Terms of Use

 

These Terms of Use apply to users of the Services (as defined below) residing in Australia.

These Terms of Use govern your use of the DARWIN™ Home Wellness Intelligence network and the software, content, features, information and services it offers (collectively, the “Services”). Certain components, features or benefits of the Services may be subject to additional guidelines, terms or rules, which will be posted on or communicated via the Services. Any such additional guidelines, terms or rules and the Privacy Policy applicable to the Services (the “Services Privacy Policy”) are incorporated by reference into these Terms of Use and you are agreeing to accept and abide by them by using the Services. Please read these Terms of Use carefully before using the Services or any components, features or benefits thereof. These Terms of Use, when agreed to by you, will form a binding agreement between you and Delos Welltek Australia Pty Ltd.  (“Delos”, “we,” “us,” “our,” and other similar pronouns). The terms “you” and “your” and other similar pronouns mean any person or entity who accesses or uses the Services, including Owners and Authorized Users (as such terms are defined below), and the parents or guardians of Authorized Users.

 

1. Acceptance of Terms of Use.Your use of the Services indicates your acceptance of these Terms of Use. If you do not accept these Terms of Use, do not use the Services. From time to time these Terms of Use may be revised and will be included on or through the Services. Please review these Terms of Use from time to time. Your continued use of the Services will constitute your agreement to the most current version of these Terms of Use. If at any time you do not agree to these Terms of Use, do not use the Services.

2. Accounts and Eligibility

(a) To use the Services, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information that you submit is accurate, current and complete and you agree to update such information as necessary to ensure this remains the case; and (ii) you will use the Services in compliance with all applicable laws and regulations (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). If your use of the Services is prohibited by applicable laws, then you are not authorized to use the Services.

(b) To help protect the security of the Services and your information, you should follow security best practices such as protecting your user name and password. You are responsible for maintaining the confidentiality of your user name and password, and you are responsible for all uses of your Account and registration, whether or not authorized by you. Do not share your user name or password with any other person. In the event you become aware of misuse or unauthorized use of your user name, password or Account, it is your obligation to notify Delos. Delos shall have no responsibility for loss or misused user names or passwords or for unauthorized access to your Account. Delos is not liable for any loss or damage arising from your failure to comply with the above requirements.

(c) The individual who creates an Account is the “Owner” of that Account and individuals who are authorized to access an Owner’s Account and use the Services are “Authorized Users”. Authorized Users may have the ability to use, monitor and/or control the Services. Authorized Users also may have the ability to view information (including personal information) and content available through the Owner’s Account. Authorized Users are responsible for their own actions in connection with their use of the Services, but the Owner remains fully responsible for all such actions. If you are an Owner who invites or enables an Authorized User to access your Account and/or use the Services, you acknowledge and agree that any such Authorized User may subsequently invite or enable other additional Authorized Users with the same ability to access your Account and/or use the Services. As a result, if you are an Owner, you should only authorize those individuals whom you trust to access your Account and use the Services.

(d) You may use the Services only if you accept these Terms of Use through the Services’ website, mobile application or other permissible means, or by accessing or using the Services, and only if you are in compliance with these Terms of Use and all applicable national, state, provincial, local and international laws, rules and regulations. Only individuals aged 18 and older are permitted to act as Owners of Accounts. If you are an Authorized User, you represent and warrant that you are over the age of 13 (or equivalent minimum age in the jurisdiction where you reside), and in the event you are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside) and the age of majority in the jurisdiction where you reside, you will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use on your behalf. Any use or access to the Services by individuals under the age of 13 (or the equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms of Use.

 

3. License; Intellectual Property Rights; Modifications and Updates

(a) Delos grants you a revocable, non-exclusive, non-transferable, limited license to download, install and use the Services solely for your personal, non-commercial purposes strictly in accordance with these Terms of Use.

(b) All text, graphics, design and programming in connection with the Services (“Content”) are the sole property of Delos or their respective owners and are protected by copyright law, trademark law and international treaties. Delos authorizes you to view a single copy of the Content solely for your personal, noncommercial use. You may not reproduce, modify, display, sell, or distribute the Content, or use it in any other way for public or commercial purpose.

