ecgme User Agreement
ecgme User Agreement
TERMS AND CONDITIONS
Effective Date: 19th August 2023
Welcome to ECGme (hereinafter 'Product’). The Product is to record, display, store, and transmit electrocardiograms.
The Items are operated by Biosignals Diagnostics Pty Ltd (ACN 642 479 874). Access to and use of any of the Items, is provided by Us in accordance with these Terms. You should read these Terms carefully in full.
By using, browsing, reading and in any other manner engaging with the Product, this signifies that You have read, understood and agree to be bound by these Terms. If You do not understand the Terms, if You do not agree to be bound by the Terms, or if You need more time to review and consider the Terms, You must cease usage of the Product, and/or any of its Services, immediately.
We reserve the right to review and change any of the Terms by updating this page at Our sole discretion. Any changes to the Terms take immediate effect from the date of their publication. Before You continue, we recommend you keep a copy of the Terms for your records.
"App" means the mobile application called "ecgme" including all pages, all sub-pages, all blogs, all forums, and all other connected internet content whatsoever.
"Australian Consumer Law" means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth).
"Company IP" includes, but is not limited to, the contents, layout, design, colours, appearance, graphics and imagery of the Product, Content and Materials as well as all copyrights, trademarks, trade secrets, patents and other intellectual property contained in the Product, Content and Materials.
"Content" means any content, writing, images, audio-visual content or other information published on the Product.
"Contract" means this agreement.
"Dispute" means any dispute, controversy or claim arising out of or in relation to these Terms, including any dispute, controversy or claim relating to the existence, validity or termination of these Terms.
"Effective Date" means the date that these Terms come into force.
"Identifying Information" means information provided by You when registering to use the Items, including but not limited to Your name and email address, a user name and a password.
"Items" means any and all of the Product, Services, Content and Materials collectively.
"Materials" means any materials, information or documentation that We may provide to You in connection with Your use of the Services or Product including documentation, data, information developed by Us or owned by Us, and other materials which may assist in Your use of Services or Product.
"Parties" means both You (the user of the Product) and Us (the owner of the Product) collectively.
"Product" means the handheld device called "ecgme" and its on-body adaptor and accessories including the App.
"Services" means any or all services provided by or on the Product and for the avoidance of doubt includes functions of the Product.
"Terms" means these terms and conditions as amended from time to time.
"Third Party Goods and Services" means Goods and/or Services sold by third parties via the Product or via Third Party Links.
"Third Party Links" means links or references to websites or applications other than the Product, to content other than the Content or to materials other than the Materials, none of which are controlled by Us.
"Us", "We", "Our", "the Company" or "the Owner" refers to Biosignals Diagnostics Pty Ltd.
"Us", "We", "Our", "the Company" or "the Owner" also includes any employees, affiliates, agents or other representatives of Biosignals Diagnostics Pty Ltd.
"You" or "Your" refers to the user of the Product.
"Your Content" means any Content posted to or added to the Product, Content or Materials by You or by somebody authorised by You or doing so on Your behalf, including without limitation ideas, concepts or suggested improvements.
a. In these Terms, unless the context otherwise requires, the following rules of interpretation shall apply:
I. Words referring to one gender include every other gender.
II. Words referring to a singular number include the plural, and words referring to a plural include the singular.
III. Words referring to a person or persons includes companies, firms, corporations, organisations and vice versa.
IV. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
V. Headings are for convenience only and do not affect interpretation.
VI. References to any law or statute includes that law or statute as amended from time to time.
VII. Including and similar expressions are not words of limitation.
VIII. These Terms will not be interpreted against Us because We caused the preparation of these Terms.
3. YOUR AGREEMENT AND REPRESENTATIONS
a. By using and continuing to use any of the Items, You warrant and acknowledge that You have reviewed and considered the Terms, that You understand the Terms and that You agree to be bound by the Terms. If You do not understand or do not agree to be bound by the Terms, then you must stop using any of the Items immediately. We only agree to provide You with access to and use of the Items if You agree to these Terms.
b. By using and continuing to use any of the Items, You represent and warrant to Us that You have legal capacity to enter into and agree to be bound by these Terms.
c. By continuing to use any of the Items, You represent and warrant to Us that You have complied with all of these Terms.
d. By continuing to use any of the Items, you represent and warrant to Us that these Terms are legally binding upon You.
