© Oyana 2023
DISCLAIMER AND IMPORTANT TERMS
1. Oyana Health is a platform that allows customers to connect with Support Workers. Purchase different health products and home test kits. Oyana Health provides a platform only and does not engage Support Workers or provide Care Services.
2. By using Oyana Health, you agree and acknowledge that any engagement for Care Services is between you and the Support Worker or Customer only and that Oyana Health is not a party to any such engagement and/or employment contract that may be entered into.
3. By using Oyana Health, You agree to the limitations of liability, warranties, and indemnities set out in clause 9.
b) Eligibility to use the Site and Services
2.1. By using Oyana Health’s Site and/or Services, You acknowledge, warrant, and represent to and any User that (Member Eligibility Criteria):
2.1.1. If You are an individual, you are at least 18 years old;
2.1.2. If You are an organization, company, or other entity, that You:
a) Are validly incorporated; and
b) Have full power, authority, and corporate approvals necessary
to enter into this Agreement and any Support Worker Contract;
2.1.3. You have the right, authority, and capacity to enter into this
2.1.4. You will abide by:
a) All the terms and conditions of this Agreement;
b) All of Oyana Health ’s policies as posted on the Site from time
to time, Oyana Health ’s Code of Conduct, and any relevant code of ethical behavior that applies to You as a Support Worker or Customer; and
c) Code of Conduct (if you are a Support Worker providing Care Services to participant);
d) The Member Standards and refrain from engaging in Prohibited Conduct as set out in clause 8 below; and
e) The Payment Terms set out in clause 10 below. You agree and acknowledge that all payments relating to Care Services must be made through the payment channels provided or specified by Oyana Health, and in accordance with this Agreement;
2.1.5. Neither You nor anyone at Your Premises:
(a) Has been convicted of any serious criminal offense, or any criminal offence involving violence, assault, fraud or dishonesty, any sexual offence, or any offence relating to the safety of children or vulnerable persons, any offense relating to workplace health and safety, or any offence which may reasonably be considered relevant to the provision of Care Services (Relevant Criminal Conduct);
(b) Is presently the subject of a complaint, claim, investigation, or other legal action, charge, proceedings or other litigation (Investigation or Legal Action) in respect of Relevant Criminal Conduct;
(c) Has ever been the subject of Investigation or Legal Action in respect of Relevant Criminal Conduct that has not been notified in writing to Oyana Health;
(d) Has engaged in any conduct that would prevent you from lawfully and safely providing Care Services;
(e) Has been and/or is currently required to register as a sex offender in any jurisdiction or with any governmental entity;
2.1.6. Any information provided by You is true and not misleading; and
2.1.7. You will act in good faith and not misuse the Site or the Services so as to cause harm or damage to Oyana Health or any other Member.
2.2. If you do not satisfy all of the Member Eligibility Criteria, You must not create a Member Account or use the Site and/or Services as a Member, but may access the Site as a Visitor. A Visitor may browse the Site in accordance with this Agreement, but will not have access to Member Services unless they become a Member.
c) Becoming a Member
3.1. To use the Member Services, you must set up a Member Account. To do so, you will be required to provide specific information and nominate Account Credentials to access Your Account.
3.2. In setting up or using a Member Account, You:
(a) Warrant that all information You provide to Us is true, accurate, current, and complete, and You agree to maintain and promptly update such information to keep the information true, accurate, current, and complete;
(b) Agree that you will not transfer or share your Account Credentials with any other person;
(c) Agree not to register for more than one Support Worker or Customer Member Account;
(d) Are solely responsible for:
· maintaining the confidentiality of Your Account Credentials;
· any and all use of Your Account Credentials and Your Account;
· All activities that occur under or in connection with your Account Credentials or Your Account; and
· Any act or omission of any Users who access the Site and/or Services under Your Account Credentials.
