VitalCall

Legal

Terms and Conditions — Retail

The agreement between VitalCALL and retail customers covering monitoring services, equipment, fees, cooling off, warranties and your rights under the Australian Consumer Law.

Last updated: May 2024

1. Services

1.1 Monitoring and response

In consideration of the Fees, VitalCALL shall monitor the Equipment for Alarm Signals through the Central Monitoring Facility and respond to Alarm Signals received at the Central Monitoring Facility in accordance with its procedures and applicable Australian Standards ("Services"). VitalCALL will use due care and skill to provide the Services.

1.2 Customer Acknowledgements

By entering into this Agreement, the Customer acknowledges and agrees that:

  1. The Customer has made sufficient enquiries on the Equipment and Services and understands the nature, purpose and limitations of the Equipment and the Services.
  2. The Customer has been provided, and has received the User Manual, and will use and operate the Equipment in accordance with the instructions in the User Manual and any directions from VitalCALL.
  3. VitalCALL does not monitor the continuous connection of the Customer's telephone line or telecommunications network to the Central Monitoring Facility. It is the Customer's responsibility to check and test the Equipment regularly to ensure Alarm Signals are being received and to notify VitalCALL of any issue.
  4. The performance of the Services depends upon and may be affected by equipment and telecommunication services provided by carriers and other third parties. VitalCALL is not liable for performance issues attributable to equipment or services not supplied by VitalCALL.
  5. The Customer is solely liable for the costs of all power, telephone, data allowance, data usage, connections and any other telecommunications equipment and services required for the performance of the Equipment and Services.
  6. The performance of the Services may be affected by environmental conditions such as weather, temperature, geographical location, humidity, dust, dirt, the location and layout of the Customer's premises, position of furniture, building materials, metallic objects or other electrical appliances; VitalCALL is not liable for any defect, fault or interruption caused by such environmental conditions.
  7. VitalCALL does not provide Services in regard to third party equipment and does not supply Equipment exclusive of Services.
  8. The Customer has provided, and will promptly update, VitalCALL with all relevant and accurate information regarding the Customer, the End User, the current address where the Equipment is located, the Nominee and all Emergency Contacts. VitalCALL is not liable for any loss or damage if the Customer has not informed VitalCALL of a change of residence and emergency services are called to an incorrect address.

1.3 Competition and Consumer Act 2010 (Cth)

Nothing in this Agreement is intended to exclude, restrict or modify the application of the provisions of any statute, including the Competition and Consumer Act 2010 (Cth). If the Customer is a Consumer:

  1. VitalCALL's goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
  2. The benefits given to the consumer by a guarantee under the Australian Consumer Law are in addition to other rights and remedies of the consumer.
  3. For major failures with the service, the Customer is entitled to cancel the Agreement and to a refund for the unused portion, or to compensation for its reduced value.
  4. The Customer is also entitled to choose a refund or replacement for a major failure with goods. If a failure does not amount to a major failure, the Customer is entitled to have it rectified in a reasonable time.

If a defect in Equipment or Service appears during the Warranty Period, the Consumer is entitled to submit a warranty claim to Chubb. Postage and packaging required to return Equipment to Chubb will be at the Consumer's cost. The Consumer must provide proof of purchase and an explanation of the defect. If Chubb elects to repair the Equipment, Equipment may be replaced by refurbished goods of the same type, refurbished parts may be used, and the repair may result in the loss of any user-generated data.

2. Customer's Obligations

2.1 Supply and ownership of Equipment

  1. If a retail Customer elects to purchase the Equipment, title and ownership pass to the Customer upon receipt by VitalCALL of payment in full. Risk passes to the Customer upon delivery.
  2. If a Customer elects to hire the Equipment, the Equipment at all times remains the exclusive property of VitalCALL, unless purchased.
  3. Additional accessories may be purchased on the same terms.

2.2 Equipment Functionality

The Customer must ensure the Equipment is:

  1. correctly installed and always effectively functioning;
  2. regularly and properly serviced and maintained; and
  3. tested on a regular (and at least monthly) basis.

2.3 Nominee – Retail Customers Only

  1. The Customer must appoint a Nominee to act as the Customer's agent, including if the Customer is unavailable, ill or incapacitated.
  2. VitalCALL may accept and act on the instructions of the Nominee for all matters relating to this Agreement as if the Nominee were the Customer.
  3. The Customer releases and indemnifies VitalCALL from any losses, liabilities or claims arising from VitalCALL acting on the Nominee's instructions. This clause survives termination.

2.4 End User Support

The Customer must train and support the End User to operate, test and maintain the Equipment.