4. AGE RESTRICTION
a. In order to use any of the Items, You must be aged at least 18 years of age.
b. By using any of the Items, You represent and warrant to Us that You are aged at least 18 years.
c. We accept no responsibility or liability for any misrepresentation by You of Your age and, to the extent permitted by applicable law, you release Us in respect of any liability that may arise in respect of such misrepresentation.
5. LICENCE TO USE PRODUCT, CONTENT AND MATERIALS
a. We may provide You with certain other Items in connection with Your use of the Product.
b. Subject to these Terms, We grant You a licence to use the Product, Content and Materials solely in connection with Your use of the Items. The licence created under these Terms is non-exclusive, limited, non-transferable and revocable.
c. You may not use the Product, Content or Materials for any purpose other than in accordance with the licence that is provided under this clause and these Terms generally, and this licence to use any of the Items terminates upon Your cessation of use of the Items or upon termination of this Contract as set out in clause 12.
d. If You upload User Content you grant us a non-exclusive, royalty-free licence to use, modify, adapt, publish and exploit the User Content without reference to You. You warrant that You have all rights and permissions necessary to provide, upload and grant licence to the User Content to Us and You agree to indemnify Us, to the maximum extent permitted by law, if any third party takes action against Us in relation to the User Content that You provide.
a. Any consultation or review in connection with the information You provide Us (including as requested by You via functions in the Product) is NOT for a medical emergency. Please call Your medical emergency number or go to Your nearest hospital if You need medical care.
b. A consultation or review conducted using the Items (including specific features of the Product) is to complement Your general healthcare and You must not rely on such consultation or review for your primary healthcare.
c. A consultation or review conducted using the Items (including specific features of the Product) have limitations compared to an in person consultation, which includes the ability for Your doctor or other qualified healthcare provider to examine You, take Your clinical history and order appropriate tests. Accordingly, You acknowledge that a consultation or review conducted using the Items is limited and does not replace an in person attendance by You upon Your doctor or other qualified healthcare provider.
d. You agree to seek and not disregard the advice of Your doctor or other qualified healthcare provider regarding medical conditions.
c. We do not assume, and expressly disclaim, any obligation to obtain and include any information other than as contained in the Items. You represent and warrant to Us that the information You provide Us is true, complete and accurate and is not misleading whether by inclusion or omission.
d. To the maximum extent permitted by law, We exclude all warranties, representations, implied terms and guarantees about the currency, accuracy, suitability, functionality, fitness for any purpose or reliability of any of the Items. To the extent We have liability to You, such liability is limited to the amount paid by You during Your use of the Items.
7. SALE OF GOODS/SERVICES
a. We may sell Services or may allow third parties to sell Services on the Product. If this occurs, then some specific exclusions of liability will apply, as described in the "Exclusion of Liability" clause.
a. Where the option is given to You, You may make payment for the Services by way of:
I. Credit Card Payment
b. All payments made in the course of Your use of the Services are made via Stripe or Shopify. In using the Product, the Services or when making any payment in relation to Your use of the Services, You warrant that you have read, understood and agree to be bound by their terms and conditions, which are available at:
c. You acknowledge and agree that, where a request for the payment of the Services is returned or denied, for whatever reason, by Your financial institution or is unpaid by You for any other reason, then You are liable to Us for any costs, including banking fees and charges, associated with the Services.
d. You agree and acknowledge that We can vary the Services fee at any time.
9. REFUND POLICY
We will only provide You with a refund for payment You make in the event We make a decision, at Our absolute discretion, that it is reasonable to provide You a refund under the circumstances.