(e) Acknowledge and agree that:
· We rely on Account Credentials to know whether Users accessing the Site and using the Services are authorised to do so; and
· If someone (whether or not you) accesses our Site and/or Services using Your Account Credentials, We will rely on the Account Credentials, and assume that it is you who is accessing the Site and/or Services.
3.3. If you create your Account on behalf of a third party including any business or entity, you represent that You have the authority to represent such third party and bind the third party to this Agreement.
(For example, if You are creating an account on behalf of a family member or a client who is seeking Care Services, You represent that Your family member or client has provided You with proper authority to act on his/her behalf and that Your family member or client will abide by this Agreement.)
d) Member Verification
4.1. Disclaimer Regarding Verification: You agree and acknowledge that Members may make representations to you about themselves or the services they provide (including Care Services) via the Site, or in other communications. You are solely responsible for:
a) Making Your own inquiries and making your own decision regarding whether to engage a Member to provide Care Services (or to accept a request for Care Services); and
b) Verifying any document, information or representation given to you by a Member which has not previously been verified by Oyana Health or a provider to Oyana Health. Documents and information verified by Oyana Health are set out in the Verification Policy, noted on a Members’ profile on the Site, or otherwise outlined on the Site.
4.2. Verification of matters: In accepting an application to create a Member Account, Oyana Health will conduct certain checks and require a Member to provide information relevant to any mandatory criteria relevant to the Services to be provided (Verification Checks).
4.3. Additional matters that may be verified:
Oyana Health may also verify other information, including:
(a) Independently verifying a statement made by any Member or Visitor on the Site;
(b) Verifying that any Member meets any of the eligibility criteria established by Oyana Health from time to time, including funding verification;
(c) Worker screening checks;
(d) Identification verifications;
(e) Credential, qualification and training verification; and/or
(f) Using available public records to conduct searches and checks.
4.4. Completion of mandatory profile sections: Before accepting an application, to create a Member Account Oyana Health may request a Member complete all mandatory sections of their Site profile.
4.5. Consent and authorisation of Verification Checks: In creating Your Account or otherwise seeking to become a Member, You agree and consent to Oyana Health conducting the Verification Checks at any time in its sole and absolute discretion, and agree to provide Oyana Health with such information or documentation as it reasonably requests in order to do so, and authorise Oyana Health to conduct any such Verification Checks.
4.6. Verification Policy: Unless expressly stated otherwise, the steps that Oyana Health takes to verify information are strictly limited to those set out in the Verification Policy and any relevant legislation.
4.7. No warranty or liability for third party information or sources: In conducting any verification steps or checks, Oyana Health may rely on publicly available information including from government registers, and/or information provided by third parties. Oyana Health gives no warranty, makes no representation as to, and accepts no liability in respect of, the accuracy, reliability or quality of any such information.
4.8. Except as set out in this clause, Oyana Health does not, and is not required to, verify information provided by a Member or Visitor.
e) Content and Your use of the Site
5.1. Prohibited Content: Content of any kind that:
a) Is offensive, defamatory, distressing, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading, content of any kind;
b) Poses, or may pose, a risk to any person;
c) Threatens, harasses, humiliates or ridicules any person, or is otherwise unlawful, or encourages any such activity;
d) Is posted, uploaded, published or disseminated without the lawful owner’s permission, or breaches any obligation of confidentiality;
e) Contains any false or misleading statements, representations or advertising, (including but not limited to representations about the Member’s identity, qualifications, experience or reputation);
f) advertises or promotes goods or services other than Care Services;
h) Infringes another person’s copyright, trade mark or any other intellectual property right;
i) Includes a person’s Account Credentials or is directed to accessing a person’s Member Account other than in accordance with this Agreement or without the account holder’s consent;
j) May cause Oyana Health to breach any law or otherwise expose Oyana Health’s to liability;
k) Is or includes any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Site or the Services, or which may breach the requirements or cause the loss of services of Oyana Health’s internet service providers or other suppliers;
l) Is likely to interfere with or disrupt the proper and intended operation of the Site or the Services, or is, or contains any means of automatically searching or mining data from the Site; or
m) Is contrary to any of Oyana Health’s policies or code of conduct, is prohibited (Prohibited Content).
