRO’s ability to pass on such rights to you; or

(b) the relevant third party licensor terms.

12. Warranties

12.1 You acknowledge that CDMPRO are not Medical Providers or appointment reminder service providers, and we are not providing medical or healthcare advice or health services of any kind to you. While User Data created or generated by you (or your Authorised Users and/or Paired Users) and the Content made available to you by us (including Third Party Products and Services made available to you by third party providers) through the CDMpal App (including health alerts and warnings) are designed to provide you with general medical and health information, it is not a substitute for professional medical advice, health services or healthcare treatments. Reliance on, and use of, the Content, User Content and Third Party Products and Services is at your own risk.

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

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

12.4 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, CDMPRO make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency, validity or security of the CDMpal App and the Services (or any Content, User Data and Third Party Products and Services generated or made available through the CDMpal App and Services) and CDMPRO will not be liable if the CDMpal App or the Services becomes unavailable for any reason, including directly, or indirectly as a result of:

(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

(b) negligent, malicious, willful acts or omissions of third parties (including third party service providers) or other users;

(c) maintenance or repairs carried out by CDMPRO or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the CDMpal App (such as the MGTcare Platform);

(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or

(e) a Force Majeure Event.

12.5 You acknowledge that, to the maximum extent permitted by Relevant Laws, CDMPRO do not make any warranty or representation that:

(a) your access to, and use of, the CDMpal App and the Services will be uninterrupted, virus-free or error-free; and/or

(b) the CDMpal App and the Services (or any Content, User Data and/or Third Party Products and Services), will be accurate, complete, reliable, current or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.

12.6 You acknowledge that your access to, and use of, the CDMpal App and Services (including Content, Third Party Products and Services) may be interrupted or unavailable during scheduled or unscheduled maintenance.

13. Limitations of Liabilty

13.1 To the maximum extent permitted by Relevant Laws, CDMPRO will not be liable to you, your Authorised Users, Paired Users or any third party for:

(a) any Claims or Losses (including Consequential Loss); or

(b) loss of, or damage to, any property or any personal injury, illness or death to you, any third person,

arising out of, relating or connected to, the provision or use of the CDMpal App and Services (including any Content, User Data and/or Third Party Products and Services generated or made available through the CDMpal App or the Services) by you (or your Authorised Users and/or Paired Users) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

13.2 All risk in using the CDMpal App and the Services passes to you upon creating an Account, or otherwise using the CDMpal App and the Services (whichever is earlier). CDMPRO assume no responsibility and CDMPRO have no liability to you, your Authorised Uses, Paired Users or anyone else for any use of, or reliance on, any Content, User Data and/or Third Party Products and Services obtained or generated from your (and your Authorised Users’ and/or Paired Users) access to, and use of, the CDMpal App and the Services.

13.3 To the maximum extent permitted by Relevant Laws, under no circumstances will CDMPRO’s aggregate liability to you, your Authorised Users or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the amount you paid to CDMPRO under this agreement in the one month immediately preceding the date on which the Claim giving rise to such liability arose.

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

(a) your (and your Authorised Users’) access to, and use of, or reliance on the CDMpal App or the Services (including the Content, User Data and Third Party Products and Services);

(b) negligent, willful or wrongful act or omission, committed by you or your Authorised Users;

(c) any breach of CDMPRO’s or any third party’s Intellectual Property Rights or other rights caused by you;

(d) any actual or alleged breach by you or your Authorised User of any Relevant Law; or

(e) any actual or alleged breach by you or your Authorised User of this agreement.