10. EXCLUSION OF LIABILITY
a. The Product, Content and Materials are provided for general information only and may change at any time without prior notice.
b. You accept and acknowledge that the Items may contain mistakes, errors and inaccuracies.
c. Your use of the Product, Services, Content and Materials is entirely at Your risk. It is Your responsibility to make sure that any Goods, Services, Materials, Content or other information available through the Product suits Your particular purpose.
d. Neither We, nor any third parties, provide any guarantees or warranties regarding the accuracy, completeness, performance, reliability, timeliness, quality, merchantability, safety, legality or suitability for a particular purpose of the Items.
e. To the maximum extent permitted by law, We hereby expressly exclude all warranties, guarantees, representations or terms (whether express or implied) except for those expressly set out in these Terms.
f. To the maximum extent permitted by law, We hereby expressly exclude any liability in relation to the accuracy, completeness, performance, reliability, timeliness, quality, merchantability, safety, legality or suitability for a particular purpose of the Items.
g. To the maximum extent permitted by law, We hereby expressly exclude any liability in relation to loss of data, interruption to Your business or any damages which are incidental to or arise from such loss of data or interruption to business.
h. To the maximum extent permitted by law, We will not be liable for any damage, loss, cost or expense including legal costs and expenses, whether direct or indirect, incurred by You in connection with Your use of the Items. You agree that, to the extent that We are liable to you for any damage, loss, cost or expense, such liability is limited to the amount You have paid Us for use of the Items.
i. The Product, Content and Materials are provided on an “as is” and “as available” basis, without warranty or condition of any kind, either express or implied. We do not warrant that the functions contained in the Items will meet your requirements, be fit for purpose, or that the operations of the Items will be secure, uninterrupted and free from errors, bugs or viruses. We expressly disclaim all warranties of any kind, whether express or implied.
j. Except as required under applicable law, in no event shall We be liable to You for damages of any kind (whether direct or indirectly) arising out of or relating to your access to any of the Items.
k. The Product may contain Third Party Links. For Goods and/or Services sold by third parties via the Product or via Third Party Links (hereinafter "Third Party Goods and Services"):
I. You acknowledge and agree that We have no control over those Third Party Goods and Services and that You purchase such Third Party Goods and Services at Your own risk.
II. You acknowledge and agree that We assume no liability and provide no warranties or guarantees regarding the accuracy, completeness, performance, reliability, timeliness, quality, merchantability, safety, legality or suitability for a particular purpose of Third Party Goods and Services.
III. For any claim You may have against the third party provider of the Third Party Goods and Services (such as the manufacturer or vendor) You agree to pursue that claim directly with that third party provider of the Third Party Goods and Services and not with Us.
IV. To the maximum extent permitted by law, You hereby release Us from any claim related to Third Party Goods and Services including any and all warranty and product liability claims.
11. NO PROFESSIONAL ADVICE
a. Except where otherwise expressly stated, the information provided to You through the Items is for information purposes only. It does not address Your specific circumstances. It is not professional advice.
b. You acknowledge and agree that any information provided on or through the Items is not professional advice and that You should seek Your own professional advice in respect of such information.
c. You acknowledge and agree that Your use of any of the Items is at Your own risk. We do not assume responsibility or liability for any information provided through the Product or other Items.
d. You acknowledge and agree that it is Your responsibility to evaluate all information that is provided through the Product or other Items in consultation with Your own professional adviser or advisers as appropriate.
e. You acknowledge and agree that Your use of the Product does not create a fiduciary relationship between Us and You.
f. You acknowledge and agree that a fiduciary relationship may only be created between You and Your professional adviser after You have a direct consultation with Your professional adviser.
You hereby indemnify Us (which, for the sake of clarity, also includes any of Our employees, affiliates, agents or other representatives) and You agree to defend Us and to hold Us harmless in relation to any and all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) which may arise from or relate to Your use or misuse of any of the Items. You agree that We may select Our own legal representation and may participate in Our own legal proceedings if We choose.
a. We may immediately terminate these Terms at any time, with or without cause.
b. We specifically reserve the right to terminate these Terms if You breach these Terms in any way.
c. These Terms terminate automatically if we cease to operate the Product for any reason.
d. If You have registered for an account with Us, You may terminate these Terms at any time by contacting Us and requesting termination.
e. At the termination of these Terms, any provisions which would by their nature be expected to survive termination shall remain in full force and effect, including but not limited to Our exclusions of liability as outlined in the "Exclusions of Liability" clause.
f. Upon termination of these Terms, You acknowledge and agree that You will not access any of the Items and indemnify Us in respect of Your access of any of the Items after termination of these Terms.
14. OTHER ACTION
a. We reserve the right to take any of the following actions in Our sole discretion:
I. Monitor, review, edit or delete any User Content which You have added, uploaded, posted to or in any other way made available on the Product or through the other Items, whether or not You have breached these Terms.