5.2. Content posted, created or sourced by/from others: When You access the Site and/or Services, You may obtain access to Content posted by other Members or third parties. You agree and acknowledge that:
a) Oyana Health’s provides a platform only, that acts as a forum for venue for the online distribution and publication of Content, and Oyana Health’s does not verify that Content;
b) Oyana Health’s makes no warranties or representations (either express or implied) whatsoever in relation to the Content, its accuracy, completeness, quality, currency or otherwise, and is not responsible for any Content;
c) The Content posted by others may include Prohibited Content;
d) Oyana Health’s may, but is not obliged to, take any action it considers (in its sole and absolute discretion) appropriate with respect to Content that it considers is Prohibited Content, may create liability for Oyana Health’s, harm Oyana Health’s business operation or reputation, cause Oyana Health’s to lose the services of its suppliers; and
e) Oyana Health’s reserves the right to reject or modify Content, at its discretion.
5.3. Content you post: You are solely responsible for all Content that You post, email or otherwise make available on the Site and/or Services. You:
a) grant Oyana Health’s a non-exclusive, royalty-free, fully paid, worldwide perpetual license that is capable of being sub-licensed, in respect of all of Your copyright and other intellectual property rights related to Content that You post or contribute to the Site;
b) Agree that any such Content or any derivative works thereof, may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by Oyana Health’s, and searched, displayed, printed or otherwise used or exploited by our Visitors and Members;
c) Must not post or upload any Prohibited Content; and
d) Warrant that none of the Content you post or upload is Prohibited Content or infringes the rights (including but not limited to copyright and other intellectual property rights) of any person.
5.4. Feedback, Reputation and Reviews: By using the Site and posting feedback (including a review) (“User Feedback”), You grant Us an unrestricted, worldwide, royalty-free, sub-licensable licence to use, reproduce, publish, communicate to the public, modify, and adapt Your User Feedback posted on the Site for the purpose of publishing that User Feedback on the Site and as otherwise permitted by this Agreement.
a) You may use any Feedback that is about you provided that you use it in a way that is not misleading or deceptive and is in accordance with Oyana Health’s policies as posted on the Site from time to time.
6. Intellectual property
6.1. You agree and acknowledge that the Agreement and Our Technology are our intellectual property and/or licensed to us under Nigeran and international copyright or trade mark laws, and may be subject to other intellectual property and proprietary rights and laws (Our IP). Title to Our IP at all times remains with us or the licensor, and nothing in this Agreement is, or is intended to be, a transfer of, or to create, any rights (including any licence) in Our IP.
6.2. Our Technology and Our IP must not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission, and the prior written permission of any applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology and Our IP.
6.3. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of Oyana Health’s or other entities. You are not authorised to use any Marks, and ownership will at all times remain with us or those other entities who own the Marks.
6.4. Any use of third-party software provided in connection with the Site and/or Services will be governed by relevant third-party licenses and not by this Agreement.
7. Care Services and the Support Worker Contract
7.1. Support Worker Contract is between Customer and Support Worker:
a) Oyana Health’s is a platform that allows Customers to connect with Support Workers. Oyana Health’s provides a platform only and does not engage or employ Support Workers or provide Care Services.
b) When a customer engages a Support Worker through the Site, the Support Worker and Customer contract with each other directly. Oyana Health’s is not a party to that contract.
c) The Support Worker solely decides whether to accept an offer from a customer to provide Care Services, and the Customer solely decides whether to engage a Support Worker to provide Care Services.
