PainChek Terms of Service – 05/05/2021

1. Background

(a) PainChek Limited ABN 21 146 035 127 (PainChek, we, our, us) owns, operates and licenses access to systems (PainChek Platform) and a mobile application (PainChek Application) through which it provides pain assessment services as described in this agreement (Services).

(b) The PainChek Platform and the PainChek Application seek to improve a patient’s quality of life by providing real-time, point of care diagnostic information using facial recognition technology and other subjective measures that indicate the presence of pain.

(c) The terms of this agreement (Service Terms) govern the Services offered by PainChek to you as a healthcare provider (Provider) located in Australia (you, your).

2. Overview of Services

2.1 As part of the Services, PainChek offers:

(a) access to the PainChek Application;

(b) use of the PainChek Platform, in conjunction with the PainChek Application, to provide healthcare practitioners with diagnostic information;

(c) an agreed number of sessions of appropriate PainChek Application Training;

(d) PainChek E-learning Platform;

(e) PainChek Software Updates and Backend Support; and

(f) PainChek Application Expansion.

2.2 The scope and features of the Services (including part of the payment terms) are set out in the Schedule.

3. Subscribing to the Services

3.1 When you first sign-up to receive the Services, a new user account will be created by PainChek (Your Account). After the creation of Your Account, you as a Provider, can use Your Account to access and manage the Services you have subscribed to and set up users of Your Account in accordance with these Service Terms (Your Subscription).

3.2 Your Subscription will commence on the Go-Live Date.

4. Your Account

4.1 You must keep confidential Your Account and password and are responsible for all activities that occur under Your Account.

4.2 In accordance with the scope and features of the Services set out in the Schedule and clause 7:

(a) if you alter or upgrade Your Subscription, you may be required to pay additional Fees; and

(b) if you cancel Your Subscription, you may not receive any refund in respect of Fees you have paid in advance for that Service.

5. Subscription Periods

5.1 Subject to any automatic renewal under clause 6.1, or cancellation or termination in accordance with these Service Terms, Your Subscription commences on the Go-Live Date and ends on the 12 month anniversary of that date (the Subscription Period).

6. Term and Termination

6.1 We will remind you that a Subscription Period is due to expire for the Services at least 60 days before it is scheduled to do so. Provided we have done so, your Subscription for the Services will automatically renew for a further Subscription Period of 12 months at the scheduled end date of the Subscription Period unless you disable automatic renewal for the Services in Your Account, or notify us in writing that you do not wish to renew Your Subscription, before the then current Subscription Period for the Services is due to expire.

6.2 PainChek may suspend Your Subscription to the Services at any time if Fees are unpaid for the Services more than 5 Business Days after their due date. Any suspension under this clause that lasts more than 14 days will amount to a material breach by you of the Service Terms for the purpose of clause 6.3.

6.3 Either party may terminate Your Subscription to the Services by written notice at any time by 30 days’ written notice if the other party materially breaches the Service Terms (and does not remedy that breach, if capable of remedy, within 14 days of written notice to do so), becomes insolvent or appoints an administrator or similar.

6.4 If you terminate Your Subscription to the Services as permitted under the Service Terms, then, subject to the scope and features of the Services set out in the Schedule and to clause 4.2, you are entitled to a refund of a portion of Fees paid for Services to be provided in the remainder of the Subscription Period. You are not otherwise entitled to a refund for any Fees.

6.5 Promptly following the termination or expiry of Your Subscription to the Services, PainChek will make available for you to download a copy of all data which you have uploaded to the PainChek Platform in the possession or control of PainChek excluding, for clarification, Aggregated Data.

6.6 Downloading data under clause 6.5 will be at no charge if you utilise the open PainChek API to do so; otherwise, you must pay PainChek’s charges to download the data. Such charges will be reasonable, having regard to the format you require for the data and your other requirements.

6.7 PainChek will retain confidential data for 2 months following contract termination to facilitate data download. Following this period, data will be deidentified. This data will be deidentified at Your request prior to 2 months following contract termination.

