Last Updated: June 2020
DermaSensor offers certain software services that function with and on individual devices (each, a Device) that must be purchased by the Customer to access both DermaSensor’s cloud-hosted software and the software installed into the Device itself(the Services).
These Standard Terms form part of the DermaSensor Customer Agreement between DermaSensor Pty Ltd and the Customer, and explain the parties’ rights and obligations in relation to the Services offered by DermaSensor, including the DERMASENSOR™ device and associated software.
1.1 Terms defined in the Key Terms for part of these Standard Terms. Other defined terms have the meaning set out below:
Account means an account set up on DermaSensor’s internal billing and management system in relation to the Customer.
Aggregated Data means de-identified information about Patients or Customers that is collected and aggregated by DermaSensor for the purposes of improving the Services, and which for the avoidance of doubt does not include Personal Information. Aggregated Data may include derivations of Customer Data or Patient Data that has been de-identified.
Customer Data means information supplied by the Customer to DermaSensor via the Software for provision of the Services.
Data means Customer Data, Patient Data, Usage Data, and Aggregated Data.
Delivery Address means the physical address for delivery of Devices to the Customer, as specified by the Customer in the Account.
Delivery Date means the date the Customer receives the Device(s).
DermaSensor IP means the title, copyright, patent and other intellectual property rights in, and all copies, modifications and derivative works of, the Devices, Software and Services, as well as the DERMASENSOR™ brand and logo, and anything else DermaSensor develops or delivers under this Agreement.
Fees means the Device purchase and Annual Fees payable by the Customer to DermaSensor as specified in the Key Terms.
Patient Data means Personal Information collected from or about Patients, but excludes Aggregated Data.
Patients means human patients on which the Device is used by healthcare professionals.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information is true or not and whether the information is recorded in a material form or not, which DermaSensor collects or handles whilst performing the Services under this Agreement.
Services means the services provided by DermaSensor via the Software for operating the Device, as defined in Included Device and under this Agreement.
Software means the digital code and end products of the digital code used by DermaSensor to deliver the Services.
Term means the period from the Commencement Date until expiry of the Agreement in accordance with clause 6 of these Standard Terms.
Website means www.dermasensor.com or any other site operated by DermaSensor.
- ACCOUNT REGISTRATION
2.1 In order to use the Service in relation to each Device, the Customer must:
- register for an Account via the Website; and
- following receipt of each Device purchased in accordance with clause 4, activate each Device received on that Customer Account (Device Registration).
The Customer will be permitted one Device Registration for each Device ordered and delivered to the Customer, as specified in the Key Terms.
2.2 The Customer represents and warrants that all required registration information is truthful and accurate and will remain accurately updated throughout the Term.
2.3 DermaSensor may suspend or terminate the Account, and any functionality associated with the Device at DermaSensor’s discretion without cause. The Customer is responsible for maintaining the confidentiality of its Account login information and is fully responsible for all activities that occur under the Account. The Customer agrees to immediately notify DermaSensor of any unauthorized use, or suspected unauthorized use, of the Account, or any other breach of security. DermaSensor will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- LICENCE GRANT
3.1 Subject to the Customer’s compliance with this Agreement and following each successful Device Registration, DermaSensor grants the Customer one non-exclusive, non-assignable, royalty free, licence per Device to access the Services during the Term as necessary to use, maintain and support the registered Device.
3.2 DermaSensor grants the Customer a non-exclusive license to display the DERMASENSOR™ name, logos and domain names provided by DermaSensor for the purposes for customer use (collectively, Brand Features) to promote and advertise the Customer’s use of the Device. When using the Brand Features, the Customer must not remove, obscure, distort, or alter any of our Brand Features or display our Brand Features in any way that is misleading, defamatory, infringing, libellous, disparaging, obscene, or otherwise objectionable to DermaSensor. All use by the Customer of the Brand Features (including any goodwill associated therewith) will inure to the benefit of DermaSensor. The Customer may not, at any time during or after the Term, challenge or assist others to challenge the Brand Features (except to the extent such restriction is prohibited by law) or the registration thereof by DermaSensor, nor will the Customer attempt to register any trade marks that are confusingly similar in any way to any Brand Features.
3.4 The Customer must submit a copy or image of any media release or advertising that includes any the Brand Features via the request form at http://support.dermasensor.com.