14. Privacy

14.1 All Personal Information and Sensitive Information you provide to open an Account and any User Data you upload, generate, share, or publish on, or via, the CDMpal App, is subject to CDMPRO’s Privacy Policy, which is incorporated into this agreement. CDMPRO will not share, sell or disclose your Personal Information and Sensitive Information to any third party. The only third parties that may access and view your User Data (including Personal Information and Sensitive Information) are those Authorised Users you link with, and/or those Paired Users who you connect with on, or via, the CDMpal App. You warrant that, in relation to any Personal Information and Sensitive Information comprising User Data or any other information disclosed to CDMPRO on, or via, the CDMpal App:

(a) it has been collected in accordance with Privacy Laws;

(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the CDMpal App; and

(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information and Sensitive Information in order for CDMPRO to use, disclose, store, transfer, process or handle it.

15. Termination

15.1 During the Subscription Term you may terminate this agreement at any time by selecting the ‘deactivate or cancel account’ function under the ‘personal information’ section in the dropdown side menu’ on the CDMpal App. In this case, you will not be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.

15.2 CDMPRO may terminate the agreement any time (without liability to you except CDMPRO may provide you with a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term) by giving you 14 days’ written notice.

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

(a) your Account; and/or

(b) the CDMpal App and/or Services;

(c) any social media pages linked to our business or the CDMpal App or any software platforms or tools linked to the CDMpal App; or

(d) any other products and services offered on, or via the CDMpal App (including Third Party Products and Services).

15.4 Cause for such suspension or termination under clause 15.3 may include, but are not limited to:

(a) any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy) and any other agreements entered into between the parties;

(b) serious or repeated breaches or violations of CDMPRO’s or a third party service providers’ Intellectual Property Rights;

(c) your failure to pay the Subscription Fees to access and use the CDMpal App and Services (except during the Trial Period) or your failure to pay the Pairing Fees;

(d) your activities, conduct or transactions on, or, via, the CDMpal App, brings, or has the capacity to bring, CDMPRO into disrepute; or

(e) requests by law enforcement or other government agencies.

15.5 If CDMPRO terminates the agreement in accordance with clauses 15.3 and 15.4, you acknowledge and agree that you are not entitled to pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.

15.6 You agree that all such suspensions or terminations shall be made at CDMPRO’s sole discretion and that CDMPRO shall not be liable to you or any third party for any such suspension or termination.

16. Effect of Termination

On termination of this agreement for any reason:  

(a) CDMPRO will deactivate your Account and your User Data will no longer be accessible by you through the CDMpal App. Your User Data will be retained for a period of 90 days from the effective date of termination, after which your User Data will be permanently deleted (except we may retain basic registration information in accordance with documentation retention and destruction laws). Before your User Data is permanently deleted from your Account, you may make a written request to us for delivery of the most recent back-up of User Data (in read only format) to you. CDMPRO shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You will pay all reasonable expenses incurred by CDMPRO in returning or disposing of User Data; and

(b) all licences to use the Services and rights of access to the CDMpal App granted under this agreement will immediately terminate.

17. Force Majeure Events

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

18. Dispute Resolution

18.1 Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.

18.2 The parties must in good faith attempt to resolve any dispute between them.  

18.3 If the dispute cannot by resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.  

18.4 Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.  

19. Updates and Variations

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

(a) change, add or delete the functions, features, performance, or other characteristics of the CDMpal App; or

(b) apply or install updates to, or new versions of, the CDMpal App.

19.2 You acknowledge that the Content and User Data on the CDMpal App is subject to change at any time and may be out of date at any given time. CDMPRO are under no obligation to:

(a) update, correct or fix any Content, User Data or errors in the CDMpal App; and/or

(b) notify you of any changes to the Content, User Data or the CDMpal App unless required by a Relevant Law to do so.

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

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

20. Support Services

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

20.2 If you require customer support services or you are having difficulties accessing and using the CDMpal App and the Services, you may contact us by email at admin@cdmpal.com.au.

21. Severability

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

22. Relationship

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

23. Assignment

Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign or transfer all or any of its rights or obligations under this agreement, except that CDMPRO may assign, sell or transfer our rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of CDMPRO’s business.

24. Entire Agreement

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

25. Jurisdication and Applicable Law

The laws of the State of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of Victoria, Australia.

