Terms and Conditions of Use
This is a binding agreement between Check- Mate Applications Pty Ltd ABN 91 604 391 826 (Check-Mate) and you (you or Licensee).
1.1 Subject to the establishment and
maintenance of a current account and payment of any applicable fees, Check- Mate grants to the Licensee a non- exclusive, non-transferable limited licence to use the Software, on the terms and conditions set out in this agreement.
1.2 The Licence applies to any updates, new
releases or other enhancements to or improvements of the Software that Check-Mate may, at its absolute discretion, make available to the Licensee from time to time.
1.3 The Licensee may not, and may not
permit any other person or entity to do any of the following, anywhere in the world:
(a) market, distribute, resell, rent or
sublicense all or any part of the Software;
(b) edit, decompile, alter, translate,
adapt, merge, translate, reverse engineer, disassemble, decompile, modify, change the whole or part of the Software or create derivative works based on, any part of the Software or any Content, except as permitted by law;
(c) copy or reproduce the Software
except as permitted by law or this agreement;
(d) permit the whole or any part of
the Software to be combined with or become incorporated into any other software;
(e) attempt to remove or circumvent
any technological protection; measures contained in the Software;
(f) vary, delete, remove or obscure any notices of proprietary rights
or restrictions appearing on or in any part of the Software;
(g) access or use the Software in
any way that is fraudulent, malicious or contrary to any Australian or international law or (in the reasonable opinion of Check-Mate) is in breach or is likely to be in breach of the terms of this agreement; or
(h) access or use the Software in
any way that may reduce or diminish the reputation or image of Check-Mate.
2 Additional Restrictions and
2.1 It is the Licensee's responsibility to
ensure that all information provided by the Licensee to Check-Mate via the Software is accurate, current, adequate, legal, complete, reliable and appropriate.
2.2 Check-Mate bears no liability or
responsibility in relation to any reports or data generated by the Software to the extent it is based on or derived from information which is not accurate, current, adequate, legal, complete, reliable and appropriate.
3.1 The Licensee acknowledges and agrees
(a) the Software is provided on an
"as is" basis;
(b) access to the Software may not
always be available;
(c) the Software relies on the data
provided by the Licensee to Check-Mate being accurate, current, adequate, legal, complete, reliable and appropriate;
(d) the information and reports
generated by the Software is for general information purposes only and should not be regarded as advice (legal or medical). You must make and rely on your own assessment and enquiries to verify the accuracy and appropriateness of such information;
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(e) there is no guarantee or
representation that the Software does not contain viruses, worms or other files or programs that are designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
(f) data, files or other information
you download or otherwise access using the Software may be corrupted or lost; and
(g) Check-Mate is not responsible
for saving or backing up any data.
4.1 The Licensee is solely responsible for
procedures and controls for logins and passwords relevant to accessing the Software. The Licensee must ensure that it does not disclose any passwords or logins to any persons who are not authorised to use the Licensee's the Software account.
4.2 The Licensee must immediately notify
Check-Mate of any known or suspected loss of, unauthorised access to, or misuse of, the Software.
5 Intellectual Property Rights
5.1 Check-Mate holds the right to grant the licence to the Licensee on the terms of this agreement. The rights granted by Check-Mate to the Licensee are a licence in the terms described in clause 1. Nothing in this agreement or otherwise grants to the Licensee any rights of ownership in all or any part of the Software. All rights not expressly granted to the Licensee are reserved.
5.2 Check-Mate does not warrant or
represent that the use of the Software will not infringe the Intellectual Property Rights of any third party.
5.3 You must not use, or apply to register,
as part of any trade mark, domain name, company name or business name, anywhere in the world:
(a) MATECHECK (word); or
(b) any other trade mark, logo or domain name used in connection with the Software, or
any other products or services provided by Check-Mate; or
(c) any trade mark, logo or domain
name that is substantially identical or deceptively similar to those referred to in clauses 5.3(a) and (b).