7. Fees

7.1 The Fees will be charged and are payable by you for the Services in accordance with this clause 7 and the Pricing Schedule of your PainChek Federal Grant Registration Form.

7.2 Subject to the terms listed in your PainChek Registration Form, as part of the Fees, you must reimburse PainChek travel costs (including but not limited to flights, accommodation, car hire, fuel and meals) incurred by it in providing the Services to you, such costs to be on charged at cost (receipts provided on request).

7.3 All Fees exclude taxes, levies or duties imposed by the tax authorities. You are liable for any GST payable in relation to the Services and must pay it at the applicable rate at the same time that you make any payment to PainChek for Services, subject to the receipt of a valid tax invoice from us.

7.4 If we discover an error in the price of the Services which you have ordered, we will inform you as soon as possible and allow you to reconfirm your order at the correct price or cancel it.

7.5 Unless as otherwise agreed by the parties in writing, any Fees that are charged on an annual basis (i.e. ‘per annum’) for the Services must be paid in advance at the outset of a Subscription Period for the upcoming year and on each anniversary of that date thereafter until Your Subscription is cancelled or terminated in accordance with the Service Terms.

7.6 All Fees must be paid by you within 10 Business Days after you receive an invoice detailing Your Subscription for these Services.

8. Changes to Fees

8.1 We may change the Fees for the Services at any time by:

(a) updating these Service Terms; and

(b) supplying you with a Change Notice in accordance with clause 9.1.

8.2 Any change to the Fees for the Services will not take effect until after the 30 day period and opportunity for you to terminate referred to in clause 9.2 has passed.

9. Changes to the Service Terms

9.1 PainChek may change these Service Terms at any time (Change Notice), and will provide written notice to you by email using to the contact details in clause 14.2.

9.2 If a change to these Service Terms will have an adverse effect on you, or you do not accept it, then you may terminate Your Subscription for the Services within 30 days of the date of the Change Notice and receive a refund of any Fees you paid in relation to the remainder of the Subscription Period. If you do not cancel Your Subscription for any affected Service within that period you will be deemed to have accepted the new Service Terms.

10. PainChek Platform Use

10.1 Your use of the PainChek Platform takes place through a non-exclusive and non-transferable licence to access and use the PainChek Platform we grant to you for the sole purpose of supplying the Services to you in accordance with these terms. In exchange for the grant of this licence and our supply of Services, you agree to pay the Fees applicable to Your Subscription for the Services promptly and on time.

10.2 You must, and agree to, in relation to your use of the PainChek Platform:

(a) comply with any restrictions notified by PainChek from time to time, including reasonable requirements in relation to security and data protection;

(b) comply with any terms of use for the Services which may be accessed on the PainChek Website, as amended from time to time;

(c) not:

(i) attempt to disrupt the normal operation of the PainChek Platform, or any infrastructure operated by, or other business activities of, PainChek;

(ii) attempt to gain unauthorised access to any aspects of the PainChek Platform;

(iii) make any automated use of the PainChek Platform, other than in connection with linking the PainChek Platform to a website operated or controlled by you in accordance with these Service Terms, without the prior written consent of PainChek;

(iv) impersonate any other person in using the PainChek Platform;

(v) reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the PainChek Platform except to the extent permitted by the Copyright Act 1968 (Cth) which may not be excluded by agreement; or

(vi) use the PainChek Platform in connection with the actual or attempted contravention of any applicable Laws;

(d) comply at your own expense with all reasonable directions of PainChek to establish and/or maintain access for you to the PainChek Platform and Services, assisting PainChek to negotiate and carry out any necessary adaptations to, or integration of, the PainChek Platform and any existing application or software used by you; and

(e) only use supported devices, operating systems and/or browsers to access the PainChek Platform and the PainChek Application.

11. Information and Intellectual Property

11.1 If either party receives any Confidential Information from the other, the receiving party must only use the other’s Confidential Information in a limited way to perform its respective obligations or exercise its respective rights under these Service Terms.

