1.1 CancerAid Pty Ltd ABN 75 607 610 257 provides the CancerAid web & mobile system for assisting cancer patients and their caregivers by providing information and organising the patient’s experiences.
1.2 CancerAid works in partnership with various cancer institutions, research organisations and cancer specialists to help improve cancer care on a global scale.
A. KEY DEFINITIONS
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
a. Agreement means these Terms of Service.
b. Appointment means an appointment record, or reminder created within CancerAid.
c. CancerAid means the:
i. Web application accessible from https://www.canceraid.com.au; and/or
ii. The CancerAid mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
d. Cancer Information means general information regarding diagnosis, symptoms, prognoses and treatment of different types of cancer, but does not include Medical Advice.
e. Carer means a user of CancerAid that is authorised by a Patient to create or use the Patient’s account.
f. Champion means a user of CancerAid that a Patient has authorised to access such information (including information contained in the Patient’s EHR) and features associated with the Patient’s account, as the Patient may determine.
g. Company means CancerAid Pty Ltd ABN 75 607 610 257.
h. EHR (Electronic Health Record) means the record of an Individual’s Health Information in CancerAid.
i. Fee means any fee payable by a User for access to, or use of CancerAid.
j. Health Information has the same meaning as in the Privacy Act 1988 (but generally refers to information about the health, injury or a disability of an Individual at any time).
k. Individual means a Patient with an EHR about them in CancerAid.
l. Institution means a medical or healthcare provider, hospital or other cancer support or research organisation that sponsors CancerAid and that a Patient may acknowledge a connection with in CancerAid.
m. Invitation means an invitation sent via SMS or email by a Patient to a person in order to create a Champion account, connected with the Patient’s account.
n. Journal means the features of CancerAid that allows a User to upload User Content to track and share experiences.
o. Journey Organiser means the set of CancerAid features to which a User may supply User Content, comprising of the following modules:
iv Questions; and
v. Such other features of the Journey Organiser that the Company may make available from time-to-time.
p. Medical Advice means any medical advice or information specific to a Patient that is required by law to be provided by a Practitioner.
q. Medical Champion means a Champion that is a Practitioner, authorised to access an Individual’s EHR.
r. Patient means a user of CancerAid that has been diagnosed with cancer, and includes a Carer where implied by context.
s. Practitioner means (without limitation) a medical practitioner, doctor, medical specialist, physician, or other healthcare provider qualified to provide Medical Advice.
u. Question means a question entered into CancerAid by a User to be answered by CancerAid or another User connected to the User’s account.
v. Record means the features of CancerAid that allows the User to record upload content to the Individual’s EHR.
w. Research Data means any User Content that has been de-identified and which is no longer capable of identifying the User that supplied it, or other User that is the subject of that data.
x. Research Organisation means an organisation that conducts research on a type, or cancer generally, and may include an Institution.
y. Staff Member means any employee or other personnel of a Medical Champion that may be authorised to access an Individual’s EHR but are not qualified to provide Medical Advice or treatment.
z. Study means a medical research study of cancer or a Type, conducted by an Research Organisation.
aa. Third Party means any person that is not a User.
ab. TPS means a third party social media service that CancerAid may supports some integrations with, including where available and without limitation Facebook, Twitter and Instagram.
ac. Type means a type of cancer that a Patient may be diagnosed with.
ad. User means any Patient, Carer, Medical Champion, Individual or Staff Member that uses CancerAid.
ae. User Content means data that is uploaded or input into CancerAid by the User or that forms part of the User’s Intellectual Property.
a. Patients, Carers and Individuals (Item E)
b. Champions (Item F)
c. Medical Champions (Item G)
d. Staff Members (Item H)
B.2 In addition to any other express or implied consents, by using CancerAid the User accepts and agrees to the terms of:
a. This Agreement; and
C. USING CANCERAID
C.1 Cancer Information.
a. CancerAid provides Cancer Information as a guideline relative to the Patient’s Type, including:
ii. Known causes;
ix. Practitioners with specialist knowledge of the Type; and
x. News regarding treatment and clinical trials of the Type.