6 Limitation of Liability
6.1 To the maximum extent permitted at law,
Check-Mate excludes all guarantees, conditions, warranties and representations granted by statute or general law in relation to the Software, the Content and any goods or services provided by Check-Mate including in relation to:
(a) availability of access to the
Software or any related goods or services;
(b) suitability of the Software or any
related goods or services for any purpose;
(c) data, reports or other information
generated by the Software;
(d) integrity, value and quality of the Software or any related goods or services; and
6.2 Subject to clause 6.6, Check-Mate does not accept liability for any loss or damage however caused (including due to negligence, and even if that liability for any loss or damage was reasonably foreseeable and Check-Mate had been notified of the possibility of that loss or damage arising) in connection with any information, data, reports, goods or services provided by Check-Mate, the Content, or the use of or access to the Software by you or any of your authorised users, including without limitation as a result of:
(a) the Software or any related
goods or services not being accessible;
(b) access to the Software or any
related goods or services not being continuous, uninterrupted or fault free;
(c) any Content being corrupted or
being accurate or complete;
(d) viruses, worms or other software
agents or files or programs that are designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment being obtained due to access to the Software;
(e) the Content lacking integrity;
(f) the Content breaching any laws or regulatory requirements; and
(g) the Content infringing any third
party rights (including Intellectual Property Rights and moral rights).
6.3 Subject to clause 6.6, Check-Mate is not
liable to you in connection with the Software, this agreement or any Check- Mate goods or services for any loss or damage however caused (including due to negligence) that constitutes consequential loss, indirect, special or direct loss, punitive or incidental damages, loss of profits, loss of revenue, loss of savings, deletion or corruption of electronically stored information, loss of reputation, loss of bargain, loss of data or loss of opportunity.
6.4 If any applicable law prohibits the
exclusion of liability by Check-Mate in the manner contemplated by this clause 6 with respect to particular loss or damage, then:
(a) the exclusion does not apply to
that loss or damage; and
(b) Check-Mate's liability is only
limited or excluded with respect to that loss or damage in the manner permitted by that law (if any).
6.5 Subject to clause 6.6 and clause 7,
Check-Mate's maximum cumulative liability to you in connection with this agreement, Check-Mate's goods and services and the Software is AUD$100.
6.6 Nothing in these terms and conditions
excludes or limits any rights of the Licensee that cannot be excluded or limited under the Australian Consumer Law.
6.7 You must indemnify Check-Mate and its
officers and employees in respect of all loss, damages and expenses (including legal expenses on a solicitor and own client basis), and all claims and demands made by any third party, arising out of any of the following:
(a) breach of the requirements in
this agreement by you; or
(b) any negligent, wilful or fraudulent
conduct by you.
7 Requirements of law
(a) Subject to clause 7(b) and 7(c),
where legislation (including the Australian Consumer Law) implies in this agreement any guarantee, condition or warranty, and that legislation voids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under such a guarantee, condition or warranty, that guarantee, condition or warranty will be deemed to be included in this agreement.
(b) Check-Mate’s liability for any
breach of a guarantee, condition or warranty included in this agreement as contemplated by clause 7(a) will be limited, where the relevant legislation permits such limitation, to the Check- Mate’s choice of:
(i) as regards goods, to replacing the goods , supplying equivalent goods, repairing goods, or paying the cost of replacing or repairing the goods or acquiring equivalent goods; or
(ii) as regards services, to the
re-supply of the relevant services or the cost of having the relevant services supplied again. (c) If any applicable legislation
prohibits the exclusion or limitation of liability by a party in the manner contemplated by this clause 7 with respect to particular loss or damage, then the exclusion or limitation applies to that loss or damage only in the manner, and to the maximum extent, permitted under that legislation (if any).
8.1 If requested by Check-Mate in order to check compliance with this agreement by the Licensee, the Licensee must, subject to reasonable advance notice, provide Check-Mate (and its authorised representatives) with such access as Check-Mate requires from time to time to the Licensee's devices, premises, facilities, records, equipment and information technology systems.