(c) The “look” and “feel” of the Services (including colour combinations, layout, design and all other graphical elements) are also protected by copyright law, trademark law and international treaties. All product names, names of services, trademarks and service marks in connection with the Services (the “Marks”) are the property of Delos or the property of their respective owners. You may not use the Marks for any purpose whatsoever other than as permitted by these Terms of Use. Nothing contained in these Terms of Use is intended to confer upon or assign to you any right, claim, title or interest in or to any Delos’ intellectual property or proprietary rights.

(d) Delos may, from time to time, in its sole discretion, develop patches, bug fixes, updates, upgrades, improvements and modifications to the Services (“Updates”). By using the Services, you consent to receiving Updates. If you do not wish to receive Updates, your sole remedy is to terminate your Account and stop using the Services. If you do not terminate your Account, you will receive Updates automatically with or without notice. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any such required Updates.

(e) Delos reserves the right, at any time, in its sole discretion, to modify, suspend or discontinue the Services (in whole or in part) with or without notice. You agree that Delos will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.

(f) Subject to any subscription agreement or other restrictions, Delos reserves the right to charge or modify fees associated with the Services or certain components, features, or benefits relating thereto, provided that we will notify you in advance, and your continued use of the Services after such notice constitutes your acceptance thereof. If you do not wish to continue using the Services following such notification, you may terminate your Account and stop using the Services.

 

4. Acceptable Use of the Services.

The Services and all components, features and benefits thereof may be used only for lawful purposes in accordance with these Terms of Use. By way of example and not as a limitation, you shall not and shall not permit any third party to use the Services or interact with the Services in any manner, including uploading, downloading, posting, submitting or otherwise distributing or facilitating distribution of any content on or through the Services, that:

  • infringes any intellectual property or other proprietary right of any other person or entity or violates any law or contractual duty;
  • you know is false, misleading, untruthful or inaccurate;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious or obscene;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
  • involves commercial activities (whether or not for profit) and/or sales without Delos’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
  • violates the security of any computer network, or cracks any passwords or security encryption codes;
  • decompiles, reverse engineers, or otherwise attempts to obtain the source code of the Services;
  • violates the Services Privacy Policy or any other policies;
  • interferes with the proper operation of the Services, including, but not limited to, by attacking, hacking into, or otherwise attempting to penetrate any non-publicly accessible elements of the Services, through the use of bots, trojan horses, viruses, DNS attacks, or other technology which is designed or intended to interfere with the proper operation of the Services or the use of the Services by others.
  • alters or modifies the Content or removes any copyright notices or other legends.
  • “crawls” or “spiders” any page or portion of the Services (through use of manual or automated means); harvests or scrapes any Content from the Services; or
  • interferes with service to any user of the Services, host or network, including without limitation, via means of submitting malware to the Services.

5. Terminating or Suspending Access to Use the Services. Delos reserves the right to terminate (or suspend access to) your use of the Services or your Account if you violate these Terms of Use. Delos has the sole right to decide whether you are in violation of these Terms of Use.

6. Monitoring of and Rights to Information.Delos does not assume any obligation to review the accuracy, completeness, truthfulness or content of any information submitted via the Services. We may use information and content submitted by you or collected by or through your use of the Services in our business, as further described in the Services Privacy Policy. You hereby grant to Delos a non-exclusive, irrevocable, perpetual, worldwide, fully paid, royalty-free, sublicensable and transferable right and license to use, copy, edit, modify, reproduce, distribute, prepare derivative works of, publicly display, publicly perform, and otherwise fully exploit non-identifying information and content submitted by you or collected by or through your use of the Services (including information and content provided from Products and Apps connected to the Services) in connection with the provision of the Services and otherwise in Delos’ (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds). For clarity, the foregoing license grant to Delos does not affect your other ownership or license rights in your information, including the right to grant additional licenses to your information, unless otherwise agreed in writing with Delos.

7. Services Limitations and Requirements; Disclaimer of Warranties, Indemnification and Limitations of Liability.Your agreement to the following disclaimers and limitations are a material inducement to Delos permitting you to access and use the Services. Your access and use of the Services, and the obligations and liabilities of Delos in respect thereof, is expressly limited as follows:

(a) Reliability and Availability. While Delos aims for the Services to be highly reliable and available, it is not error-free or reliable or available 100% of the time. Delos does not offer any specific uptime guarantee for the Services. The Services are subject to sporadic interruptions and failures for a variety of reasons, including for security reasons, systems failure, maintenance and repair, Wi-Fi intermittency, Internet service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Delos is not responsible for any refunds or damages allegedly caused by the interruption, failure or delay of the Services. In addition, you acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. Delos cannot and does not guarantee that you will receive notifications of interruptions in the Services in any given time or at all. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home wiring, home Wi-Fi network and other related equipment, (ii) your Internet service provider (“ISP”) and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use or service, and other policies of your ISP and Carrier.