2.5 Use of PERS Equipment – Retail Customers Only

(1) Delivery and Initial Installation. In consideration of the Installation Fee, VitalCALL will deliver and install the PERS Equipment at the retail Customer's residence and connect it to the Central Monitoring Facility. The Customer must not disconnect or move the PERS Equipment after the Initial Installation. If the Customer does, VitalCALL may charge a Fee to attend, reconnect, re-install or relocate the PERS Equipment.

(2) Relocation after Initial Installation. With VitalCALL's prior approval, the Customer is permitted to relocate the PERS Equipment for a change of residence or temporary relocation. In that case, the Customer must install the PERS Equipment at the new location strictly in accordance with the Setup Guide and contact VitalCALL to test the PERS Equipment to ensure functionality and connection to the Central Monitoring Facility.

(3) Self-Installation. Where VitalCALL has agreed the PERS Equipment may be self-installed, the Customer must install and test the PERS Equipment strictly in accordance with the Setup Guide and conduct a Testing Process with a VitalCALL Representative. The Customer must not move the PERS Equipment afterwards without first notifying VitalCALL and completing a further Testing Process.

VitalCALL does not guarantee the Services will work as intended if the PERS Equipment has not been installed and tested in accordance with the Setup Guide, or has been moved without VitalCALL being contacted.

2.6 Mobile Pendant

In consideration of the Installation Fee, VitalCALL will deliver the Mobile Pendant to the Customer's residence and connect it to the Central Monitoring Facility as outlined in the User Manual.

The Customer acknowledges that:

  • the Mobile Pendant uses GPS functionality to locate the Customer in a personal emergency;
  • GPS functionality may not always be available, accurate or uninterrupted in some locations and may not be error free; and
  • VitalCALL shall not be liable for any loss arising from any defect, limitation, error or malfunction in the telecommunications network.

2.7 Access and Use of SafeZone Application

  1. VitalCALL offers, on an opt-in basis, access to its "SafeZone" application, available from the Apple and Google stores. Full conditions are available prior to download.
  2. SafeZone is designed to provide for emergency response via GPS tracking on the Customer's mobile or desktop device, and includes help, medical, emergency alerts and automatic fall triggers. It may also be paired with Bluetooth devices.
  3. Fees and charges are applicable upon installation and sign up.
  4. Use of SafeZone is supported by the VitalCALL monitoring team.
  5. The Customer/End User acknowledges:
    • an event raised by SafeZone will not always result in automatic notification to Emergency Services and is dependent on telecommunication signal at the time;
    • SafeZone relies on Google or Apple Maps to indicate the location of the user;
    • functionality is subject to device compatibility and condition;
    • location services must be enabled at all times for SafeZone to operate effectively;
    • updates and further downloads may be required;
    • the Customer/End User is responsible for any network charges or fees incurred;
    • the End User's device must not be used once an alert has been issued until the monitoring centre has made contact; and
    • if no contact has been made within 3 minutes of an alert, the End User should immediately contact emergency services directly.
  6. VitalCALL cannot and will not accept responsibility for any failure by SafeZone to issue an alert.

2.8 Customer Warranty and Guarantee

The Customer warrants it has informed itself of the nature, purpose and limitation of the Services. The Customer must not make claims, representations or warranties on behalf of VitalCALL without prior written authorisation.

The warranty does not cover:

  • defects caused by failure to maintain and test the Equipment;
  • fair wear and tear;
  • damage caused by the Customer's negligence, abuse, incorrect installation, vandalism, fire, water damage, power surge, lightning, electrical storm or other circumstances outside VitalCALL's control;
  • failure to replace or recharge consumables such as batteries; or
  • unauthorised repair, modification, removal or reinstallation by anyone other than VitalCALL.

2.9 End User Details and Privacy

All personal information collected for the purposes of providing the Services will be handled in accordance with VitalCALL's privacy policy, available at www.VitalCALL.com.au or by contacting the VitalCALL Privacy Officer, PO Box 6247 Silverwater Business Park 1811, or au_privacy@chubbfs.com.

If the Customer does not provide requested information, this may affect or prevent VitalCALL's ability to provide the Services, and VitalCALL may terminate the Agreement without further liability. The Customer must keep all personal information held by VitalCALL accurate, up-to-date and complete.

2.10 Service Equipment

The Customer must maintain and service the Equipment to ensure it operates effectively. The Customer acknowledges it has satisfied itself the Equipment is fit for its intended purpose.

2.11 Notification of events and changes

The Customer must promptly notify VitalCALL if:

  • any defect, fault or malfunction in the Equipment is discovered;
  • the use, characteristics or layout of the premises change;
  • any telecommunication line is disconnected, severed or disabled; or
  • the Equipment, Number of Monitored Units, End User details or Long Range Communication Link changes in any way.

3. Term

3.1 Term

This Agreement commences on the Commencement Date and, unless otherwise specified, continues until terminated in accordance with these terms.

