Terms & Conditions

GENERAL CONDITIONS

1. Sale of Product and Software licence

• METASENSE Pty Ltd agrees to sell the Product to You and You agree to purchase the Product.
• METASENSE Pty Ltd will deliver the Product to Your nominated address in a manner and at a time agreed between the parties and You will pay the specified freight charges.
• In order to use the Product, You must pay for either a Silver or Gold Software licence plan, monthly in advance for the duration of this Agreement. The licence fee for the first month from date of purchase will be supplied free of charge.
• Upon receipt of payment of your upfront fee you will receive an email with login details and instructions for the download of the METASENSE software application.

2. Term

• This Agreement will commence on the date it is signed and continues in force until terminated in accordance with clause 10
• Other information submitted by you or your organizational representatives via various methods

3. Software requirements

• You must maintain a Software licence and ensure that the Software is protected at all times from misuse, damage, destruction or any form of unauthorised use or disclosure.
• You must ensure that any device on which the Software is installed is connected to a valid and reliable internet connection and is free from viruses or defects.

4. Support and maintenance

• During the Term, METASENSE Pty Ltd will provide all necessary support and maintenance services, including Software updates and upgrades where necessary.
• You are otherwise responsible for the use, supervision, management and control of the System and associated documentation.

5. Product Warranty

• Subject to the terms of this agreement, METASENSE Pty Ltd will replace any faulty hardware or accessories at any time during the Term unless such fault has been caused by You.
• METASENSE Pty Ltd may refuse to replace any Product showing signs of wilful damage or unauthorised repair, tampering or neglect and in these cases You will be liable for the cost of replacing the Product.
• METASENSE Pty Ltd is not liable for the loss of any data caused by the damage to or repair of the Product.
• You are wholly responsible for any loss of or damage to the Product arising out of any negligence, misuse, manhandling or otherwise caused by You or Your officers, employees, agents and contractors.

6. Liability and indemnity

• To the fullest extent allowed by law, You release METASENSE Pty Ltd from and indemnify it against all liability to You and any third party under or in relation to or arising out of this Agreement whether such liability is direct or indirect, arises by virtue of act or omission, is in the nature of indirect or consequential loss, loss of profits or opportunity, loss of or damage to data, whether in tort, statute, contract or at common law, and whether or not such loss, cost, expense or liability was foreseeable.

7. Confidentiality

• The parties must not disclose the Confidential Information to any person except its users, employees, officers, agents and contractors without the prior written consent of the other party except as permitted under this Agreement.
• The parties must take all reasonable steps to ensure that each of its users, employees, agents and contractors do not make public or disclose the Confidential Information except as permitted under this Agreement.

8. Intellectual Property

• METASENSE Pty Ltd shall retain ownership of all the METASENSE Pty Ltd IP and the licence of Software granted to You under this Agreement is a non-exclusive, revocable licence to You to use the METASENSE Pty Ltd IP solely for use in accordance with this Agreement within the jurisdiction this Agreement was signed by You and no copyright, trade mark right or other intellectual property in or ownership of the METASENSE Pty Ltd IP passes to or is acquired by You.
• You must not copy, reproduce, alter, modify, publish, sell, assign, sub-license or otherwise exploit the METASENSE Pty Ltd IP, or allow any other person to do so, except as permitted under this Agreement or expressly permitted by METASENSE Pty Ltd in writing from time to time.
• You must disclose and assign to METASENSE Pty Ltd any improvements You conceive or make to the METASENSE Pty Ltd IP during the term of this Agreement.
• If You become aware of any person breaching METASENSE Pty Ltd’s IP or using or accessing the METASENSE Pty Ltd IP except in accordance with this Agreement You must immediately notify METASENSE Pty Ltd of this.

9. Interest

• If any amount payable by You under this Agreement is overdue for payment, the overdue amount will bear interest at the rate prescribed from time to time under the Penalty Interest Rate Act 1983 (Vic) calculated and accruing daily from the date due of payment until it is paid, and must be paid by the You on demand.

10. Termination

• METASENSE Pty Ltd may terminate this Agreement by giving 7 days written notice to You if:

  • the Charges are overdue by at least 14 days
  • an Insolvency Event occurs in relation to You
  • You are in breach of a term of this Agreement
• You may terminate this Agreement by giving at least 30 days written notice to METASENSE Pty Ltd.

• Where this Agreement terminates, METASENSE Pty Ltd:

  • may require You to delete, destroy or deliver up to METASENSE Pty Ltd any METASENSE Pty Ltd IP and our Confidential Information within 7 days and You must do so at Your cost
  • must be paid by You for any Charges accrued up to the date of termination
  • shall be entitled to disconnect Your access to the Software and Your use of the Product
  • shall be entitled to pursue any additional or alternative remedies provided by law

11. Insurance

• For the duration of the Term, You must obtain and maintain all necessary and prudent insurance of a kind and standard reasonable to Your business including for loss or damage suffered by use of the Product or Your collection and use of Customer Data.

12. Sales Related Taxes

• All amounts payable by or to a party under this Agreement have been calculated without regard to Sales Related Taxes except where this Agreement otherwise provides.
• If the whole or any part of any such amount is the consideration for a taxable supply for which the supplying party is liable to pay Sales Related Tax, the supplying party may charge the party liable to pay for the taxable supply under this agreement, and that party must pay the supplying party, concurrently with the payment of that amount, an additional amount equal to the Sales Related Tax payable in respect of the taxable supply calculated on the basis that the value of the taxable supply is the amount payable for the taxable supply excluding any Sales Related Taxes.
• The recovery of consideration for any taxable supply made under this Agreement is subject to the supplying party issuing to the party liable to pay for the taxable supply a tax invoice in respect of that supply.