9 Suspension and Termination
9.1 The Licensee acknowledges and agrees
that Check-Mate may immediately terminate the Licence, and/or suspend the Licensee's access to the Software, if the Licensee is in breach of any term of this agreement.
9.2 Check-Mate reserves the right to
suspend the Licensee's access to the Software at any time, without prior notice and without providing any reasons, including without limitation in the following circumstances:
(a) for maintenance purposes;
(b) to prevent an actual or
suspected security attack on the Software;
(c) upon the occurrence of a Force
(d) to protect any Intellectual
Property Rights subsisting with respect to the Software; and
(e) with a view to preventing or
minimising harm or damage to any person or property or to protecting the rights, safety or privacy of any person.
9.3 Upon termination of the Licence for any
(a) the Licence will immediately
(b) the Licensee must immediately
cease to use any part of the Software; and
(c) the Licensee will continue to be
bound by the provisions of clauses 5, 6, 7, 8, 9.3, 11 and 12 of this agreement.
Check-Mate may subcontract all or any part of any of its services, or the performance of any of its obligations under this agreement, without your consent.
(a) Check-Mate may use and
(a) You agree that for the purposes
of these terms and conditions we may contact you, and provide notices, directions and information to you, by e-mail sent to the e-mail address you provided when registering. You agree that any communications provided to you by e-mail will comply with any legal requirement that such communication be in writing. E- mail will be deemed to have been delivered upon sending from Check-Mate' computer network unless Check-Mate receives a notice of non-delivery.
(b) All notices by you to Check-Mate
under this agreement must be delivered or posted by pre-paid post (airmail if outside of Australia) to:
Check-Mate Applications Pty Ltd PO Box 10720 Adelaide Street Brisbane QLD 4000 AUSTRALIA
with a copy by email to: firstname.lastname@example.org
The notice will be deemed delivered three (3) Business Days after the date of posting within Australia, or ten (10) Business Days after the date of
posting if sent via pre-paid airmail from outside of Australia.
(a) You may not transfer or assign
any of your rights under the Licence or otherwise under this agreement without the consent of Check-Mate.
(b) Check-Mate may assign the
benefit of this agreement without your consent. If requested, you will enter into a deed of novation of this agreement with a third party nominated by Check-Mate.
12.3 Further assurances
You must do all things necessary or desirable to give effect to the provisions of these terms and conditions including by signing all documents and performing all acts.
To the extent that any portion of these terms and conditions is void or is otherwise unenforceable in any jurisdiction then that portion will be severed in that jurisdiction and in that jurisdiction these terms and conditions will be construed as if the severable portion had never existed.
12.5 No agency
This agreement does not create a relationship of employment, trust, joint venture, agency or partnership between you and Check-Mate. Neither this agreement, nor the supply of any goods or services by Check-Mate, creates any fiduciary obligations on the part of Check-Mate.
Unless otherwise expressly contemplated, where a provision of this agreement contemplates that Check- Mate may exercise a discretion, then Check-Mate is entitled to exercise that discretion absolutely, with or without conditions and without being required to give reasons.
(a) Any right provided to Check- Mate under these terms and conditions may only be waived in
writing, and any waiver is effective only to the extent specifically set out in the waiver.
(b) A waiver by Check-Mate of any default will not constitute a waiver of any subsequent default.
You acknowledge and agree that we may amend these terms and conditions in our discretion by notifying you of new terms and conditions from time to time, or by publishing the new terms and conditions on the Software login interface. If you continue to use the Software after that time, you will be deemed to have accepted the new terms and conditions.
12.9 Governing law and jurisdiction
The laws of Queensland, Australia apply to these terms and conditions. You irrevocably submit to the exclusive jurisdiction of the courts of Queensland, Australia and the courts competent to hear appeals from those courts.
(a) The parties must attempt to resolve any dispute or difference which may arise between them in relation to this agreement or any goods or services supplied by Check-Mate in accordance with this clause.
(b) Any dispute arising between the parties may be referred in writing in the first instance to the other party, and the parties must then endeavour to identify a solution. resolved within 60 days of first being referred in writing to the other party then any party may refer the dispute to mediation and subject to clause 12.10(g) must do so before initiating proceedings in a court to resolve the dispute.