7.2. No relationship of employment, contracting or franchise, and no provision of Care Services by Oyana Health’s: Support Workers including any other person engaged or employed by any Support Worker are not employees, contractors, agents or franchisees of Oyana Health’s. You have entered into this Agreement on the basis that you are an independent contractor. Oyana Health’s does not employ you or any other person associated with the services that you offer as a Support Worker. Oyana Health’s does not market your services as a person employed or engaged by Oyana Health’s. Nothing in this Agreement or Your use of the Site and/or Services is intended to give rise to any such relationship, or any relationship of partnership or joint venture.
Oyana Health’s does not:
a) Provide or arrange for the provision of Care Services; or
b) Give any Members any direction about the provision of the Care Services; or
c) Operate a referral service or employment agency and does not recommend or endorse any particular Member; or
d) Provide advice regarding the quality or suitability of any particular Member for any Care Services, including any specific treatments or health conditions, and no information on Oyana Health’s Site and/or Services should be construed as health or medical advice; or
e) Participate in any interactions or arrangements between Support Workers and Customers for any provision of Care Services, except to provide the Site and/or Services to facilitate those interactions or arrangements, including any processing of payments on behalf of Customers to Support Workers;
f) Involve itself in the terms of a Support Worker Contract between Customers and Support Workers or control their engagement with each other, including regulating or managing any workplace laws or any occupational health and safety laws; or
g) Set or determine the agreed level of payment for and/or remuneration for the provision of the Care Services.
7.3. By using Oyana Health’s Site and/or Services, You acknowledge and agree that Oyana Health’s:
a) Acts only as an intermediary facilitating the provision of selected information between Members;
b) Will rely upon the information provided by Members except as otherwise verified in accordance with our Verification Policy;
c) Has no control over and is not responsible for any acts or omissions of any Users on or off Oyana Health’s Site and/or Services;
d) Makes no representation or warranty regarding the quality of any Care Services or any other services provided by any Member, or the accuracy or reliability of any information provided by any Member on its Site and/or Services; and
e) is not responsible for the interactions between Users including under any Support Worker Contract.
7.4. Mandatory terms of Support Worker Contracts: The Customer and the Support Worker may enter into a Support Worker Contract on such terms as they agree, but the following must be terms of every Support Worker Contract:
a) The Support Worker must charge for the Care Services at the Agreed Rate as agreed between the Customer and the Support Worker, but which must not be less than #3500 daily.;
b) Oyana Health’s is permitted to issue an invoice for the Care Services on behalf of the Support Worker at the completion of each Care Service, and Oyana Health’s to collect payment from the Customer (including by debiting the Customer’s nominated bank account or credit card, or other method agreed between Oyana Health’s and the Customer) or collect payment from the Customer’s nominated funding party (for example an Approved Provider);
c) The Support Worker must comply with any relevant Support Worker code of conduct and ethical behaviour and any applicable occupational health and safety policies or procedures;
d) The Customer must comply with any relevant Customer code of conduct and ethical behaviour and any applicable occupational health and safety policies or procedures;
e) The Support Worker Contract must be able to be terminated by either party at will, with no notice period, unless otherwise specified in the Support Worker Contract in writing;
f) The Support Worker warrants that:
· They are capable of providing, and where relevant, have the necessary qualifications and skills to provide the Care Services to the Customer;
· They are not prohibited from providing the Care Services;
· They are and will, for the duration of any Support Worker Contract, continue to be an Australian citizen and/or a person legally authorised to work in Australia;
· They are not a partner, employee, independent contractor or agent of Oyana Health’s;
· They will not engage in any Avoidance Conduct as set out in clause 11 below;
· If they are providing services in a Customer’s home and/or premises, You have inspected the Customer’s home, premises and any equipment to ensure that it is a safe work environment each time You arrive at the Customer’s home and/or premises;
· They have made themselves aware of and will comply with all laws and regulations relating to the provision of the Care Services, including any workplace laws and any applicable occupational health and safety laws, policies, procedures, or directions given by a Customer in relation to the provision of Care Services pursuant to any Support Worker Contract; and
· They are not employed or engaged by Oyana Health’s.
g. The Customer warrants that:
· They have inspected their premises and those premises are a safe work environment for the Support Worker to provide the Care Services;
· They have made themselves aware of and will comply with all laws and regulations relating to the engagement of Support Workers, including any applicable workplace laws and any applicable occupational health and safety policies or procedures.