3.2 Automatic Renewal

This Agreement is automatically renewed for twelve (12) months on the day before expiry unless either party gives the other sixty (60) days' Notice of its intention for the Agreement not to automatically renew.

4. Fees

4.1 Invoices

VitalCALL shall send a tax invoice each Billing Period. The Customer must pay each tax invoice within 30 days using the Payment Method.

4.2 Establishment Fee

The Customer must pay the Establishment Fee within fourteen (14) days from the date of this Agreement.

4.3 Monitoring Fee

For each Billing Period the Customer must pay VitalCALL the Monitoring Fee multiplied by the Number of Monitored Units.

For retail Customers, the Monitoring Fee may be refunded in part, in alignment with any unused portion in the relevant Billing Period, other than where Monitoring Fees are paid monthly and Termination occurs prior to the expiry of the relevant Billing Period.

4.4 Report Fee

The Customer must pay VitalCALL the Report Fee each time VitalCALL makes a report for the Customer.

4.5 Administration Fee

The Customer must pay VitalCALL the Administration Fee each time VitalCALL amends the Number of Monitored Units.

4.6 Fee Variation

VitalCALL may vary the Monitoring Fee, the Administration Fee or the Report Fee by giving the Customer a minimum of thirty (30) days' Notice.

4.7 Payment of emergency services

Any expenses charged by emergency services (including police, fire brigade and ambulance) notified by VitalCALL must be paid by the Customer in all circumstances, including in the event of a false alarm.

4.8 GST

Where any supply of products or services under this Agreement is or becomes subject to GST, an amount equal to GST will be added to the amount exclusive of GST.

5. Cooling Off

5.1 Where the Customer is a Consumer, this Agreement may be subject to a cooling off period in accordance with the applicable legislation regarding unsolicited consumer agreements.

5.2 Where a cooling off period applies:

  • VitalCALL will not accept any payment during the cooling off period;
  • VitalCALL will not provide any Services during the cooling off period;
  • VitalCALL will not supply any Equipment exceeding five hundred Australian Dollars ($500) in value during the cooling off period;
  • the Customer may cancel this Agreement within this period without penalty by giving VitalCALL notice verbally or in writing.

5.3 If the Customer cancels during the cooling off period and Equipment was supplied, the Customer agrees to provide VitalCALL with reasonable access to the Customer's residence during Standard Hours to remove the Equipment within thirty (30) days of cancellation. Failure to do so will result in the Customer being liable for payment of the Equipment Fee.

6. VitalCALL's Liability

6.1 Australian Consumer Law

Subject to the consumer guarantees and other provisions of the Australian Consumer Law, VitalCALL will have no liability for any statements, representations, guarantees, conditions or warranties that are implied or not expressly contained in this Agreement.

6.2 Limitation of Liability

To the full extent permitted by law, the total liability of VitalCALL to the Customer under this Agreement is limited to $50,000 (fifty thousand Australian dollars) for retail Customers in the aggregate. This clause does not limit the liability of VitalCALL for injury to, or death of, a person caused directly by the gross negligence of VitalCALL.

6.3 Exclusion of Consequential/Indirect Loss

Subject to non-excludable laws, VitalCALL shall not be liable to the Customer for:

  1. any indirect, consequential, special or economic loss, cost, liability, damage or expense; or
  2. any loss of profit, use, income, rental, production, business opportunity or reputation.

6.4 Emergency service personnel

VitalCALL will not be liable for any direct or indirect loss or damage (including damage to property) caused as a result of emergency services personnel entering the Customer's or End User's premises.

6.5 Reasonable limitations

The Customer acknowledges it is reasonable for VitalCALL to limit its liability and that the Fees are based solely on the nature and value of the Services supplied.

7. Termination

7.1 Default

Either party may terminate this Agreement by giving thirty (30) days' prior Notice if the defaulting party becomes insolvent, ceases to carry on business, fails to pay any amount due, or is in breach of any provision (and any remediable breach is not remedied within the period specified in a Notice).

7.2 Termination by VitalCALL

VitalCALL may terminate this Agreement by providing thirty (30) days' prior written notice if:

  • any Fee remains unpaid for thirty (30) days after a payment request;
  • VitalCALL has been unable to contact the Customer or Nominee for more than sixty (60) days;
  • the Customer has failed to test the Equipment for more than sixty (60) days;
  • the Customer misuses or neglects the Equipment or fails to maintain it; or
  • the Customer changes address and VitalCALL is unable to provide the Services at the new address.

VitalCALL may terminate this Agreement immediately if it becomes unable to provide the Services due to circumstances beyond its control.

7.3 Termination for Convenience

Either party may terminate for convenience by giving the other party ninety (90) days' prior Notice.