11.2 Each party must keep the other’s Confidential Information secret and safe, treat it as its own confidential information and return it to the other party within a reasonable time after Your Subscription to all Services which use such information has been cancelled or terminated in accordance with these Service Terms.

11.3 The obligations in clauses 11.1 and 11.2 do not:

(a) apply to Confidential Information that is:

(i) in the public domain otherwise than as a result of a breach of these Service Terms or another obligation of confidence;

(ii) independently developed by the recipient; or

(iii) already known by the recipient independently of its interaction with the other party and free of any obligation of confidence; or

(b) prevent PainChek from including your Confidential Information in any report requested by a Government Agency, provided that to the extent permitted, PainChek gives you prior notice and consults with you as to any reasonable effort to object to the inclusion.

11.4 Each party must comply with its obligations (if any) under the Privacy Legislation to the extent relevant to these Service Terms, and will promptly notify the other if it becomes aware of, or has reasonable grounds to suspect or believe that, an eligible data breach (as defined in the Privacy Legislation) has occurred with respect to personal information dealt with under these Service Terms, following which the parties agree to cooperate in good faith to take all reasonable steps necessary to comply with their relevant statutory obligations in a manner that is timely and most appropriate in the given circumstances.

11.5 The Services, the PainChek Application, the PainChek Platform and all materials we provide to you are and remain the intellectual property of PainChek and all rights not expressly granted to you under these Service Terms are expressly reserved to PainChek. PainChek may store, access, modify, disclose and otherwise use the Aggregated Data for any purpose, and you agree to obtain all necessary consents to facilitate the same.

11.6 During the Government Trial Period, PainChek may request data, which you must provide within a reasonable timeframe of a request (unless otherwise agreed, not to exceed 10 Business Days), including anonymised data regarding the number of Provider Residents who have a diagnosis of Dementia and/or cognitive impairment.

11.7 Neither party may issue any media release, promotional material or publicity in connection with its relationship with the other party, or otherwise refer to the other party or any trade mark of the other party without the prior written approval of the other party, not to be unreasonably withheld.

12. Liability

12.1 All implied warranties and guarantees are excluded to the extent permitted by law. If PainChek breaches any warranty or guarantee that is implied by law and which is not capable of being excluded, PainChek’s liability for breach of the warranty or guarantee will be limited to, at PainChek’s discretion:

(a) resupply of the relevant non-conforming Services;

(b) paying the cost of such resupply; or

(c) refunding to you the Fees paid for the relevant non-conforming Services.

12.2 Subject to clause 12.1, to the extent permitted by law, it is agreed that:

(a) the total aggregate liability of each party to the other for any claims arising out of or related to these Service Terms, regardless of the form of the action, will be limited to, in respect of all claims:

(i) arising during or in respect of the Funded Trial Period $2500; and

(ii) arising during or in respect of any period other than the Funded Trial Period, the amount of the Fees you have paid for the Services; and

(b) neither party will under any circumstances be liable to the other for any indirect, consequential or punitive damages or any loss of profit, revenue, data, or goodwill or business interruption. Nothing in this clause precludes the recovery of loss or damage which may fairly and reasonably be considered to arise naturally, in the usual course of things, from the breach or other act or omission giving rise to the relevant liability, up to the liability cap referred to in clause 12.2(a).

12.3 You acknowledge and agree that:

(a) errors in the information on the PainChek Platform and PainChek Application may occur;

(b) information provided by the Services does not comprise medical advice;

(c) the accuracy and usefulness of that information are dependent on the skills of the user of the Services and the data they input to the Services; and

(d) the Services are not a substitute for independent professional care in the treatment of medical conditions.

13. General

13.1 These Service Terms are governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

13.2 If any provision of these Service Terms is held to be invalid, illegal or unenforceable, these Service Terms will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.