7.5. Using the Site to connect with Support Workers / Customers:
a) Customers can connect with potential Support Workers through the Site by uploading the information regarding the requested Care Services, the Customer, and the Customer’s payment details, as required by the Site, and providing their consent to the debiting or charging of the Support Worker Fee and Platform Fee, along with any taxes in connection with the contracting of the Support Worker.
b) Support Workers can receive offers to provide Care Services and connect with potential Customers by uploading the information regarding the Support Worker and the Care Services they wish to offer and are qualified to provide, and the Support Worker’s payment details, as required by the Site.
c) When an offer by a Support Worker is accepted by the Customer, the Support Worker and Customer will enter into a Support Worker Contract with each other. Oyana Health’s will then release the Support Worker’s or Customer’s personal details (including surname and contact details) to those parties.
7.6. Service Log and Invoice on completion of Care Service:
a) As soon as practicable after the performance of each Care Service, the Support Worker must generate via the Site an electronic service log, that includes the start time, end time and any service notes for the relevant Care Service (Service Log).
b) The Customer will be notified of the Service Log via the Site, email or other notification. The Customer must approve or reject the Service Log within 24 hours of notification, or such other period notified on the Site (Review Period).
c) The Customer will be deemed to have approved the Service Log if they do not reject the Service Log before the expiration of the Review Period or if the Customer approves the Service Log through the Site.
8. Member Standards and integrity of the Site and Services
8.1. Member Standards: It is our goal to make access to our Site and Services a positive experience for Visitors and all Members. All Members are required to abide by the following standards to ensure the integrity of the Services and their fair and proper use:
a) Correspondence between Members is for the sole purpose of connecting Customers and Support Workers for purposes relating to Care Services.
b) If You receive personal information or health information of any other Member through the use of the Services, You may use the information:
· Only for the purpose of conducting a transaction through the Site and/or Services with that Member. You must not use another Member’s personal information for any other purpose; and
· Only in accordance with law (including applicable health records legislation, the Privacy Act and the Australian Privacy Principles under the Privacy Act) and any relevant direction, guideline, determination or recommendation made by the Australian Privacy Commissioner or a state or territory privacy commissioner, health services commissioner and/or any equivalent body or agency.
c) Members (whether Support Workers or Customers) must not discuss with a third party any information gained about other Members (whether Customers or Support Workers, or their personnel) in the course of the supply of the Care Services.
d) Members who are Support Workers undertake to report any incidents of abuse or neglect of a child, an elder or a person with a disability to the relevant state authority and to Oyana Health’s customer care team (except where prohibited by law).
e) Members must not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site and/or Services, use the Site or Services, or access the Site and/or Services for any purposes other than for which the Site and/or Services are being provided to them.
8.2. Prohibited Conduct: Members must not do any of the following:
a) Make use of the Platform to recruit or subcontract any other Member for the provision of services of a similar nature to the Care Services;
b) Contact another Member for any purpose other than as set out in this Agreement;
c) Harass, intimidate or otherwise engage in illegal or offensive behaviour with respect to any other Member, or use the Site to stalk another person;
d) Conduct or promote any illegal activities while using the Site and/or Services;
e) Upload, distribute or print any Prohibited Content;
f) Use the Site and/or Services to generate unsolicited email advertisements or spam;
g) Allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);
h) Misuse or attempt to interfere with the Site and/or Services, including by:
· Attempting to reverse engineer or jeopardise the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site, or attempt to gain access to secured portions of the Site and/or Services to which they do not possess access rights;
· Uploading or transmitting to the Site any form of virus, worm, trojan horse, or other malicious code;
· Interfering in any way with the proper functioning of the Site and/or Services or interfere with or disrupt any servers or networks connected to the Site and/or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site and/or Services;
· Using any high volume automatic, electronic or manual process to access, search, harvest, “screen scrape”, monitor, “mine” information from the Site and/or Services (including without limitation robots, spiders or scripts) or copy any static or dynamic web page on the Site or the content contained on any such web page for commercial use without Oyana Health’s prior express written permission;
· Mirror or frame the Site or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; and / or
i. Impersonate any person or entity, or otherwise misrepresent an affiliation with a person or entity.
