Terms and Conditions of Use

Any changes made on this page need to also be reflected in the markdown version here: PainChek Terms & Conditions Policy - Markdown Formatted Version

Welcome to our Terms and Conditions of use. These Terms and Conditions are important and affect your legal rights, as they govern your use of the App. Therefore, it is important that you read them and our Privacy Policy (which can be accessed here www.painchek.com/privacy-policy and is also available to you within the App) carefully before you use the App.

1. Background

  1. This mobile application, website and domain name (collectively, App) are owned and operated by PainChek Limited ABN 21 146 035 127 and with registered office at suite 401, 35 Lime Street Sydney NSW 2000 (PainChek, we, us, our).
  2. The App is designed to help you assess pain in adults who are unable to verbalise their pain. When using the App, please ensure you complete all domains of the pain assessment. If used appropriately, the App will assist you to detect changes in a person’s behaviour that may be related to pain.
  3. The scores provided by the App are indicative of the level of pain a person may be experiencing (i.e. higher scores equate to more pain) (Pain Assessment). However, they should always be interpreted considering the person’s clinical condition. Ensure you seek medical advice if you have any concerns about the pain scores provided by the App, or if you have questions about how to treat or manage pain.
  4. The Pain Assessment is made available through the App and is subject to the following Terms and Conditions, as amended from time to time (Terms and Conditions).

2. Key Terms

  1. "Client" means a person or an entity that has been granted a licence to use the App by PainChek.
  2. "Patient" means a person whose pain levels are being assessed using the App.
  3. "Personal Information" has the meaning given in the Privacy Act 1988 (Cth).
  4. "User" means any person or entity that uses the App.
  5. "Smart Device" means a handheld mobile phone, tablet or other similar device with a camera.

3. Your Acceptance of these Terms and Conditions

  1. By downloading and using the App, you confirm that you accept these Terms and Conditions and our Privacy Policy, and that you agree to abide by them. If you do not agree with these Terms and Conditions or do not understand any of these Terms and Conditions, you should cease using the App immediately and uninstall it from your device.
  2. We have the right to change or modify these Terms and Conditions at any time without prior notice to you. As a result, please always verify whether you have consulted the latest version of the Terms and Conditions. Your continued use of the App constitutes your acceptance of the modified Terms and Conditions. The date on which these Terms and Conditions were last modified is indicated at the top of this document.
  3. To use the App, you must be at least 18 years of age.
  4. As a User, you can create a profile in the App for yourself and/or for a Patient. To create a profile for a Patient, you must have consent from the Patient to conduct the Pain Assessments using the App.
  5. We license the use of the App to you on the basis of these Terms and Conditions and subject to the rules or policies applied by the relevant app store where you have downloaded the App. We do not sell the App to you. We remain the owners of the App at all times.
  6. From time to time, updates to the App may be issued. Depending on the update, you may not be able to use the App until you have downloaded the latest version of the App and accepted any new terms.