(b) System Requirements. Certain features and functionality of the Services may not be accessible without: (i) an Account; (ii) an enabled and supported wireless device, such as a supported phone or tablet (required for some features and functionality of the Services); (iii) a working Wi-Fi network in your home that is positioned to communicate reliably with the Services; (iv) always-on broadband Internet access in your home with bandwidth sufficient to support the Services; and (v) other system elements that may be specified in writing by Delos. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Services. You must follow any and all instructions and operating documents in these Terms of Use and in any other documentation or information provided to you by Delos in order to use the Services.

(c) Conduct of Users. Delos assumes no responsibility for the activities or conduct of any Owners or Authorized Users.

(d) Third Party Information or Services. The Services may contain links or connections to hardware devices and products (e.g., sensors, lighting, etc.) (collectively, “Products”), applications and software (collectively, “Apps”), websites and/or services that are not owned or controlled by Delos. When you access third party Apps, Products or websites or use third party services, you accept that there are risks in doing so, and that Delos is not responsible for such risks. We encourage you to be aware when you use any third party Apps, Products, websites or services or when you leave the Services, and to read the terms and conditions and privacy policy of each third party App, Product, website or service that you visit or utilize.  

Delos has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party website or by any third party that you interact with through the Services. In particular, when you use an App or Product provided by a third party or connect a third party website or service to the Services, that third party may place additional terms and conditions (including a privacy policy) on your use of that App or Product or any associated websites or services, and you agree that you will comply with all such terms and conditions. We are not responsible for (and do not endorse) any third party terms and conditions, or any third party App, Product, website or service. In addition, Delos will not and cannot monitor, verify, censor or edit the content of any third party App, Product, website or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party App, Product, website or service.

Your interactions with third party organizations and/or individuals found on or through the Services, including payment and delivery of goods or services under any transaction you enter into with a third party, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Delos shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

(e) DISCLAIMER OF WARRANTIES. THE SERVICES (AND ALL PRODUCTS, SOFTWARE, SERVICES, INFORMATION AND CONTENT) MADE AVAILABLE ON OR PROVIDED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND. DELOS DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER AS TO THE SERVICES AND CONTENT MADE AVAILABLE ON OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, LOSS OF DATA, FITNESS FOR PARTICULAR PURPOSE, AVAILABILITY, SECURITY, ACCURACY, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

DELOS’ ACTIVITIES AND SERVICES ARE INTENDED TO HELP SUPPORT YOUR HEALTH AND WELL-BEING. HOWEVER, PLEASE BE AWARE THAT AN INDIVIDUAL’S HEALTH AND WELL-BEING ARE DETERMINED BY A NUMBER OF FACTORS PARTICULAR TO THAT INDIVIDUAL, OTHER THAN THAT INDIVIDUAL’S CURRENT ENVIRONMENT. THESE FACTORS INCLUDE BUT ARE NOT LIMITED TO, PERSONAL CURRENT AND PAST CONDUCT, GENETICS, FAMILY HISTORY AND PSYCHOLOGICAL FACTORS. DELOS IS NOT A LICENSED HEALTHCARE PROVIDER, AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES OR ANY PRODUCT, APP OR WEBSITE CONNECTED TO THE SERVICES WILL CURE ANY ILLNESSES OR DISEASES, IMPROVE THE OVERALL HEALTH OR WELL-BEING OF ANY SPECIFIC INDIVIDUAL(S), OR CAUSE A SPACE TO BE FREE FROM BACTERIA, VIRUSES, ALLERGENS, VOLATILE ORGANIC COMPOUNDS, OR OTHER PATHOGENS. MOREOVER, DELOS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES OR ANY PRODUCT, APP OR WEBSITE CONNECTED TO THE SERVICES ARE EXHAUSTIVE OF ALL AVAILABLE ALTERNATIVES. DELOS AND/OR ITS AFFILIATES MAY INVEST IN OR MAINTAIN DISTRIBUTION, REFERRAL AND/OR OTHER CONTRACTUAL ARRANGEMENTS WITH THIRD PARTY PROVIDERS OF CERTAIN OF THE PRODUCTS THAT IT MAY RECOMMEND TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES, YOU ACKNOWLEDGE THAT DELOS MAY BENEFIT COMMERCIALLY FROM YOUR PURCHASE OF SUCH PRODUCTS. NEITHER THE SERVICES, ANY PRODUCT, APP OR WEBSITE CONNECTED TO THE SERVICES NOR THE INFORMATION DISPLAYED ON OR PROVIDED THROUGH THE SERVICES CONSTITUTE THE PRACTICE OF MEDICINE OR THE PROVISION OF ANY PROFESSIONAL HEALTHCARE SERVICES, DIAGNOSIS OR TREATMENT, AND NOTHING DISPLAYED ON OR PROVIDED THROUGH THE SERVICES OR ANY PRODUCT, APP OR WEBSITE CONNECTED TO THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT.  