3.5 DermaSensor reserves all intellectual property rights not expressly granted to the Customer in this Agreement. DermaSensor or its licensors own the DermaSensor IP and the Customer does not acquire any ownership or intellectual property rights in any DermaSensor IP, other than as is necessary for the purposes of this Agreement.
4.1 DermaSensor will use its reasonable endeavours to deliver the Devices to the Delivery Address within 28 days of the Commencement Date.
4.2 If the Customer requests special delivery services (e.g. express post or air freight) which are not part of DermaSensor’s standard delivery services, then DermaSensor may charge the Customer additional fees for such special delivery services to the Customer.
4.3 To the full extent allowed by law, DermaSensor is not liable to the Customer for any loss or damage whatsoever (including any consequential loss) caused directly or indirectly by any delay or failure in delivery. Any delay in delivery does not relieve the Customer of its obligation to accept that delivery and any remaining delivery.
5.1 DermaSensor will provide the Services in relation to each registered Device, to the Customer during the Term.
5.2 DermaSensor reserves the right to add new features or to vary the delivery of existing features of the Services at any time, but DermaSensor will notify the Customer before any key features are removed from the Services.
5.3 As part of the Services, DermaSensor will:
- Host and maintain the Software and provide cloud-based access for the Customer to the customer administration portal;
- Use its reasonable efforts to continue to improve the Device, Software and Services, including adding or removing functionality or features; and
- Maintain reasonable security measures to protect all Data held within the Software.
5.4 DermaSensor will make all reasonable efforts to provide phone support to the Customer between the hours of 9am to 5pm Australian Eastern Standard Time Monday through Friday, with the exception of national holidays, and online support during all other times.
- TERM & RENEWALS
6.1 This Agreement will come into effect on the Commencement Date and will continue for the Minimum Term, unless terminated earlier in accordance with this clause, or renewed in accordance with clause 6.4.
6.2 DermaSensor may terminate this Agreement immediately by written notice to the other party if any of the following events occur:
- DermaSensor becomes insolvent, is placed in administration, or any other step is taken to wind-up or dissolve the party; or
- the other party commits a breach of this Agreement which, if capable of remedy, it fails to remedy within 21 days of the breach being notified to it in writing.
6.3 The Customer may terminate this Agreement at any time by providing 1 month’s written notice to DermaSensor (Early Termination Notice).
6.4 Prior to expiry of the Term, the Customer may renew this Agreement for additional periods of 1 year each (Renewal Term) by nominating such Renewal Term via the Account prior to the expiry date. DermaSensor will notify the Customer of any change in Annual Fees prior to such renewal taking effect.
- FEES & PAYMENT
7.1 The Device Purchase price and the Software and Services Fee will be automatically deducted from the Customer’s credit facility (as specified in the Account) on the date defined in the Payment Terms.
7.2 Delivery of the goods to the client will be made after receipt of payment in accordance with Paragraph 7.1 above.
7.3 At the expiry of the period of the Term selected at Key Term 5 above, a Software and Services Fee for an equivalent subsequent period to the preceding Term will commence to be automatically deducted from the Customer’s credit facility (as specified in the Account), in the manner so previously elected, unless advised differently in writing at least 30 days prior to the expiry. 60- days prior written notice will be given by DermaSensor to the Customer in the event that there are changes made to the Software and Services Fee, or adjustments made to the Services so provided.
7.4 All Fees exclude any taxes (such as GST) or duties payable in respect of the Devices and Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by DermaSensor, the Customer must pay to DermaSensor the amount of such taxes or duties in addition to any fees owed under this Agreement. DermaSensor reserves the right to include a surcharge of up to 3% of the transaction amount as a pass-through of credit-card processing fees, as permitted by local laws.
7.5 If the Customer defaults in any payment, all amounts owing by the Customer to DermaSensor on any Account shall immediately become due and payable. In such event, DermaSensor may also suspend or terminate the Customer’s Account, de-activate Devices or otherwise amend the Services as it sees fit.
7.6 In the event that the Customer breaches any provision of this Agreement, the Customer agrees to pay all reasonable costs incurred by DermaSensor in recovering any outstanding monies, including collection costs and legal fees on a full indemnity basis.
- CUSTOMER OBLIGATIONS
8.1 The Customer is responsible for its own internet connection and must use software, systems and equipment compatible with the Services, as DermaSensor specifies in its published policies and user documentation. DermaSensor is not responsible for any Customer Data or Patient Data that is lost, altered, intercepted or stored across networks not owned or operated by DermaSensor.