II. Record any correspondence that occurs in public sections of the Product.
III. Review any allegations about breaches of these Terms, and determine in Our sole discretion whether to take any action in response to those alleged breaches, including removal of any Content in relation to those alleged breaches.
IV. Determine in Our sole discretion whether to terminate Your or another Product user's access to any particular section or sections of the Product or other Items.
15. ACCEPTABLE USE
a. You agree not to use any of the Items for any unlawful purpose or any purpose prohibited under this clause or these Terms. You agree not to use the Items in any way that could damage the Product, the Items, or Our general business.
b. You further agree not to use the Product or the Items:
I. to harass, abuse, or threaten any other person or to otherwise violate any other person's legal rights;
II. to violate any intellectual property rights of Us or of any third party;
III. to upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
IV. to commit any kind of fraud;
V. to engage in or create any unlawful gambling, sweepstakes or pyramid schemes;
VI. to publish or distribute any obscene or defamatory material;
VII. to publish or distribute any material that incites violence, hatred or discrimination towards any person, group or community;
VIII. to unlawfully gather information about others.
c. Unauthorised use by You of the Items may be a criminal offence and may give rise to a claim for damages.
d. You are prohibited from using the Items for the purpose of gathering email addresses and/or personal information from people, companies or other organisations and/or for sending bulk emails or unsolicited emails.
e. If you post any User Content, We have the right to take it down or modify it at Our sole discretion without notice to You.
16. VARIATION OF TERMS
a. You hereby acknowledge and agree that these Terms may be varied or amended by Us from time to time in Our sole discretion. If You continue to use the Product following any such variation or amendment, You will be deemed to have confirmed and agreed to the new Terms as varied or amended.
b. You agree to routinely monitor these Terms and to refer to the Effective Date posted at the top of these Terms in order to monitor any modifications or variations. You further agree to clear Your cache when doing so in order to avoid accessing a prior version of these Terms.
c. In the event that You fail to monitor any modifications to or variations of these Terms, You agree that such failure shall be considered an affirmative waiver of Your right to review the modified or varied Terms.
17. THIRD PARTY LINKS
a. You hereby acknowledge that We may from time to time include links or references to other websites, other content or other materials (hereinafter "Third Party Links"), none of which are controlled by Us.
b. You hereby acknowledge that these Third Party Links are provided for Your information only and that We do not make any representations, warranties or guarantees as to the accuracy, completeness, performance, reliability, timeliness, quality or suitability for a particular purpose of these Third Party Links. We do not endorse, approve or support these Third Party Links. You use the Third Party Links at Your own risk.
18. CHANGES TO PRODUCT
a. You acknowledge and agree that We may, in Our sole discretion, vary, alter, amend, change or update any of the Items at any time.
b. You acknowledge, agree and accept some or all of the Items may be unavailable from time to time (whether it is unavailable due to maintenance or for any other reason).
c. You acknowledge, agree and accept that We take no responsibility for, and to the maximum extent permitted by law we shall not be liable in any way for, the Items being unavailable, whether due to reasons within our control or not.
19. INTELLECTUAL PROPERTY
a. The Items contain Company IP that is owned by Us and/or that is licensed to Us.
b. You hereby acknowledge and agree that We own and/or license all intellectual property rights (including Company IP) in the Items and that nothing in these Terms amounts to a transfer of any intellectual property rights from Us to You.
c. You hereby acknowledge and agree not to use the Company IP for any unlawful or infringing purpose.
d. You hereby acknowledge and agree not to reproduce or distribute the Company IP in any way, including electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs) without express written permission from Us.
e. You agree not to adapt, transmit or commercially exploit any Company IP or any other intellectual property rights in the Items (whether registered or otherwise).
f. You agree to do all things reasonably requested by Us of You for the purposes of Us monitoring Your compliance with this clause. You further agree to advise Us immediately if You become aware of a potential infringement of Company IP.
g. All of the provisions of this clause in relation to "Intellectual property" shall survive any termination of these Terms.
