APPLICATION TERMS AND CONDITIONS
These terms and conditions of use (Terms) govern your use of the Theratrak mobile application and Theratrak software as a service (Theratrak App) and the Theratrak software as a service available from a desktop at https://app.theratrak.co (Theratrak SaaS), together the application (Application). Use of this Application constitutes acceptance of these Terms, as may be revised by Theratrak Pty Ltd ABN 95 623 821 250 (Theratrak) from time to time. These Terms constitute a binding agreement between you and Theratrak governing the use of the Application.
The Application is owned by Theratrak and the terms ‘we’, ‘us’, ‘our’ and ‘Theratrak’ refer to Theratrak. The terms ‘you’ and ‘your’ refer to users of the Application, whether registered health care professionals (Therapists), patients (Patients) carers of Patients (Carers) and parents and guardians of Patients (Guardians), (each a User).
Therapists can access and use the Theratrak SaaS and Theratrak App and only Patients, Carers and Guardians can access and use the Theratrak App.
The Theratrak App and Theratrak SaaS each have the features listed on our website at https://www.theratrak.co
The Application includes videos of best practice therapy exercises and allows Therapists to store each Patient's therapy plan (Therapist Plan) and upload videos of Patients doing their Therapist Plan with the Therapist to support Patients, Carers and Guardians doing the Therapist Plan at home.
By downloading, installing, accessing or using the Application, you acknowledge you have read, understand and agree to be bound by these Terms. If you do not agree to these Terms you should uninstall and/or cease to access and use this Application immediately.
1. Eligibility and Basis of Use
The Application may only be used by individuals aged eighteen (18) years or older. If the User is thirteen (13) years or older but under the age of eighteen (18) years, the User should review these Terms with the User’s Guardian to make sure the User and the User’s parent or guardian understand them.
Therapists must obtain the consent of each Patient to collect, hold and use any personal information or images or videos of the Patient in accordance with our privacy policy by having the Patient electronically sign a box in the Theratrak App when prompted when adding a new client Patient.
Where a Patient is under the age of eighteen (18) years, the Therapist must obtain the consent of the Patient’s Guardian to collect, hold and use any personal information or images or videos of the Patient in accordance with our privacy policy by having the Guardian electronically sign a box in the Theratrak App when prompted when adding a new client Patient.
Using the Application may be prohibited or restricted in certain countries. If you use the Application outside of Australia, you are responsible for complying with the laws and regulations of the territory from which you access or use the Application.
2. Additional Terms and Conditions
These Terms supplement and incorporate:
the Theratrak policies and terms and conditions (Theratrak Policies), including the Terms of Use for the Theratrak website, posted at www.theratrak.co (Website);
the Apple, Inc. Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (Apple Terms); and
the Android, Google Inc. Terms and Conditions including, without limitation, the License Agreement and Terms of Application (Android Terms).
If any of the provisions of the Apple Terms, the Android Terms or any applicable Theratrak Policies conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the Application.
3. Registration
Access to the Application will require a User to register for an account (Account). Basic information is required to have an Account. Each User is required to provide certain information including name and email address.
Therapists: Theratrak will send a Therapist (which in this context may include a director of a Therapist clinic) an email with a username to access an Account set up for each Therapist and ask the individual Therapist to set up a password. Once a Therapist has set up a password and PIN, the Therapists can then download the Theratrak App and use their username and password to access and use the Theratrak App.
Patients: Patients will receive Theratrak App login details via an email generated when a Patient or Patient’s Guardian provides the consents in clause 1(b) or 1(c) as applicable.
Each User agrees to provide accurate, current and complete information during the registration process and update such information to keep it accurate, current and complete. Theratrak reserves the right to suspend or terminate any Account and a User’s access to the Application if any information provided to Theratrak proves to be inaccurate, not current or incomplete.
It is the User’s responsibility to keep its Account details and password confidential. The User is liable for all activity on its Account. The User agrees that it will not disclose its password to any third party and that it will take sole responsibility for any activities or actions under its Account, whether or not it has authorised such activities or actions. The User will change its password regularly.
The User will immediately notify Theratrak of any unauthorised use of its Account.
4. Copyright and Intellectual Property
Our Application contains material which is owned by or licensed to us (or our affiliates and/or third party licensors as applicable), and is protected by Australian and international laws, including but not limited to the trademarks, trade names, software, Content, design, images, graphics, layout, appearance and look of the Application. Theratrak, the Theratrak logo, and other Theratrak material used in connection with the Application are unregistered or registered trademarks of Theratrak (collectively Theratrak Marks).