26. Definitions

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

(a) Account has the meaning in clause 4.1(b). 

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

(c) Authorised User means another user of the CDMpal App (such as an immediate family member) who you have invited to link to your Account. By linking to your Account, the Authorised User may view, edit and access your User Data.

(d) Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria.

(e) Business Hours means 9:00am to 5:00pm local time on Business Days.

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

(g) CDMPRO IP has the meaning given to it by clause 9.1.

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

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

(j) Content means:

  • all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the CDMpal App; and
  • data patterns, insights, relationships and trends developed or created by the CDMpal App through data analysis and analytics and machine learning algorithms.

(k) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement: 

  • direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
  • loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data, economic or financial loss,  loss of opportunity or expectation loss (including loss of medical, wellbeing or healthcare opportunity) wasted medical or treatment cost;
  • costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
  • loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

(l) CDMpal App means the software made available through the mobile application, and used by CDMPRO to provide you with Services, including the application and database software for the Services, the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property Rights contained therein, provided or otherwise made available by us on, or via, the CDMpal App.

(m) Customer has the meaning in clause 6.6.

(n) Force Majeure Event has the meaning in clause 17.

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

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

(q) MGTcare Account means the subscription or licence provided to a person or entity to access and use the MGTcare Platform or MGT Referral Portal

(r) MGT Referral Portal means a secure portal for accessing the MGTcare Platform for the purpose of care coordination in between care team members and patients.

(s) MGTcare Platform means the online software platform that is designed to streamline information and workflows between a Medical Provider and patient, including which provides users with integrated chronic disease management tools and solutions.

(t) Pairing Code has the meaning in clause 6.3(b).

(u) Pairing Fee means the fee payable by you to us to pair or connect your Account on the CDMpal App to the MGTcare Account of a Paired User.

(v) Paired User means a Medical Provider who has been authorised or invited by you to view and access certain User Data on demand.

(w) Password has the meaning in clause 4.1(b).

(x) Personnel means any director, officer, employee, contractor or agents, of a party (in your case, includes any person acting for or on your behalf). 

(y) Medical Provider means a medical practice, medical clinic, medical practitioner, medical professional or allied health professional.

(z) Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not.

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

(ab) Privacy Policy means our privacy policy available on the CDMpal App or Website or such other web address notified by us to you from time to time, which is incorporated into this agreement.

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

(ad) Sensitive Information has the same meaning that it has under Privacy Laws, namely information or opinions about your health, political affiliations, sexual preferences, religious beliefs, racial or ethnic origin, criminal history or other such private information.

(ae) Services has the meaning in clause 2.1.

(af) Subscription Fees means the fees payable by you to access and use the CDMpal App and Services (including Third Party Products and Services) for the Subscription Term as further described on the CDMpal App, Apple store and/or Google Play store.

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

(ah) Third Party Products and Services means any software, products, services, content or data (including all Intellectual Property Rights contained therein) that:

  • are provided by third party providers (such as the MGTcare Platform);
  • interoperate with the CDMpal App or Services; or
  • may be identified as third party products or services.  

(ai) Third Party Payment Processor has the meaning in clause 8.6.

(aj) Trial Period means three consecutive days from the date you register and setup your Account.

(ak) User Data means has the meaning in clause 2(a) and includes all data, information, content and materials:

  • uploaded to, or stored on, the CDMpal App by you or your Authorised Users;
  • transmitted by the CDMpal App at your (or your Authorised Users’) instigation;  
  • supplied by you or your Authorised Users to CDMPRO for uploading to, transmission by, or storage on, the CDMpal App; or
  • generated by the CDMpal App as a result of the use of the Services by you or your Authorised Users,

but excluding CDMPRO IP.

(al) User Name has the meaning in clause 4.1(b).

(am) User Access Portal means the portal provided to you to access and use the CDMpal App and the Services.

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

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