9. Limitation of warranty, liability, and indemnity
9.1. Consumer and other statutory rights not affected: Nothing in this Agreement limits any right or obligation that You may have under the Australian Consumer Law (ACL), including any consumer guarantee or right to refund, or any other right under any law, to the extent that it cannot lawfully be excluded or limited.
9.2. Use of Site and Services at Your sole risk: You agree and acknowledge that, subject to clause 9.1, Your use of the Site and/or Services, and any material or information downloaded or otherwise obtained through the use of the Site and/or Services, is at Your sole discretion and risk. You are solely responsible and liable for any damage, including (without limitation) damage to Your computer or loss of data that results from the download of such material and/or information. You agree and acknowledge that:
9.2.1. Oyana Health’s Services, the Site and all Content on it are provided on an “as is” and “as available” basis, and (to the extent permitted by law or as otherwise provided in this Agreement) without any warranty or representation of any kind either express or implied;
9.2.2. You assume all responsibility in connection with choosing any Support Worker, whether or not You obtain information about such Support Worker on or through the Site; and
9.2.3. No advice or information, whether oral or written, obtained by You from Us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in this Agreement.
9.3. Exclusion / limitation of warranty: To the fullest extent permitted by law, Oyana Health’s disclaims and excludes all warranties and representations of any kind, whether express or implied, in respect of the Site and the Services, including but not limited to any warranty:
9.3.1. As to title, quality, merchantability, fitness for a particular use or purpose, non-infringement, operability, condition, quiet enjoyment, value, accuracy of data and system integration;
9.3.2. That the Site and/or Services will meet Your requirements;
9.3.3. That the Site will be accurate, reliable, uninterrupted, secure or error-free;
9.3.4. That the Site, or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;
9.3.5. As to the results that may be obtained from the use of the Site and/or Services; and
9.3.6. That defects in the Site and/or Services will be corrected.
9.4. No liability for conduct of other Members: To the fullest extent permitted by law, Oyana Health’s expressly disclaims, and You expressly release Oyana Health’s, and each of its Affiliates, from any and all liability whatsoever for any damages, suits, claims and/or controversies that have arisen or may arise from and/or in any way relate to any acts or omissions of Members on or off the Site, including without limitation in connection with any provision of Care Services by any Support Worker.
9.5. Exclusion of liability: To the fullest extent permitted by law, Oyana Health’s and each of its Affiliates will not be liable to You or any third party, whether in contract, warranty, tort (including negligence and strict liability), statute, or otherwise, for:
9.5.1. Any injury, loss or damage suffered by any Support Worker or Customer in relation to the provision of any Care Services;
9.5.2. Any advice, treatment or other Services rendered by any Support Worker, or for any malpractice claims;
9.5.3. Any other claims that may arise directly or indirectly from the provision of Care Services or any other actions of any Support Worker;
9.5.4. any indirect, special, incidental, consequential or exemplary damages that may be incurred by You;
9.5.5. any loss of income, revenue, goodwill, business, profits and/or data (whether direct or indirect) that may be incurred by You;
9.5.6. Any claim, damage, or loss which may be incurred by You arising from, out of or related to:
a) Your use of, or access to, or the inability to use or to access, the Site and/or Services;
b) any suspension and/or termination of your use of and/or Your access to the Site and/or Services as set out in clause 15 below;
c) Your transactions involving the Site;