b. The Company makes best endeavours to ensure that Cancer Information is kept accurate and up-to-date, however the Company does not warrant the accuracy of Cancer Information at any time.
c. Cancer Information is provided as a guideline only, and is not intended as Medical Advice or as a substitute for a consultation with a Practitioner. The Company strongly advises each Patient and Carer to verify the accuracy of any Cancer Information with a Practitioner before relying on it.
d. The Company does not provide Medical Advice, whether via CancerAid or otherwise. Each Individual, Patient and Carer is advised to always consult a Practitioner regarding the Individual or Patient’s medical circumstances.
e. CancerAid may only provide answers to Questions with Cancer Information, not Medical Advice.
C.2 User Content, EHRs and Research Data.
a. CancerAid may allow Users to enter User Content for the purposes of:
i. Creating and Updating the Patient’s EHR;
ii. Creating Appointments;
iii. Record and track a Patient’s symptoms, nutrition, exercises and experiences in a Journal entry;
iv. Ask Questions; or
v. Communicating and sharing with other Users.
b. The Patient shall be able to grant such permissions to other Users to view the information and access such features associated with the Patient’s account as the Patient may determine.
c. CancerAid shall not grant a User access to an EHR without the consent of the User to whom the EHR relates.
d. Each User acknowledges that any User Content, Personal Information or Health Information that they enter into CancerAid may be de-identified in order to create Research Data for the purpose of generating statistical data for:
i. Assisting Research Organisations to conduct cancer research (including for a Study); and
ii. Improving CancerAid.
C.3 Carers, Individuals and Patients
a. A Patient account may only be created and managed by:
i. An Individual; or
ii. A person authorised by the Individual to be their Carer.
b. The Company may require written evidence that a user is authorised to create or use a Patient account as a Carer, including (without limitation):
i. Written authorisation provided by an Individual;
ii. Power of Attorney; or
iii. Such other written evidence as the company may deem acceptable in its discretion.
c. The Company may suspend access to any user that the Company cannot verify is authorised to use a Patient account as a Carer.
C.4 Authorising Champions
a. A Patient may authorise up to 5 Champion accounts to be connected with the Patient’s account.
b. The Patient may send an Invitation to such persons that the Patient wishes to be a Champion via SMS or email..
d. A person that has received an invitation to create a Champion account must follow the link in the SMS or email in order to create a Champion account.
d. The Patient shall determine what features, information or other privileges are associated with the Champion account at the Patient’s sole discretion, including without limitation:
i. Cancer Information;
ii. Access to the Patient’s EHR;
iii. Journal Entries;
vi. Ask or answer Questions;
vii. Permissions for sharing via TPS; and
viii. Such other features and information that CancerAid may allow a Patient to control from time to time.
e. Each Champion acknowledges that their use of CancerAid is at the discretion of the Patient, and that the Patient may revoke their access to CancerAid at any time.
a. Institutions are not Users of CancerAid, but work with the Company to use Research Data for cancer research, and otherwise undertake initiatives to assist Patients and other people diagnosed with cancer.
b. Institutions may grant the Company a licence to use their logo and branding for use within CancerAid.
c. Institutions may also refer users to CancerAid, and allow Patients to associate their CancerAid account with the Institution.
d. By connecting the Patient’s account with an Institution, the Patient authorises the Company to provide the Institution with the Patient’s EHR, Personal Information or Health Information.
a. CancerAid may advise Users of Studies that are being conducted, and that a Patient may be eligible to take part in.
b. CancerAid may allow a User to contact a Research Organisation regarding participating in a Study.
c. CancerAid may also allow Users to participate in a Study.
d. Where a User takes part in a Study via CancerAid, the User acknowledges and accepts that:
i. The User does so at the User’s own risk;
ii. The User may be required to provide written authority to the Company to provide the User’s Personal Information (including Health Information, or EHR) to the Research Organisation, in addition to Research Data;
iii. The User may be required to accept the relevant Research Organisation’s terms for taking part in the Study;
iv. The Company makes no representation as to the safety or outcome of any Study, nor the safety or efficacy of the methods used by a Research Organisation in relation to a Study.