8.2 The Customer must not:
- make the Device or Software available to any third party;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Devices or Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access the Services in order to build or support, and/or assist a third party in building or supporting, products, software or services competitive to DermaSensor; or
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Services (including the Software and Devices) available, to any third party other than as expressly permitted under the terms of this Agreement.
9.1 The Customer retains ownership of all Customer Data and is solely responsible for the accuracy, content and legality of all Customer Data. The Customer will not submit any Customer Data:
- that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, encourages conduct that would be considered a criminal offense or gives rise to any civil liability, or that is in conflict with the terms of this Agreement;
- that includes any virus, bot, worm, scripting exploit or other harmful code that is likely to harm or corrupt any part or all of the Software, Services or any computer systems or data; or
- which infringes the rights of any third party.
9.2 DermaSensor may delete or remove any Customer Data at any time, with or without notice, if in DermaSensor’s reasonable opinion, such Customer Data does not comply with the above restrictions.
9.3 The Customer grants DermaSensor a non-exclusive, royalty-free, perpetual license to copy, distribute, perform, display, store, modify, and otherwise use the defined Customer Data in connection with providing and improving the Services.
9.4 The Customer retains ownership (or control) of all the defined Patient Data. The Customer grants DermaSensor a non-exclusive, royalty-free, perpetual licence to use the Patient Data during the Term to provide the Services, including securely storing the Patient Data on DermaSensor’s servers;
9.5 The Customer also grants DermaSensor the right to create Aggregated Data to measure general Service usage patterns, characteristics of its user base and patient user base and otherwise to improve its Services, Software and Devices. DermaSensor may include such Aggregated Data about its users in promotional materials or reports to third parties.
9.6 Aggregated Data will be owned and retained by DermaSensor. For the avoidance of doubt, DermaSensor may use Aggregated Data at its sole discretion after termination of the Agreement.
- LIMITED WARRANTIES
10.1 Each party represents and warrants that:
- it has the full power and authority to enter into and perform its obligation under this Agreement and, if the Customer is not an individual, the Customer confirms that this Agreement and each order executed by an employee or agent of the Customer has the requisite authority to bind the Customer to this Agreement or order; and
- it has not entered into any other agreement, arrangement or understanding which would restrict or prevent it from performing its obligations under this Agreement.
10.2 DermaSensor warrants that the Devices will comply in all material respects to DermaSensor’s technical specifications for 12-months from the date of purchase. Any Device that does not comply with this warranty during the Term, which is not due to damage outside of normal wear and tear, may be replaced or repaired by DermaSensor at its sole discretion.
10.3 DermaSensor does not represent, warrant or guarantee:
- that the Services, Software or Devices will be error-free or uninterrupted, or that DermaSensor will correct all Service errors in a timely manner. The Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of communication networks such as the internet, and DermaSensor will not be liable for any delays, delivery failures or other damage resulting from such problems; or
- that the Service and/or the Device have any particular clinical effectiveness or an ability to achieve any particular clinical result.
10.4 The Customer acknowledges that use of the Service and Devices requires sound medical judgment and results may vary based on operator skill and experience, patient suitability, patient response, and other factors beyond the control of DermaSensor.
10.5 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND DERMASENSOR DOES NOT PROVIDE ANY OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING FOR HARDWARE, SOFTWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.1 DermaSensor will only accept the following Devices for return and, upon the return of such Device, DermaSensor will provide the Customer with either credit or replacement Devices, as determined by DermaSensor (and subject to the terms below):
(a) Devices that are unused where packaging has been unopened, and which are returned to DermaSensor within 14 days of the Delivery Date. In this case, DermaSensor will refund the Device Purchase price and first year’s Annual Fee to the Customer, if such fee had initially been paid.
(b) Devices that are used and which are returned to DermaSensor within 30 days of an Early Termination Notice. In this case, DermaSensor may, at its discretion and following inspection of the Device, will refund the Device Purchase price less $500 and first year’s Annual Fee to the Customer. For the avoidance of doubt, no refund will be issued for Devices whose condition is beyond ordinary wear and tear (as reasonably determined by DermaSensor).
(c) Devices sent and invoiced in error by DermaSensor. If these Devices have not been used or activated, they will be collected by DermaSensor free of charge to the Customer and credit will be issued to the Customer (if payment has been made). Errors must be notified within 48 hours of delivery of the Devices.