Intellectual Property includes all code, algorithms, copyright, fees, pricing, registered and unregistered Theratrak Marks, logos, slogans, designs, audio tracks, information, images, photos, patents, know-how, trade secrets, ideas, methods, diagrams, drawings, databases, notes, documents, confidential information and any other proprietary or industrial rights relating to Theratrak (in each case whether registered or unregistered or whether capable of registration), together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world and whether created before or after the date of these Terms; goodwill in the business and Application; trade, business company or organisation names; internet domain names; and Content, images and layout.
You agree that, as between you and us, we own all Intellectual Property rights in the Application, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights. We own the Intellectual Property including copyright which subsists in all creative and literary works displayed in the Application. The Application is protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorised by Theratrak or the owner of the Content.
Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively Third Party Marks).
The Intellectual Property, Theratrak Marks and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Theratrak or the applicable trademark holder.
Users do not obtain any interest or licence in the Intellectual Property, Theratrak Marks or Third Party Marks without the prior written permission of Theratrak or the applicable trademark holder. Users may not do anything which interferes with or breaches the Intellectual Property rights.
5. User Licence
Subject to these Terms, Theratrak grants the Therapist a personal, non-exclusive, non-transferable, limited and revocable licence to use the Theratrak App for your own commercial use only on a mobile device or, if available, any other supported computer (each a Device) owned or controlled by the User as permitted in accordance with these Terms (User Licence), and not to use the Theratrak App in any other way or for any other purpose, apart from local fair dealing legislation. All other uses are prohibited without our prior written consent.
Subject to these Terms, Theratrak grants the Patient a personal, non-exclusive, non-transferable, limited and revocable licence to use the Theratrak App for your own personal and/or non-commercial use only on only on a mobile device or, if available, any other supported computer (each a Device) owned or controlled by the User as permitted in accordance with these Terms (User Licence), and not to use the Theratrak App in any other way or for any other purpose, apart from local fair dealing legislation. All other uses are prohibited without our prior written consent.
The right to use the Application is licensed to you and is not being sold to you. You have no rights in the Application other than to use it in accordance with these Terms.
These Terms and User Licence govern any updates to, or supplements or replacements for, this Application, unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
6. User Warranties
By using our Application, you warrant that you possess the legal capability and authority to enter into the Terms and to use the Application in accordance with the Terms; you are at least 18 years old or if you are under 18 years old then have reviewed these Terms with your Guardian to make sure that you and your Guardian understand them and you have the consent of your Guardian; any registration information you submit is truthful and accurate and you will maintain the accuracy of such information; and your use of our Application does not violate any applicable law or regulation.
As a condition of your use of our Application, you agree to abide by the Terms; not to provide the Application to any third party; that Theratrak has the right to refuse you any and all current or future use of the Application and that Theratrak reserves the right to include or exclude entry to, or remove a User from the Application.
7. Payment
The Patient App is free to use.
To use the Theratrak SAAS, Therapists must pay the recurring monthly Fee in advance. The fee for our Theratrak App is set out on our website at https://www.theratrak.co/free-trial (Fee).
In the absence of fraud or mistake, all payments made are final and you shall not have the right to cancel your purchase for any reason and further you agree to satisfy all such payments made, with exception to action taken under the Refund Policy set out below.
If you make a payment by credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the purchase price.
Nothing prevents us from taking any action necessary to recover any unpaid purchase price. If you fail to pay, your information will be passed on for collection and or legal action. You acknowledge and agree that you are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense. If you at any time exceed our payment terms and as a result are passed on for collection and or legal action, we may place a default against you with a credit reporting agency.
If you fail to pay our Fees in accordance with this clause 7, we may suspend or de-activate the Application and you will not be able to access your Account or Therapy Content until payment is made and your Account is reactivated.
Our pricing structure or payment methods may be amended from time to time in our sole discretion. After a pricing change, each User has the choice to continue using the Website, or to cease to use the Website without penalty.
8. User Information and Security
The Application may require the transmission of information provided by the User including User names and passwords, addresses, e-mail addresses and financial information (such as credit card numbers) (User Information).
If the User uses such Application functionality, the User consents to the transmission of User Information to Theratrak, its agents and/or service providers and authorises Theratrak, its agents and/or service providers to record, process and store such User Information as necessary for the Application functionality and for purposes described in our Privacy Policy on our Website.
User Information is stored securely. If we are aware of a breach of security, we will notify affected users and we will cooperate with authorities regarding the breach.
The User is solely responsible for maintenance of the confidentiality and security of any User Information transmitted from or stored on a Device for the purposes of the Application, for all transactions and other activities in the User’s name, whether authorised or unauthorised.