v. The Company shall not be responsible to a User in relation to a Study under any circumstance. Any dispute in relation to a Study is strictly to be dealt with between the User and the relevant Research Organisation.
e. A User may be required to provide to the Company and/or Research Organisation written consent in order to take part in Study. Such consent may be required to be written on paper and signed by the User, and may include acceptance of the Research Institution’s terms for participating in the Study.
f. In the event of conflict between this Agreement and a Research Organisation’s terms for participating in a Study, this Agreement shall prevail.
a. Each user acknowledges that CancerAid may require access to the User’s third-party calendar application in order to create an Appointment and/or notification.
b. The Company cannot warrant the efficacy of an Appointment or notification of an Appointment if the User:
i. Does not authorise CancerAid to connect the User’s account with the third –party calendar application; or
ii. Disables notifications on their mobile device.
D SHARING USER CONTENT
D.1 Social Media
a. CancerAid may allow a User to share certain types User Content via a connected TPS account (e.g. Journal entries).
b. Each User must exercise the utmost discretion when sharing User Content via a TPS, particularly if the User Content relates to a Patient.
c. Each User is responsible for ensuring that any User Content that they share via a TPS:
i. Is authorised to share the User Content by the owner of the User Content;
ii. Does not breach any policy or terms of service that apply to the TPS;
iii. Does not breach the Intellectual Property Rights of a Third Party; and
iv. Does not otherwise breach this Agreement.
D.2 Conduct.The User acknowledges and accepts that:
a. The Company accepts no responsibility for the conduct of any User of CancerAid.
b. The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via CancerAid or not (including via a TPS or a personal meeting).
c. The Company makes no warranty or representation as to the accuracy of any information provided by any User.
d. The Company makes no warranty as to the character or credentials of any User.
D.3 Lodging a Complaint.
a. If a User believes that another user’s behaviour is threatening, discriminatory, deliberately offensive, or breaches confidentiality or trust with another User, the User may lodge a complaint to the Company via email at firstname.lastname@example.org.
b. The Company may suspend or delete the account of any User that CancerAid determines conducts itself inappropriately.
c. The Company will advise the User of a suspended or deleted account of the decision to do so, but is under no obligation to identify a complainant.
d. The Company’s decision whether or not to suspend or remove a User account is at its absolute discretion. The Company’s decision shall be final and not subject to review.
E.1 CancerAid may enable Patients, Carers and Individuals to:
a. Access Cancer Information;
b. Record and track their journey in a Journal, including:
iii. Exercise; and
iv. Personal experiences.
c. Edit the Patient’s EHR;
d. Create Appointments;
e. Receive reminders;
f. Authorise up to 5 Champion accounts;
g. Participate in a Study;
h. Communicate with other Users and share User Content via CancerAid or TPS; and
i. Use such other features as the Company may allow from time-to-time.
E.2 The Patient, Carer and/or Individual agrees and accepts that:
a. Where the Patient provides Personal Information relative to a Champion (including the telephone number for the purposes of inviting the person to become a Champion) the Patient warrants that they are authorised to do so.
b. The Patient uses CancerAid at its own risk. To the extent permitted by law, under no circumstance will CancerAid be liable for any injury, illness, malpractice or death resulting from the use of CancerAid. It is the Patient’s responsibility to use CancerAid responsibly, and in accordance with any instructions from the Patient’s Practitioner.
c. The Patient indemnifies CancerAid against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Patient’s use of CancerAid;
d. CancerAid may share such aspects of the Patients EHR and other personal information of the Individual with any other User or Third-Party authorised by the Patient and/or Individual, as the Patient may determine;
e. Any information shared by CancerAid with a Medical Champion authorised by the Patient and/or Individual may be retained by the Medical Champion for the purposes of treating the Patient and updating their administrative records;
f. Any information shared by CancerAid with a Research Organisation authorised by the Patient and/or Individual may be retained by the Research Organisation for the purposes of treating the Patient and updating their administrative records;
g. CancerAid may send the Patient and/or Individual emails, text messages, push notifications and other alerts on behalf of Champions and other Users connected to the Patient’s account;
h. Any consent made by a Patient and/or Individual through CancerAid is valid and binding unless and until revoked by the Patient and/or Individual, and a Medical Champion may rely on a consent made through CancerAid without any need to further verify the veracity of that consent;
i. All information about an Individual is used and controlled by the Patient, Individual, Carer or Champion, not CancerAid;
j. All information input to CancerAid about an Individual is provided with that Individual’s consent.