(d) Devices which are materially damaged in transit. If DermaSensor is satisfied that the Devices were materially damaged in transit between the point of dispatch and the Delivery Address, then these Devices will be collected by DermaSensor and replaced, free of charge to the Customer. Such damage must be notified to DermaSensor within 48 hours of delivery of the Devices.
11.2 Other than as set out in clause 11.1, DermaSensor will not grant refunds or replace Devices which have:
the product has been tampered with or the assembly seal has been removed or damaged; the product has been altered or modified by someone other than Dermasensor; the warranty claim was made fraudulently or by misrepresentation; the product was not installed, operated, repaired, or maintained in accordance with Dermasensor’s instructions (for example, this warranty will not apply if the product has been used outdoors or in a wet area, or if the product has been used together with a generator, heater, sump pump, water-related device, life support device, other medical devices). To be used indoors only and in dry areas and in accordance with the Dermasensor Operators Manual. All warranties contained herein are null and void if used in any way with any of the aforementioned devices; the product has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; damage to the product is cosmetic, including scratches and dents, or defects caused by normal wear and tear or normal aging of the product; the serial number on the product has been altered, defaced, or removed; the product was used in conjunction with other extension cords, power strips, adapters, UPS’s, surge protectors, other grounding wires or electrical connections; or the product was supplied or licensed for beta, evaluation, testing or demonstration purposes, and you didn’t buy or license the product. The product is opened, dismantled, tampered (including hardware and software), or attempted to be serviced.
11.3 Customers requesting repair or replacement to damaged Devices subject to the conditions defined in 11.2 may be required to pay for labour and materials related to the repair or replacement of a Device at DermaSensors discretion. Customers may be requested to provide transportation to DermaSensor at the Customer’s expense for the evaluation of the condition of a Device prior to commencing any repair or replacement. Unless devices are found to be covered by any warranty which includes transportation, return transportation of Devices to the Customer will be paid for by the Customer.
- OWNERSHIP AND RISK
12.1 DermaSensor will retain all right, title and interest in and to the Software and the Services delivered to the Customer during the Term, and the Customer acknowledges that right.
12.2 The risk in the Devices shall pass to the Customer upon delivery and the Customer should ensure they insure the Devices from the Delivery Date.
- LIMITATION OF LIABILITY
13.1 Notwithstanding anything to the contrary in this Agreement, to the extent that the Customer acquires Services, Software or Devices from DermaSensor as a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) as amended or replaced from time to time, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. Nothing in this clause 13 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(a) contravene that statute; or
(b) cause any term of these Terms and Conditions to be void.
13.2 Except in relation to the Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute that impose any liability on DermaSensor, are expressly excluded under the Contract.
13.3 Except in relation to Non-excludable Obligations, and subject to the terms of this Agreement, DermaSensor’s liability to the Customer (and any party claiming through the Customer against DermaSensor) for any claim for loss or damages (including legal expenses) made in connection with the supply of Services by DermaSensor, and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, is limited as follows:
(a) DermaSensor will have no liability whatsoever to the Customer for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage, loss of contract, loss of customers, loss of business opportunity or business, loss of goodwill or reputation, loss of value of intellectual property, loss or damage resulting from the loss or damage to goods other than the Goods or loss of data); and
(b) the aggregate of DermaSensor’s liability to the Customer in respect of any Order is otherwise limited to an amount not exceeding the Device Purchase and Fees paid by the Customer under this Agreement in the 12 months prior to the claim being notified to DermaSensor.
13.4 In relation to the Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which DermaSensor’s liability is not limited under this Agreement), DermaSensor’s liability to the Customer for a failure to comply with any Non-excludable Obligation is limited to the cost of replacing the Services, supplying equivalent Service, or payment of the cost of replacing the Service or supplying equivalent Services.
13.5 Unless the claim is by a consumer within the Australian Consumer Law, any claim by the Customer in respect of defective Devices or damaged Devices must be made in writing within 48 hours of the delivery of the Devices, unless a longer period is expressly agreed to by DermaSensor in writing.
14.1 The Customer shall comply with all applicable Federal, State and Territory laws in effect, including, without limitation, all relevant anti-bribery and corruption laws and regulations as applicable in the jurisdiction in which the Customer operates.
14.2 This Agreement (including its schedules) may only be altered in writing signed by each party.
14.3 Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from this agreement and the remaining provisions of this agreement shall continue in force.
14.4 DermaSensor’s failure at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this agreement.
14.5 This agreement is governed by the law of Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.