4. Description and Use of the App

  1. Pain is subjective and dynamic experience, and therefore its assessment represents a particular time point that could change over the course of time. 
  2. Pain scores produced by the App for one Patient are not comparable to those of another Patient.
  3. The App is not designed for those Patients who can reliably self-report their pain. Pain scores obtained through self-report are not comparable to those obtained through the App.
  4. The App is designed to work on Smart Devices running the iOS or Android operating systems.  The App allows you to assess a Patient’s pain objectively and gain results in real time without requiring the Patient to verbalise their pain.
  5. The App is not designed to provide medical advice.  It remains your responsibility to monitor the Patient/s you are assessing and seek medical advice from a health care professional if you have any concerns.
  6. Reporting of pain scores will be available within the App and also via a web-based browser (at admin.painchek.com).
  7. To ensure you can use the App correctly you need to complete and understand the pain assessment process demonstrated via the provided in-App training prompts and/or online via the www.painchek.com website
  8. You must allow the App to access the camera of your Smart Device which will be used to conduct an analysis of the Patient’s face as one of the domains of the pain assessment. The video footage obtained during an assessment:
    1. is processed on the Smart Device;
    2. never leaves the Smart Device; and
    3. is discarded as soon as the facial analysis is completed;
  9. To complete a successful Pain Assessment, you must:
    1. complete all domains of pain assessment as specified in the App;
    2. have adequate lighting so that the Patient’s face can be seen clearly for the facial recognition assessment;
    3. ensure the plane of capture is at the same level as the Patient under the assessment; and
    4. ensure that your Smart Device is sufficiently charged, that is, it is not running in “Low Power” or “Battery Saver” mode.
  10. It is recommended, where appropriate and possible, that pain assessments are undertaken after mobilising the Patient (for example, walking, repositioning), to capture the real experience of the Patient.
  11. Each Pain Assessment needs to be conducted in a quiet environment to minimise any disruptions to the Patient under the assessment.
  12. The App relies on you providing accurate information regarding the Patients you are assessing, in order to obtain an accurate Pain Assessment.
  13. You acknowledge that failing to do any of the above may result in suboptimal performance of the App and in which case you accept full responsibility for the outputs from the App.
  14. The App includes options to track doses of medicine and the application of therapies (such as applying a heat pack). 
  15. The App does not provide or assign any therapeutic or pharmaceutical recommendation(s) or intervention(s) based on the resultant scores.

5. Additional Obligations on Users

  1. The User agrees:
    1. to provide PainChek with any information requested by PainChek in order for PainChek to verify your account and confirm you are a Client or are employed or engaged by a Client;
    2. that PainChek is neither an insurer, nor a contracting agent or employer of you;
    3. that you are responsible for your own acts and omissions;
    4. that you must exercise due care and skill in the provision of the Pain Assessments, including the correct use of the App;
    5. that you have the Patient's consent to conduct the Pain Assessment; and
    6. that you must ensure you or the Client hold and maintain appropriate insurances to cover any potential liability you may have in connection with providing the Pain Assessment.

6. Protection of Personal Information

  1. We respect your privacy. Any Personal Information collected or otherwise processed through your use of the App shall be processed by us in accordance with our Privacy Policy (which is also made available to you within the App) available at painchek.com/privacy-policy.

7. Proprietary Rights and License

  1. We (and our licensors) own all trademarks, copyrights, database rights and other intellectual property rights of any nature in the App and all the underlying software code.
  2. We grant you, as a User engaged with a Client, a non-transferable, non-exclusive, revocable license, to download, install and use the App on your mobile device in accordance with these Terms and Conditions.

8. Conditions of Use

  1. Except to the extent such cannot be prohibited by mandatory applicable law, you will not, and you will not allow third parties on your behalf to (or attempt to) copy, reproduce, distribute, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the App, or create derivative works of the App of any kind whatsoever.
  2. You must not use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms and Conditions, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code including viruses or harmful data into the App or any operating system.
  3. You must not use the App in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users.
  4. You assume sole responsibility for the results obtained from the use of the App, and for conclusions drawn from such use.
  5. At some point we may wish to update the App and you will need to download the updates if you want to keep using the App. We do not promise that we will always update the App so that it is relevant to you and/or works with the iOS/Android version that you have installed on your device. However, you promise to always accept updates to the App and we may terminate use of an out-of-date version at any time without giving notice of termination to you. Unless we tell you otherwise, upon termination, a) the rights and licenses granted to you in these terms will end; b) you must stop using the App and (if needed) delete it from your device.