k. Each Medical Champion, Research Organisation or Institution authorised by the Patient and/or Individual to receive the EHR and other personal information may have its own policy governing access to this information and the use of CancerAid by its staff members.
l. CancerAid may be hosted on servers located in Australia by Amazon Web Services operated by Amazon Web Services Inc. CancerAid may also use email servers located outside of Australia using SendGrid operated by SendGrid, Inc. Such services may host or transmit a Patient’s EHR.
F.1 CancerAid may enable a Champion to:
a. Access Cancer Information;
b. Contribute information to a Patient’s EHR;
c. Upload User Content;
d. Participate in a Study;
e. Answer Questions;
f. Communicate with other Users and share User Content via CancerAid or TPS; and
g. Receive notifications and monitor the progress of a Patient;
F.2 The Champion agrees and warrants that:
a. It shall not disclose any information about a User to any other person or party other than as authorised by the User;
b. It shall ensure all Personal Information it has access to through its use of CancerAid is kept and used in accordance with applicable privacy laws in the jurisdiction;
c. It shall only use CancerAid for its intended purpose as set out in this Agreement.
d. The Patient may revoke the Champion’s access to CancerAid (including any feature or information within it) at any time, at the Patient’s discretion.
F.3 Any person who registers a Champion in CancerAid warrants that he or she is the person authorised by the Patient to do so.
G.1 In addition to features available to a Champion, CancerAid may enable a Medical Champion to:
a. Answer Questions;
b. Provide Medical Advice;
c. Print information stored in CancerAid;
d. Receive notifications and monitor the progress of Patients;
e. Authorise Staff Members to access and use CancerAid;
f. Communicate with Patients.
G.2 In addition to the warranties provided as a Champion pursuant to item 2, the Medical Champion agrees and warrants that:
a. It is solely responsible for ensuring that its use of CancerAid and storage of EHRs in CancerAid is compliant with the local laws of the Medical Champion and/or the Medical Champion’s Patients; and
c. To the extent permitted by law the Medical Champion indemnifies and will hold CancerAid harmless against all costs, claims damages and expenses for any:
i. Penalty imposed upon the Medical Champion;
ii. Injury, illness or death caused to a Patient, Individual or Third Party;
iii. Damage to the property of any Patient, Individual or Third Party;
iv. Claim of infringement of intellectual property rights made by a Third Party;
v. Claim of breach of confidentiality by any Third Party; As a result of the Medical Champion’s use of CancerAid.
d. It shall not store or record any Health Information that it can access through CancerAid unless it is fully compliant with the Privacy Act;
e. It shall not disclose any information, other than to its authorised Staff Members, about an Individual to any other person or party other than as authorised by the Individual or the Patient;
f. It shall ensure all personal information it has access to through its use of CancerAid is kept and used in accordance with applicable privacy laws in the jurisdiction;
g. It shall only use CancerAid for its intended purpose as set out in this Agreement; and
h. It shall comply with all anti-SPAM legislation in its jurisdiction.
G.3 Any person who registers a Medical Champion in CancerAid warrants that he or she is an authorised representative of that Medical Champion, with the requisite authority to bind the Medical Champion to this Agreement.
H.1 Staff Members agree to use CancerAid in accordance with the rights and obligations of the Medical Champion that authorises their access, except a Staff Member may not use CancerAid to:
a. Answer Questions; or
b. Provide Medical Advice.
I.1 CancerAid can enable an Individual to access information uploaded by:
a. The Individual;
b. The Individual’s Carer; or
c. The Individual’s Medical Champion.
I.2 If an Individual is a under the age of 18 he or she must obtain consent from their parent before using CancerAid.