7.5 Return of Equipment

Within thirty (30) days of expiry or termination, the Customer must return the Equipment to VitalCALL Returns, PO Box 218, Salisbury QLD 4107 in good working order. Any software held on a personal device should be removed and deleted at the time of expiry or termination. VitalCALL may charge the Customer the cost of replacement for any Equipment not returned.

8. Complaints and Disputes

8.1 If a retail Customer has a complaint about an invoice or payment, please call 1800 264 652 and VitalCALL will endeavour to resolve the complaint within three (3) working days. If unresolved, escalate by calling 1300 360 808.

8.2 If a retail Customer has a complaint about the Service or Equipment, please call 1300 360 808 and VitalCALL will endeavour to resolve the complaint within five (5) working days. If unresolved, escalate by requesting to speak with a supervisor.

9. Other Representations

Except as expressly provided in this Agreement, VitalCALL makes no representation as to the suitability of the Services for the Customer's or End User's purpose.

10. Force Majeure

Neither party shall be in breach of this Agreement if it fails to perform an obligation as a result of an event beyond its reasonable control, including electrical shortages, telecommunication outages, power failure, strikes, fire, flood, storm, cyclone, act of God, war, terrorism, epidemic or pandemic, legislation, regulation or other governmental act.

11. Assignment

The Customer may not assign its rights without the prior written consent of VitalCALL. VitalCALL may at any time assign or novate any part of its rights and obligations to a reputable and competent organisation (including a related entity) by giving the Customer thirty (30) days' Notice. VitalCALL may subcontract its rights and obligations without restriction.

12. Intellectual Property

VitalCALL is the owner or authorised licensee of all Intellectual Property Rights in the Equipment and the Services. VitalCALL grants the Customer a royalty-free, non-exclusive, non-transferrable, revocable licence to use the Intellectual Property Rights solely as necessary to use the Equipment and Services in accordance with this Agreement. The Customer must not modify, adapt or reverse-engineer the Equipment or Services.

13. General

13.1 No employment, partnership or agency relationship. VitalCALL is an independent contractor.

13.2 Entire agreement. This Agreement comprises the entire agreement between the parties in relation to the Services and supersedes any prior representations.

13.3 Severability. Any provision that is illegal, void or unenforceable shall not form part of this Agreement to the extent of that illegality. Remaining provisions are unaffected.

13.4 Variation. This Agreement may be varied only by the signed written agreement of both parties.

13.5 No waiver. Delay, failure or omission to enforce any provision shall not affect that provision or the party's rights.

13.6 Governing law. This Agreement is governed by the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of that state.

13.7 Dispute Resolution. Senior representatives from each party must meet and use all reasonable endeavours to resolve any dispute amicably. If unresolved within twenty-one (21) days, either party may refer the dispute to a court of competent jurisdiction in New South Wales.

13.8 Notices. Any notice must be in writing and given to the relevant Contact Officer.

13.10 Independent Professional Advice. The Customer warrants that prior to entering into this Agreement it has been given the opportunity and relied on its own independent professional advice.

13.13 International Trade Compliance. As a subsidiary of a US group of companies, VitalCALL is required to comply with the export control laws and sanctions of the United States of America.

13.14 Modern Slavery. The parties each represent and warrant they have not been convicted of any offence involving Modern Slavery, have not engaged in acts of Modern Slavery, and comply with the legislative requirements of the Modern Slavery Act 2018 (Cth).

14. Key Definitions

  • Alarm Signal — a signal received by and sent from Equipment to the Central Monitoring Facility (including test, accidental and emergency activation) indicating an alarm condition has occurred.
  • Central Monitoring Facility — a facility which contains the monitoring equipment and is staffed 24 hours, every day of the year, to receive Alarm Signals and initiate the appropriate responses.
  • Consumer — any consumer as defined in section 3 of the Australian Consumer Law.
  • Emergency Contact — the person(s) the Customer nominates as an emergency contact in the Customer Service Agreement.
  • End User — the person(s) nominated by the Customer to use the Equipment.
  • Equipment — the equipment that receives Alarm Signals and communicates with the Central Monitoring Facility, including PERS Equipment, Mobile Pendant and accessories.
  • Mobile Pendant — the VitalCALL mobile personal emergency system that utilises GPS tracking to identify the Customer's geographical location in the event of an Alarm Signal.
  • Nominee — the person the Customer nominates as their agent under this Agreement.
  • PERS Equipment — the VitalCALL personal emergency response unit installed at the Customer's premises which responds to alarm and other signals and communicates with the Central Monitoring Facility.
  • Setup Guide — the self-installation and relocation booklet provided by VitalCALL.
  • Standard Hours — between 9.00am and 5.00pm Monday to Friday (excluding public holidays).
  • Warranty Period — 12 months following the date of agreement to these Terms and Conditions.

VitalCALL Terms and Conditions — May 2024.