(d) A dispute which is referred to mediation must be referred to IAMA and be conducted in accordance with the mediation rules as determined by IAMA by a mediator nominated by the
(c) If the dispute has not been parties or, if the parties cannot reach agreement, by IAMA.
(e) If the dispute has not been resolved within 30 days of referral to IAMA or a longer period agreed between the parties, any party is free to initiate proceedings in a court.
(f) Each party must bear its own costs, and equally share the costs incurred through mediation, associated with the resolution of any dispute prior to the matter being initiated as a court proceeding.
(g) Nothing in this clause will prevent a party from seeking urgent interlocutory relief through courts of appropriate jurisdiction.
To the extent that any portion of this agreement is void or otherwise unenforceable then that portion will be severed and this agreement will be construed as if the severable portion had never existed.
13 Definitions and Interpretation
In this agreement:
Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of theCompetition and Consumer Act 2010 (Cth);
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland, Australia.
Content includes all data, graphics, text and software forming part of, or retained, maintained or displayed, in any part of the Software;
Force Majeure Event means any occurrence or omission outside of the Check-Mate's reasonable control and includes without limitation natural disasters, civil unrest, war, strikes, industrial disputes, labour disputes and shortages, inability to obtain or access equipment, facilities, services, power or other utilities, accidents, and any change in law or regulatory requirement;
Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered or unregistered, including without limitation copyright, future copyright, patents, designs, trade marks, domain names, business names, company names, service marks, circuit layout rights, data and database rights, know how, trade secrets and all applications and rights in relation to registration of such rights, whether created before, on or after the date of this agreement;
Licence means the licence granted by Check-Mate in clause 1.1 of these terms and conditions; and
Software means the software application known as 'MateCheck' as made available to the Licensee by Check-Mate from time to time via smart devices, the internet or alternatives.
In these terms and conditions:
(a) no rule of construction applies to the disadvantage of Check-Mate on the basis that it prepared these terms and conditions; and
(b) words such as "includes" and "including" do not impose any limitation on the construction of general language that is followed by specific examples.
Last updated: 3/8/2019 2:27:19 AM
We operate the MateCheck application and the website at www.matecheck.com.au. We also supply related products and services.
What is personal information?
Under the Privacy Act 1988 (Cth) personal information is defined to mean 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 whether the information or opinion is recorded in a material form or not.
Personal information can include sensitive information. Sensitive information is defined as information or an opinion about a person's race, ethnic origin, political opinions, memberships of political associations and trade associations, religious or philosophical beliefs, sexual orientation or practices, criminal record, health information, genetic information about an individual that is not otherwise health information, biometric information that is used for the purpose of automated biometric verification or biometric identification and biometric templates.
Personal information that we collect and hold
We collect, hold and use personal information in order to provide, improve and personalise our products and services. We may also use your personal information for statistical analysies and research purposes, to enable tracking of health and well-being trends and to track participation rates in relation to our products and services.
The types of personal information that we can collect and hold may include your name, email address, telephone number, physical address and any other information may be provided to us (including health information).
We may collect personal information about you from a variety of sources, including when you:
• register as a user of, or use, a particular part of one of our applications or our website;
• voluntarily provide us with information (for example using our applications, via email, text, telephone or face to face); and
• subscribe for our products or services (for example via our website).
We may also receive personal information about you from other sources (including your employer, other third parties including health service providers and publicly available social network information).
If you visit our website, we may also collect non-identifying information from you including data relating to your usage of our website via tracking technologies such as cookies and traffic measurement software.
Disclosure of your personal information
We may provide your personal information to trusted third parties who assist us in operating our applications or website, conducting our business or providing our products and services to you. We require these parties to agree to keep your personal information confidential and to act in accordance with the Australian Privacy Principles.
We may disclose information to your employer through whom you have obtained access to our services in the form of a summary statistical report that does not personally identify you.
We may also disclose your personal information when we believe that disclosure is required to comply with the law or to protect the rights, privacy, safety or property of us, our affiliates, you and/or others.