The User agrees to immediately notify us of any unauthorized transactions or breach of security associated with the Application. We are not responsible for any losses arising out of the loss or theft of User Information transmitted from or stored on a Device or from unauthorized or fraudulent transactions associated with the Application.
The Application allows Therapists to submit videos of Patients exercising, exercise plans, images and other communications (collectively, the Therapy Content). This Therapy Content may be shared by Therapist as part of the Application with a Therapist’s Patient to whom an Therapist directly sends such information.
In connection with Therapy Content, as a Therapist you warrant that: (i) you own or have the necessary licences, rights, consents, and permissions to use, and you authorise Theratrak to use, all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Therapy Content to enable inclusion and use of the Therapy Content in the manner contemplated by the Application and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the Therapy Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Therapy Content in the manner contemplated by the Application and these Terms.
A Therapist is responsible for creating and maintaining all medical records in respect to a Patient required by applicable laws and Theratrak does not have any obligation in respect to creating medical records.
The Application may require the transmission of User Information. In order to access and use the features of the Application, you acknowledge and agree that you will have to provide Theratrak with your mobile phone number and email.
Theratrak reserves the right to decide whether Therapy Content is appropriate and complies with these Terms. Theratrak may remove such Therapy Content and/or terminate a User's access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
A Therapist is solely responsible for the Therapy Content and other information that you submit.
A User must notify Theratrak immediately of any breach of security or unauthorised use of your Device. Although Theratrak will not be liable for your losses caused by any unauthorised use of your Account, you may be liable for the losses of Theratrak or others due to such unauthorised use.
9. Acceptable Use and Prohibited Use
Use by the User of the Application and any Therapy Content and User Information transmitted in connection with the Application is limited to the contemplated functionality. The User agrees that his or her use of the Application, Content and any Therapy Content must comply with these Terms and the Theratrak Policies. In no event may the Application be used in a manner that:
harasses, abuses, stalks, threatens, defames or otherwise interfere, infringe or violate the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
is unlawful, fraudulent or deceptive;
uses technology or other means to access the Application, Therapy Content or Content is not authorized by us;
uses or launches any automated system, including without limitation, robots, spiders, or offline readers, to access the Application, Website, Therapy Content or Content;
attempts to or tampers with, hinder or modify the Application, attempts to introduce viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality, knowingly transmit viruses or other disabling features, damages or interfere with the Application including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Application;
attempts to gain unauthorised access to our computer network or user accounts;
encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
violates these Terms;
attempts to damage, disable, overburden, or impair our servers or networks;
fails to comply with applicable third party Terms; or
facilitates or assists another person to do any of the above acts.
You must not post, upload, publish, submit or transmit any Therapy Content that:
infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy;
is fraudulent, false, misleading or deceptive;
requests money from, or is intended to otherwise defraud other Users;
denigrates Theratrak or the Application;
transmits junk mail, chain letter, spam mail, spimming, phishing, trolling or other unauthorised mass transmission.
contains videos, images or media content of another person without his or her permission (or if such person is a minor, without the consent of the minor’s legal guardian);
is defamatory, abusive, obscene, pornographic, profane, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
is violent or threatening or promotes violence or actions that are threatening or intimidating to any other person; or
promotes illegal or harmful activities or substances.
You must not:
print, publish, modify, link to or distribute any Therapy Content or Content from the Application or any other documentation that we provide to you, unless expressly permitted under these Terms or we have authorised you in writing;
breach copyright or Intellectual Property rights, including but not limited to, that you must not republish, copy, distribute, transmit or publicly display material from our Application; alter or modify any of the code or the material on the Application;
cause any of the Application to be framed or embedded in another website;
collect or harvest any personally identifiable information, including phone number, from the Application, nor to use the communication systems provided by the Application for any commercial solicitation or spam purposes;
modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any Application; or
facilitate or assist another person to do any of the above acts.
Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays and other content associated with the Application (Content) is prohibited.
We reserve the right, in our sole discretion, to terminate any User Licence, remove Therapy Content or Content or assert legal action with respect to Content or use of the Application, that we reasonably believe is or might be in violation of these Terms or Theratrak Policies. Our failure or delay in taking such actions does not constitute a waiver of our rights to enforce these Terms.
Upon termination of the Terms, we have no further obligation to you, and may cease to provide the Application to you. The accrued rights, obligations and remedies of the parties are not affected by the termination of the Terms.
You must permit us to access your Account for the purposes of fixing the Application.
10. Consumer Guarantee
Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
If you are a consumer as defined in the ACL, the following applies to you: “We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. You are entitled to a replacement or refund for a major failure and for compensation for any reasonably foreseeable loss or damage. You are also entitled to have the services remedied if they are not rendered with due care and skill or they are not fit for purpose and that failure does not amount to a major failure. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.”
Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for services provided to consumers is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
Except for your Statutory Rights, all material and work are provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
11. Disclaimers
We provide the Application to the User as is, and the User is using the Application at his or her own risk.
To the fullest extent allowable under applicable law, we disclaim all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Application is merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors or able to operate on an uninterrupted basis, or that the use of the Application by the User is in compliance with laws applicable to the User or that User Information transmitted in connection with the Application (including as part of online payment) will be successfully, accurately or securely transmitted.
We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the Content and information in the Application, technical accessibility, fitness or flawlessness of the Application, or that your use of the Application will not infringe rights of third parties.
Theratrak does not endorse any Therapy Content, or any opinion, recommendation, or advice expressed therein, nor does Theratrak provide direct therapy treatments or medical advice. Therapists use the Application as a tool to support their therapy services they provide to Patients and Theratrak expressly disclaims any and all liability in connection with Therapy Content or therapy content Theratrak makes available on the Application.
Limitation of Liability
As a condition of using the Application, and in consideration of the Application provided by us, we exclude and you agree to the fullest extent allowable under applicable law subject to your Statutory Rights, in no event shall Theratrak and its parent or related bodies corporate (i) be liable to the User or any third party with respect to use of the Application, including without limitation participation in online payment; and (ii) be liable to the User or any third party for any direct, indirect, special, incidental, punitive, consequential, or exemplary damages, including, without limitation, damages for loss of goodwill, lost profits, loss of earnings, loss of business opportunities, loss, theft or corruption of User Information, Therapy Content or data, the inability to use the Application or device failure or malfunction, however arising (including negligence) or otherwise arising in connection with:
the use of the Application by you, including but not limited to damages resulting from or arising from your reliance on the Application, or the interruptions, errors, defects, delays in operation or other conduct by third parties, or any failure of performance of the Application;
any unauthorised access to or use of our secure servers and /or any personal information or financial information stored therein;
any errors or omissions in any Therapy Content posted, emailed, transmitted or otherwise made available or any offensive, defamatory or illegal Therapy Content;
the disclosure of any of your information;
the breach, or alleged breach, of any warranty, express or implied, relating to these Terms or any transaction; or
Government restriction, strikes, war, any natural disaster or force majeure, or any other condition beyond our reasonable control.
To the fullest extent allowable under applicable law, (but subject to the maximum extent permitted by applicable law) and your Statutory Rights the maximum aggregate liability of Theratrak and its parent or other affiliated companies to a User, whether in contract, tort (including negligence), strict liability or other theory, arising out of or relating to the use of or inability to use the Application, is the amount that the User pays, if any, to Theratrak for access to or use of the Application during the six months period immediately prior to the event giving rise to such liability or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these Terms inure to the benefit of Theratrak.
12. Indemnification
By using the Application, you agree to defend and indemnify and hold us (and our parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to your use of or access to the Application; any breach by you of these Terms; any wilful, unlawful or negligent act or omission by you; and any violation by you of any applicable laws or the rights of any third party.
We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
This defence and indemnification obligation will survive these Terms and your use of the Application. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
13. Termination
The Terms are effective until terminated by us. Either Party may terminate these Terms if:
the other Party commits a non-remediable breach of these Terms; or
the other Party commits a remediable breach of these Terms and does not remedy the breach within 3 days after receiving notice of the breach.
You may terminate these Terms by notice to our administration team to the email below, however you will not be entitled to any refund, unless you have terminated for our breach in accordance with clause 14.
We may immediately terminate these Terms on written notice to you if:
we are required by law to cease providing the Application, including under the Health Practitioner Regulation National Law; or
you breach any applicable laws, regulations or codes of conduct that may apply.
14. General
Amendments: Theratrak reserves the right to amend, change or modify these Terms or any other Theratrak Policies related to use of the Application at any time and at its sole discretion by posting revisions on the Website. Continued use of the Application following the posting of these changes or modifications will constitute acceptance of such changes or modifications. If any change or modification is unacceptable to you, you can choose to cease to use our Application.
Governing Law and Jurisdiction: This Application is governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
Severability: If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions, which continue in full force and effect.
Disputes: You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.
Entire Agreement and Understanding: In respect of the subject matter of the Terms, the Terms contain the entire understanding between the Parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the Parties has relied entirely on its own enquiries before entering into the Terms.
For any questions or notice, please contact us at:
Theratrak Pty Ltd ABN 95 623 821 250
6/100 Shirley Rd, Wollstonecraft, 2065, NSW
Phone: +61410218747
Email: admin@theratrak.co
Last update: 1 July 2020