13. Force majeure

• Neither party is liable for any delay nor failure to perform its obligations under this Agreement (other than the obligation to pay money) to the extent such delay or failure is due to an act, omission or circumstance beyond the reasonable control of a party, including but not limited to acts of God, storm, fire, flood, earthquake, war, terrorism, civil disorder, strikes or act of inaction of a governmental agency.

14. General

• You may not assign the whole or any part of this Agreement without METASENSE Pty Ltd’s prior written consent.
• This Agreement will be governed by the laws of Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
• The terms of this Agreement constitute the entire agreement between the parties in respect of the subject matter of this Agreement and supersede, replace and override all other discussions, undertakings, terms and agreements.
• Nothing in this Agreement constitutes the parties as partners or agents of the other and no party has any authority to bind the other legally or equitably except as expressly stated in this Agreement.

15. Notices

• A party may send a notice in connection with this Agreement by hand delivery, pre-paid post, email or facsimile transmission to another party at its details set out above.

16. Protection of Customer Data

• The parties agree that for the purposes of any applicable legislation, You shall be the Data Controller of any Customer Data and METASENSE Pty Ltd shall be the data processor (such terms or similar terminology having the meaning ascribed to them in any applicable legislation).
• You retain all rights to the Customer Data, and METASENSE Pty Ltd covenants to keep all Customer Data confidential and not to disclose it to any person other than its own officers and employees on a ‘need to know’ basis who have been directed to keep such information confidential in accordance with this Agreement.
• You will process data lawfully, fairly and in a transparent manner in relation to the Customer.
• You shall collect data for specified, explicit and legitimate purposes.
• You will retain personal data only for archival purposes, scientific, medical, legal or statistical purposes.
• METASENSE Pty Ltd will process data in a manner that ensures appropriate security of the personal data, including protection against accidental loss, destruction or damage, using appropriate technical or organisational measures.
• You will share METASENSE Pty Ltd’s Privacy Policy with your Customers and collect consent as required. The METASENSE Pty Ltd’s Privacy Policy is located here.
• You are responsible for informing Your Customers about how their data will be stored, accessed and used.

• METASENSE Pty Ltd may access and use the Customer Data for future development and improvement of its products. METASENSE Pty Ltd’s use and disclosure of Customer Data is permitted by You, provided that:

  • any disclosure is made in accordance with ethical principles and applicable laws.
  • the names of any individuals are de-identified.
  • the Customer Data will not be disclosed and will be used only for the purpose of generating de-identified data;
  • that the strictest of confidentiality is applied by METASENSE Pty Ltd and its agents.
  • You will be notified of any breaches of unsecured protected Customer Data, or any security incidents that may breach applicable privacy laws.
  • any subcontractors that create, receive, maintain, or transmit Customer Data on behalf of METASENSE Pty Ltd apply the same restrictions, conditions, and requirements as METASENSE Pty Ltd
• METASENSE Pty Ltd may transfer and store Customer Data outside the jurisdiction of this Agreement and warrants that any end users or other individuals to whom Customer Data relates have consented to such transfer or storage, or that such consent will be obtained prior to entering into this Agreement if required. METASENSE Pty Ltd will take all reasonable steps to ensure that Customer Data is treated securely.

17. Privacy

• The parties both covenant to each other that they will, at all times, comply with any privacy legislation applicable in respect of their collection and use of information as a result of, or related to, use of any of the Product.

18. Definitions

• Confidential Information means any information:

  • relating to the business of the parties.
  • of the parties which is designated by the respective owner as confidential;
  • of the parties which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential.

  but excludes any information that is in the public domain (other than due to a breach of this Agreement).

• Customer Data means confidential non-public personal information relating to Your patients, associates, employees and/or players, including protected health information (PHI), medical, strength, injury and fitness data; rehabilitation records and the like.
• METASENSE Pty Ltd IP means all intellectual property rights and Confidential Information owned or possessed by METASENSE Pty Ltd and which may be provided or disclosed to You during the term of this Agreement, including but not limited to the Product, Software and System.

• Insolvency Event means with respect to a person:

  • the person is dissolved, wound up or placed into bankruptcy or steps are taken with the intention that the person be dissolved, wound up or placed into bankruptcy.
  • a liquidator, provisional liquidator, controller, administrator, receiver, or trustee in bankruptcy is appointed in respect of the person or any property of the person (or takes possession of such property) or an application is made to a court for an order that such an appointment be made in respect of the person or any property of the person.
  • the person is (or states that it is) insolvent or an insolvent under administration (each as defined in the Corporations Act 2001 (Cth)).
  • anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
• Sales Related Taxes includes any applicable goods and services tax or value added tax.
• Software means the software relating to the System, consisting of a set of instructions and/or statements in machine readable form or any other medium to operate the System and any enhancement, application, update or new release thereof.
• System means METASENSE Pty Ltd’s proprietary system that comprises wearable motion sensors, Software and sophisticated algorithms that provide objective, quantitative and easily interpreted data relating to movement and physical activity.