We may also disclose your personal information in the circumstances permitted under the Australian Privacy Principles or any other applicable law.
We may from time to time use your personal information such as your address or contact details to contact you to tell you about products or services we believe may be of interest to you.
If we do, each communication we send you will contain instructions permitting you to “opt-out” of receiving future communications. If at any time you do not wish to receive any future communications or you wish to have your details deleted from our mailing lists, please contact us at the address below.
We will never use or disclose any sensitive information for marketing purposes.
Links to other websites
We endeavour to ensure that all personal information that we hold is accurate, complete and up-to- date. To assist us with this, individuals should contact us if any of their personal information changes, or if they believe that the personal information that we hold is not accurate or complete.
When personal information that we collect is no longer required by us, we will destroy or de-identify that personal information unless we are required by law or a court/tribunal to retain the personal information.
We may retain your personal information for so long as it is required for any of our business purposes, for insurance and governance purposes and in our IT back-up.
Unfortunately, the transmission of information via the internet is not completely secure. We cannot guarantee the security of your data transmitted to or through our website. Any transmission is at your own risk. Once we have received your information, we will take reasonable steps to protect personal information we collect from you from misuse, loss or unauthorised access, modification or disclosure, however you acknowledge that no system is completely secure against cyber attack.
You should contact us immediately if you believe that there has been unauthorised access or disclosure with respect to any personal information that we hold about you.
We are currently unlikely to disclose your personal information overseas, however if we do so, it will be in accordance with the Australian Privacy Principles.
We may in the future disclose your personal information on servers located outside of Australia. You consent to any disclosure of your personal information overseas on the understanding that if the overseas recipient handles the personal information in breach of the Australian Privacy Principles, the entity will not be accountable under the Privacy Act 1988 (Cth), and you will not be able to seek redress under the Privacy Act 1988 (Cth). The overseas recipient may not be subject to privacy obligations or any principles similar to the Australian Privacy Principles. Individuals may not be able to seek redress in some overseas jurisdictions, and overseas recipients may be subject to a foreign law that could compel the disclosure of personal information to a third party, such as an overseas authority.
You consent to us using and disclosing your de-identified data (information that no longer identifies you) for any purpose, including without limitation research, statistical analysis, product or service development, marketing and business planning and any other commercial purpose. We undertake technical measures to make sure that this data cannot be associated back to you.
Government related identifiers
We do not use any government related identifiers, such as driver's licence or passport numbers, as our own internal identifier of any individual. We will not use or disclose any government related identifiers other than in accordance with the Privacy Act 1988 (Cth).
Access and correction
Individuals can also request access to their personal information held by us by sending a written request to our Privacy Officer.
Before providing access to personal information, or correcting or updating personal information, we will require your identity to be confirmed.
We will attempt to respond to your request within 14 days of receiving it.
Requests for access or correction may be refused upon the grounds contained in the Privacy Act 1988 (Cth). If we refuse to provide access, or to correct or update personal information, we will provide you with reasons for the refusal. If we refuse to correct your personal information you have the right to associate with your information a statement that the information is inaccurate, out-of-date, incomplete, irrelevant or misleading. We will take such steps as are reasonable in the circumstances to associate that statement with all records we hold that contain the relevant information.
Privacy related complaints should be directed to our Privacy Officer at the address below. We will do our best to ensure that our investigation is completed, and a decision about your complaint is communicated to you, within 30 days of our being advised of the complaint. We will inform you if we need more time.
If you are not satisfied with the response you receive from us, you may contact the Office of the Australian Information Commissioner:
Telephone: 1300 363 992
Post: GPO Box 5218, Sydney NSW 2000
Our Privacy Officer
Our Privacy Officer's contact details are:
The Privacy Officer, Check-Mate Applications Pty Ltd, PO Box 10720, Adelaide Street, Brisbane QLD 4000 or email email@example.com.
This policy was last modified on 29 January 2019. Legal/66719406_1
Last updated:3/8/2019 2:27:45 AM