J.1 CancerAid shall generally be free to use. However the Company may charge Fees (if any) as advertised for the use of certain accounts or features of CancerAid, and the terms of those Fees are set out in the General Conditions.
J.2 Where a Fee is paid for a particular term of access to CancerAid, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using CancerAid within that term.
K. ELECTRONIC TRANSACTIONS
K.1 The User agrees that when it provides any consent, authority or agreement through CancerAid it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
K.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through CancerAid as an electronic transaction shall be sent directly from its email address.
L.1 The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
L.2 The Company does not guarantee the validity of any electronic transaction.
M. ACCOUNT ACCESS USING THIRD-PARTY SERVICES
M. 1 Registration & Login.
a. A User may be able to register as a User, and access CancerAid, by using their account with certain third party services (TPS) (e.g, Facebook, Twitter etc.);
b. As part of the functionality of CancerAid the User may connect their profile with a TPS by:
i. Providing their TPS login information to the Company through CancerAid; or
ii. Allowing the Company to access their TPS in accordance with its terms & conditions of service; and
c. When connecting to CancerAid using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.
M.1 Ongoing Availability.
a. The User agrees that User access to CancerAid may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and CancerAid;
b. The User may disconnect the connection between CancerAid and the TPS at any time.
c. The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
M.3 Data from TPS. Where a User connects and or registers their profile using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile within CancerAid.
N. TERM & LIMITATIONS The User’s license to access CancerAid shall be ongoing until terminated by The Company in accordance with this Agreement.
N. 1 Limitations on Use. The Company may limit or restrict access to CancerAid from time-to-time as it sees fit, including (but not limited to):
a. The Company may restrict access only to reputable and/or registered Medical Champions; and
b. The Company may restrict access to CancerAid to certain jurisdictions where it is able to offer CancerAid.
O.1 The User must register an account in CancerAid to use CancerAid.
O.2 The Company may set any registration requirements in its absolute discretion.
P. CONFIDENTIAL INFORMATION
P.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
a. Health Information;
b. Personal information;
c. Business, employees and contractors;
Q.1 This Agreement may be terminated at any time by:
a. Written notice of one party to the other; or
b. By cancelling or otherwise terminating your account through CancerAid.
Q.2 Deleting CancerAid does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that CancerAid has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
Q.3 The User agrees and accepts that deletion of CancerAid may result in loss of data for which the Company is in no way liable.
R. DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
R.1 The User acknowledges that CancerAid:
a. Is dependent on third-party services, including but not limited to:
i. Telecommunications services;
ii. Hosting services;
iii. Email services;
iv. Analytics services; and
v. Banks, credit card providers, BPAY.
b. Provides links to third party websites containing (without limitation) health information.
R.2 The User agrees that the Company shall not be responsible or liable in any way for:
a. Interruptions to the availability of CancerAid due to third-party services; or
b. Information contained on any linked third party website.
S.1 Governing Law. New South Wales, Australia
S.2 Reference City.
1.1 The User wishes to access CancerAid provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of CancerAid to the User by the Company.
2.1 The following definitions apply in this document:
a. ABN means Australian Business Number.
b. ACN means Australian Company Number.
c. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item S of the Important Terms.
d. Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i. All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii. All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii. All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv. All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v. The party’s policies and procedures; and
vi. All information contained in this document, But excludes information that the other party can establish:
vii. Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii. Is in the public domain other than by a breach of this document or any obligations of confidence.
e. Corporations Act means the Corporations Act 2001 (Cth).
f. Fees mean the fees and charges as set out in the Important Terms.
g. General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
h. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
i. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
j. Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
k. Health Information has the meaning given to it in the Privacy Act.
l. Moral Rights means:
i. Moral rights pursuant to the Copyright Act 1968 (Cth);
ii. Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
m. Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
n. Pricing means the pricing as notified to the User in writing by the Company from time-to-time.
o. Privacy Act means the Privacy Act 1989 (Cth).
p. Solution means the CancerAid solution described in the Important Terms.
q. Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
r. Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
a. The singular includes the plural and the opposite also applies.
b. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
c. A reference to a clause refers to clauses in this Agreement.
d. A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
e. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
f. A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
g. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
h. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3. APPLICATION OF THIS AGREEMENT
3.1 This Agreement applies to use of and access to CancerAid.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using CancerAid.