20. USER REGISTRATION
a. You will be asked to register with Us in order to use or access the Items.
b. If You register with Us, You may be asked to provide personal details such as Your name and email address, as well as choosing a user name and a password ("Identifying Information"). This Identifying Information will allow You to access the Items.
c. You acknowledge that You are responsible for ensuring the accuracy of any Identifying Information You provide as part of the registration process.
d. You agree that You will not share your Identifying Information with any third party and if You discover that Your Identifying Information has been compromised, You agree to notify Us immediately in writing.
e. You acknowledge that You are responsible for maintaining the safety and security of Your Identifying Information as well as keeping Us informed of any changes to Your Identifying Information.
f. You acknowledge that providing false or misleading information, or using the Items to further fraud or unlawful activity is grounds for immediate termination of these Terms.
g. You acknowledge that You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorisation, or a name that is otherwise offensive, vulgar or obscene.
a. Through Your use of the Product or other Items, You may provide Us with some of Your personal information. By using the Product or Items, You authorise Us to use Your information in Australia and any other country where We operate.
b. We take Our privacy obligations very seriously.
22. REVERSE ENGINEERING AND SECURITY
You agree not to:
a. reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on the Items; and
b. violate the security of the Items through any unauthorised access, circumvention of encryption or other security tools, data mining or interference with any host, user or network.
You assign all rights, title and interest in any feedback You provide Us. If for any reason such assignment is ineffective, You agree to grant Us a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such feedback without restriction.
You acknowledge that you consent to Our engagement of third parties (including Our affiliates and medical professionals or equivalent practice) to perform, or support the performance of, all or any portion of the Service.
25. DISPUTE RESOLUTION
If a dispute arises out of or relates to the Terms, neither You nor We may commence any proceedings in relation to the dispute, unless this clause 25 has been complied with in full. This clause 25a does not apply where urgent interlocutory relief is sought.
A Party to the Terms claiming a dispute ('Dispute’) has arisen under the Terms, must give written notice to the other Party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice under clause 25b (’Notice') by that other Party, the Parties to the Terms must:
I. Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
II. If for any reason whatsoever, 60 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of Victoria in Australia or his or her nominee;
III. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
IV. The mediation will be held in the State of Victoria, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
e. Termination of Mediation
If 180 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
26. VENUE AND JURISDICTION
The Services offered by Us are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Product, You agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.
27. INDEPENDENT LEGAL ADVICE
Both Parties confirm and declare that the provisions of the Terms are fair and reasonable and both Parties have had the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any clause or sub-clause of these Terms is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances, the remainder of these Terms shall continue in full force and effect.
29. GENERAL PROVISIONS
a. Australian Consumer Law: You may have certain rights, warranties, guarantees and remedies under the Australian Consumer Law, which is contained in the Competition and Consumer Act 2010 (Cth), and these rights, warranties, guarantees and remedies may not be restricted, modified or excluded by Us. Our liability to you is governed solely by these Terms and the Australian Consumer Law.
b. Applicable law: Your use of the Product and the Items is subject to the laws of Victoria, Australia and each party submits to the jurisdiction of the courts of Victoria, Australia.
c. Written communication: In relation to any correspondence or notification which is required under these Terms to be provided in writing from one Party to the other Party:
I. such notice is properly given if given to the other Party:
A. by email to an email address that the other Party has nominated, acknowledged or used in connection with the use of the Product or other Items.
B. by post to a postal address the other party has nominated, acknowledged or used in connection with the use of the Product or other Items.
II. such notice is taken to be received:
A. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
B. if sent by prepaid post within Australia, five (5) days after the date of posting.
C. if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.
The contact details for Us are set out in clause 30.
d. No assignment: You must not assign, sub-licence or otherwise deal in any way with your rights under these Terms without Our prior written consent.
f. No waiver: In the event that We fail to enforce any provision of these Terms, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any clause or sub-clause of these Terms will not constitute a waiver of any other clause or sub-clause.
h. Parties must take all reasonable steps: Each party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to these Terms and the events contemplated by them.
i. Separate agreements: You may have other legal agreements with Us. Those other legal agreements are separate from and are in addition to these Terms. These Terms do not alter, amend, revise or replace the terms of any other legal agreements You may have with Us.
30. CONTACT US
You can contact us about these Terms using the following details:
Phone: +61 1300 463 246
Address: Level 1, 127 Market Street, South Melbourne VIC 3205