9. Your Device and Connectivity

  1. The App can only be used on a Smart Device with the following minimum specifications:
    1. iOS - iPhone 6S, iPhone 6S+ or later, iPad Mini 4 or later, iPad (2017) or later, running iOS versions 10 or later
    2. Android - Select devices, including Samsung S7/S7 Edge/S8/S8+/S9 phones and Samsung Galaxy Tab A 8" (2017 model)/Galaxy S2 tablets, running Android version 6.0 or later.
    3. Consult our FAQs (painchek.com/ios-app-faqand www.painchek.com/android-app-faq) for more details on supported devices and minimum requirements.
  2. In order to be able to use the App, you need internet connection.  In the event that internet connectivity is disrupted, the application may still be usable, but with some limitations including no synchronisation of device data with the PainChek servers.
  3. You need to make sure your Smart Device is sufficiently charged, that is, it is not running in “Low Power” or “Battery Saver” mode.
  4. If you do not own the device on which you intend to download or install the App, you must first obtain permission from the owner of the device before downloading or installing the App.
  5. You acknowledge that the terms of the agreement with your mobile network provider will continue to apply when using the App. As a result, you or the device owner (as applicable) may be charged by the mobile network provider for access to network connection services while accessing the App. You and the device owner remain at all times responsible for procuring and paying for network connection services and any other costs you may incur in relation to your downloading, installing and/or using the App. You understand and agree that the downloading of the App to your Smart Device is at your own discretion and risk. You will be solely responsible for any damages to your Smart Device or loss of data that results from such downloads and use.
  6. You acknowledge and accept that internet transmissions are never completely private or secure. You understand that any message or information you send using the App may be read or intercepted by others. It is your responsibility to keep your Smart Device and access to the App secure.

10. Availability

  1. Due to the nature of the internet and your Smart Device, we cannot guarantee that your access to the App will be uninterrupted, timely or error-free. We may also occasionally need to carry out repairs, maintenance or introduce new facilities and functions which result in the App being unavailable. If the need arises, we may suspend access to the App, or close it indefinitely.
  2. We do not accept any responsibility whatsoever for unavailability of the App, or any difficulty or inability to download or access content or any other communication system failure which may result in the App being unavailable.

11. Termination

  1. Access to the App may be suspended or terminated for you personally or all users temporarily or permanently at any point in time. Except if you are using an out-of-date version of the App, we will use reasonable efforts to give you prior notice thereof. You also have the right to terminate your use of the App at any time.
  2. We may also terminate these Terms and Conditions immediately without notice if you are in breach of any provisions of these Terms and Conditions.
  3. Upon any termination, the rights and licenses granted to you herein shall terminate and you must cease all use of the App. If the App is terminated by us (with the exception of clause 11.2 above), you may be entitled to a refund under the Australia Consumer Law provided you can present a receipt or another form of proof of purchase.

12. Limitation of Liability

  1. You acknowledge that the App has not been developed specifically to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App meet your requirements. To the maximum extent permitted by applicable law, and subject to clause 12.3, the App is provided to you “as is” and “as available”, without warranties and conditions with respect to the App, either expressed or implied, including but not limited to, the implied warranties and/or conditions of accuracy and non-infringement of third-party rights.
  2. Except as set out in clause 12.3, we will in no event be liable for any damage, including indirect, special, punitive, exemplary or consequential losses or damages of whatsoever kind or lost profits, loss of goodwill, loss of data, business interruption, accuracy of results, or computer failure or malfunction, even if we have been advised of or should have known of the possibility or such damage is caused directly by our gross negligence or wilful misconduct.
  3. Nothing in these Terms and Conditions shall exclude or limit any liability which cannot be excluded or limited under applicable law. Nothing in these Terms and Conditions intends to deprive you of any rights you may be granted under applicable mandatory laws including the Australian Competition and Consumer Act 2010 (Cth).  If we breach any consumer guarantee, our liability is limited to resupplying the service delivered to you by the App.

13. Severability

  1. Each provision of these Terms and Conditions operates separately. If any court or competent authority decides that any provision is illegal, invalid, or unenforceable, the other provisions will remain in full force and effect, and such provision will be replaced with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision.

14. Governing Law and Competent Court

  1. These Terms and Conditions are governed by and construed in accordance with the laws of New South Wales, Australia without regard to its conflict of law rules, and the courts of New South Wales, Australia shall have exclusive jurisdiction over any dispute that may arise between you and us in relation to these Terms and Conditions or the App.

This policy was last updated on 18th September 2018.