3.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of CancerAid at the User’s next login after the User receives written notice of the update(s).
4. THE CANCERAID PRODUCT
4.1 CancerAid is the product described in the Important Terms.
4.2 CancerAid is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that CancerAid is:
a. Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
b. Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to CancerAid is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and redesign, improve or otherwise alter CancerAid.
4.5 The Company shall not exercise its rights under clause 4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of CancerAid to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use CancerAid for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6.1 The User agrees that it shall only use CancerAid for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
7. AUTHORISED USERS
7.1 The User shall authorise users to access CancerAid in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to CancerAid.
7.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its CancerAid account.
8 CUSTOMER DATA
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
8.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for CancerAid).
9.3 The Company makes no warranty as to the suitability of CancerAid in regards to the Medical Champion privacy obligations at law or contract, and it is the Medical Champion’s responsibility to determine whether CancerAid is appropriate for the Medical Champion’s circumstances.
10.1 The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
10.2 The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
10.3 The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the User’ licence.
10.4 The Company may revoke or suspend the User’s license to access CancerAid for unpaid Fees without liability.
10.5 Where the Company:
a. Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
b. Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.
10.6 All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
10.7 GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
10.8 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11. INVOICING & PAYMENTS
11.1 The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
11.2 The terms of payment set out in the Fees shall apply.
11.3 Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
11.5 The User authorises the Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
12.1 The Company takes the security of CancerAid and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
12.2 The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
12.3 The Company may limit the amount of data that the User stores in CancerAid, and shall advise the User of such. Data that is stored with CancerAid shall be stored according to accepted industry standards.
12.4 The Company shall perform backups of CancerAid in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
13.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to CancerAid to the best of its abilities, however:
a. Access to CancerAid may be prevented by issues outside of its control; and
b. It accepts no responsibility for ongoing access to CancerAid.
13.2 Users may prepare for unscheduled unavailability of CancerAid by:
a. Keeping their CancerAid mobile app up to date, which will store local copies of the data; and
b. Printing hard copies of reports.
14 INTELLECTUAL PROPERTY
14.1 The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
14.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of CancerAid.
14.3 The CancerAid Application. The User agrees and accepts that CancerAid is the Intellectual Property of the Company and the User further warrants that by using CancerAid the User will not:
a. Copy CancerAid or the services that it provides for the User’s own commercial purposes; and
b. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in CancerAid or any documentation associated with it.
14.4 All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to CancerAid.
15.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2 Each party acknowledges and agrees that:
a. The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
b. It owes an obligation of confidence to the Discloser concerning the Confidential Information;
c. It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
d. All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
e. Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
a. Any actual, suspected, likely or threatened breach by it of clause 1;
b. Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
c. Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
a. Any actual, suspected, likely or threatened breach of a term of this Agreement; or
b. Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
16 LIABILITY & INDEMNITY
16.1 The User agrees that it uses CancerAid at its own risk.
16.2 The User acknowledges that CancerAid does not provide Medical Advice, nor does it hold itself out to provide Medical Advice.
16.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
16.4 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
16.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with CancerAid, including any breach by the User of these Terms.
16.6 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, illness, injury, death, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use CancerAid or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such injury, illness, death, damage, or business interruption of any type, whether in tort, contract or otherwise.
16.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
a. The re-supply of services or payment of the cost of re-supply of services; or
b. The replacement or repair of goods or payment of the cost of replacement or repair.
17.1 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
17.2 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18 and19 survive termination of this Agreement.
18.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
18.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
a. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
b. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 18.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
c. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
d. Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
19 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
19.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
19.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
19.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
19.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
19.5 Notices must be sent to the parties’ most recent known contact details.
19.6 The User may not assign or otherwise create an interest in this Agreement.
19.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
20.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
20.2 To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
20.3 Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
20.4 The relationship of the parties to this Agreement does not form a joint venture or partnership.
20.5 No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
20.6 Governing Law. This Agreement is governed by the laws of the state set out in item S of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
20.7 Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.