FURTHERMORE, DELOS MAKES NO WARRANTIES THAT THE SERVICES OR PRODUCTS CONNECTED TO THE SERVICES WILL NOT AFFECT PEOPLE WITH ALLERGIES OR PROPENSITIES FOR OTHER ADVERSE REACTIONS, AND DELOS ASSUMES NO LIABILITY FOR ALLERGIC OR OTHER ADVERSE REACTIONS TO THE SERVICES OR PRODUCTS CONNECTED TO THE SERVICES.

(f) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL DELOS OR ANY OF ITS AFFILIATES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF GOODWILL, PERSONAL OR PROPERTY DAMAGE), WHETHER OR NOT DELOS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) THE FEES ACTUALLY PAID BY YOU TO DELOS FOR THE SERVICES AT ISSUE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM OR (B) ONE HUNDRED U.S. DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

 (g) Risk of Loss; Insurance. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK, AND THAT YOU ACCEPT RESPONSIBILITY FOR ALL LOSSES, DAMAGES AND EXPENSES ARISING OUT OF SUCH USE. DELOS IS NOT AN INSURER. YOU ARE RESPONSIBLE FOR MAINTAINING INSURANCE COVERING ALL LOSS, DAMAGE OR EXPENSE, WHETHER FOR PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR FROM (I) THESE TERMS OF USE OR (II) THE SERVICES.

(h) Indemnification. You agree to indemnify, defend and hold harmless Delos and its affiliates and their respective employees, officers, directors, agents, employees and investors (collectively, the “Indemnified Parties”) harmless from and against any and all liabilities, claims, causes of actions, damages, losses, costs and expenses, including but not limited to, attorneys’ fees and costs of suit, arising out of or relating to: (i) your use of the Services (including any actions taken by a third party using your Account); (ii) your violation of these Terms of Use; or (iii) your violation of any law or the rights of any third party. Delos reserves the right, at your expense, to assume the exclusive control of the defense and settlement of any claim for which you are required to indemnify any of the Indemnified Parties hereunder and you agree to fully cooperate with our defense and settlement of such claim. You agree not to settle any such claim without Delos’ prior written consent. Delos will use reasonable efforts to notify you of any such claim upon becoming aware of it.

 

8. General. These Terms of Use are governed by the internal substantive laws of Victoria, Australia, without respect to its conflict of laws principles. Jurisdiction for any claims arising under these Terms of Use shall lie exclusively with the courts located within Victoria, Australia. These Terms of Use constitute the entire agreement between you and Delos regarding the use of the Services. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. You and Delos agree that these Terms of Use are the complete and exclusive statement of the mutual understanding between you and Delos, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Use, and that all modifications to these Terms of Use must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and you do not have any authority of any kind to bind Delos in any respect whatsoever. If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. The failure of Delos to enforce any term or condition of these Terms of Use shall not be deemed a waiver thereof and shall not prevent its later enforcement. You may not assign, delegate or transfer these Terms of Use or your rights or obligations hereunder, or your Account, in any way (by operation of law or otherwise) without Delos’ prior written consent. We may transfer, assign or delegate these Terms of Use and our rights and obligations without consent. These Terms of Use are binding upon any permitted assignee.

 

9. Contact. Questions concerning the Services or any components, features or benefits thereof should be directed to [email protected]

 

Last Updated: June 21, 2019