13.3 PainChek may engage one or more subcontractors to provide some or all the Services provided that it remains liable to you as if such subcontracting arrangement was not in place, and provided that:

(a) each proposed subcontractor is subject to confidentiality and data security obligations substantially the same as or more stringent than those in these Service Terms; or

(b) you consent to the proposed subcontractor after reviewing the subcontracting arrangement.

13.4 No party may assign any right under these Service Terms without the prior written consent of the other party.

13.5 PainChek may send notices and other communications regarding Your Account, Your Subscription to the Services or other matters to you via the email contact details in clause 14.2.

13.6 The parties agree that these Service Terms may be executed by electronic means and delivered by electronic communications as defined in the Electronic Transactions Act 1999 (Cth) and its state based equivalents. It is the intention of the parties that these Service Terms being so executed is valid and binding as it would be if signed by ‘wet ink signatures’.

13.7 These Service Terms may be executed in any number of counterparts (including electronically). Each counterpart once executed is deemed to be an original and all counterparts taken together constitute the one document.

13.8 The termination or expiry of these Service Terms does not affect rights, liabilities or obligations that have accrued prior to the same or the operation of any clause which as a matter of interpretation is intended to survive.

14. Contact

14.1 If you have any queries regarding these Service Terms, please contact us at [email protected]

15. Definitions

15.1 The following definitions apply in this document (unless context requires otherwise):

Schedule – Services and Payment Schedule

The scope and features of the Services (including part of the payment terms) are as follows:

SERVICES

(a) Access to PainChek Application and Use of PainChek Platform:

• Unless otherwise agreed by parties, access to the PainChek Application and use of the PainChek Platform for up to the number of Approved Places listed on your PainChek Registration Form.
• Access to the PainChek Application, running on supported devices, owned by you. The PainChek Application allows for patient management, including creating and updating Patient records and preforming and reviewing pain assessments.
• Access to the PainChek Web Admin Portal (part of the PainChek Platform) that allows for user management, device management and reporting.

(b) PainChek Training Package:

• Training sessions (as per the number listed on your PainChek Registration Form) provided for participants as nominated by you to PainChek in writing (up to a maximum of 20 participants per session).
• The training provides an overview of:
  • pain associated behaviour and assessments in people with dementia; and
  • the PainChek Platform and hands-on training using your supported iOS and Android devices.
• In the event you need to cancel or reschedule a training event within 48 hours of the scheduled date, a training cancellation fee of $500 + GST will apply.

(c) PainChek E-learning Platform

• The PainChek e-learning platform is available as the following packages:
• An online e-learning platform hosted by PainChek on the PainChek website; and
• A SCORM package that can be provided on request.
• If you choose to use either e-learning package, it is your responsibility to ensure compatibility for proper use. If you require customisation of either e-learning packages, these will be costed separately subject to agreement by both Parties.
• The PainChek e-learning content will be updated from time-to-time, as required at the sole discretion of PainChek, to improve functionality and/or learning outcomes. This process is the sole responsibility of PainChek.

(d) PainChek Software Updates and Backend Support:

• The PainChek Application will be updated from time to time, as required at the sole discretion of PainChek.
• The updates may be downloaded via the Apple App Store, or by other means as directed by us, and installed on your devices. It is your responsibility to perform the device updates, but we will provide remote support to assist you with the process. Not updating when the updates are available may impact on the functionality and overall use of the PainChek Application.
• The PainChek Platform (backend) will be updated from time-to-time, as required at the sole discretion of PainChek, to improve functionality and/or to address performance, security or functionality issues. This process is the sole responsibility of PainChek.

(e) PainChek Application Expansion:

• If at any time, we notice that the number of Active Patients on Your Account exceeds the total number of Active Patients agreed under Your Subscription, we will notify you of this and expand the number of Active Patients for an additional cost to be negotiated at the time of expansion.
• Please note that the PainChek Platform and the PainChek Application do not limit the number of Active Patients allowed on the system. It is the sole responsibility of you to manage the number of Active Patients on Your Account to ensure additional costs are not incurred.