LYMBASE TERMS AND CONDITIONS

This Agreement is a contract between you (‘you’ or ‘your’) and Lymbase Pty Ltd A.C.N. 637 071 393 (‘Lymbase’, ‘we’, ‘us’, ‘our’), and sets out the terms and conditions that apply to your use of the Lymbase Application. You agree that your acceptance of these terms and conditions, and ongoing use of the Lymbase Application, shall constitute your acceptance of this Agreement. If you do not wish to be bound by these terms and conditions you should not accept these terms and conditions and will not be able to access the Lymbase Application.

1. ABOUT THE LYMBASE APPLICATION

1.1 The Lymbase Application:

1.1.1 has been designed for Clinicians or their authorised administrative assistant/ clerical support staff;
1.1.2 facilitates the collection and storage of patient data relevant to the assessment and treatment of Lymphoedema;
1.1.3 automates calculations for circumference measures of body parts affected by Lymphoedema and provides a visual display of size change, highlighting clinically significant changes and normative ranges where available; and
1.1.4 has been designed to create efficiencies for the clinician, and information in a more usable format for patients.

2. DEFINITIONS

2.1 The following definitions apply to this Agreement:

2.1.1 Agreement means this agreement and any schedules, annexures and variations to this agreement, together with any policies and documents incorporated by reference.
2.1.2 Clinician means a clinician trained to treat Lymphoedema.
2.1.3 Consequential Loss means any loss, damage or costs incurred that is:
(a) indirect or consequential; and
(b) any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to Lymbase rating; loss of anticipated savings and/or loss or denial of opportunity other than in respect of any such losses incurred by Lymbase directly in respect of this Agreement.
2.1.4 Fees means any fees charged by us as described in this Agreement.
2.1.5 Lymbase, we, us or our means: Lymbase Pty Ltd A.C.N. 637 071 393 and can include a Lymbase Affiliate or any other third party provider, where applicable.
2.1.6 Lymbase Account means an account that Lymbase creates to uniquely identify you and to enable you to use the Lymbase Application.
2.1.7 Lymbase Affiliate means a related body corporate or related entity of Lymbase, including one in another jurisdiction.
2.1.8 Lymbase Application means the software platform developed by Lymbase.
2.1.9 Lymbase Website means https://app.lymbase.com and/or https://lymbase.com.
2.1.10 Lymphoedema is a swelling of part of the body.
2.1.11 Patient Consent Form means the patient consent form required to be obtained from patients prior to any Clinician using the Lymbase Application substantially in the form in Schedule 2.
2.1.12 You (or Your) means the person identified when a Lymbase Account is created. If:
(a) such person does not exist, or
(b) the name or details are used by someone who is not in fact that person, or
(c) is otherwise provided dishonestly or fraudulently, then You (or Your) means the person who clicks to accept these terms.
2.1.13 User means a user who creates a Lymbase Account within the Lymbase Application.

3. INTERPRETATION

3.1 In the interpretation of this agreement:

3.1.1 References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
3.1.2 Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
3.1.3 Grammatical forms of defined words or phrases have corresponding meanings;
3.1.4 Parties must perform their obligations on the dates and times fixed by reference to Australian Eastern Daylight Time;
3.1.5 Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
3.1.6 If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
3.1.7 References to a party are intended to bind their executors, administrators and permitted transferees; and
3.1.8 Obligations under this agreement affecting more than one party bind them jointly and each of them severally.

4. POLICIES INCORPORATED INTO THIS AGREEMENT

4.1 Before you create an account with us or use any of the Lymbase Application, you should read this Agreement, as well as Lymbase’s Privacy Policy and any other policy found on the Lymbase Application or the Lymbase Website, which are incorporated into this Agreement by reference.

4.2 We recommend that you store or print a copy of this Agreement (including all policies) for your records. To the extent of any inconsistency between this Agreement and any incorporated policy, this Agreement will prevail.

5. CHANGES TO THIS AGREEMENT

5.1 Lymbase may amend this Agreement at any time for any reason including, for example, if we change the functionality of Lymbase Application, introduce a new Lymbase Application, or as required by law. We will place the amended Agreement on the Lymbase Website. If these terms and conditions change you will also be notified when you login to the Lymbase Application and you will be asked to agree to the then current terms of this Agreement. If you do not agree with the changes, you may close your Lymbase Account in accordance with clause 11.

6. NO WARRANTY

6.1 We do not give any express warranty or guarantee as to the suitability, reliability or availability of the Lymbase Application, or of the content on the Lymbase Application.

6.2 Except as required by law, we do not guarantee continuous, uninterrupted or secure access to the Lymbase Application and we make no representations or warranties regarding the amount of time required to repay a Loan.

7. LYMBASE ACCOUNT

7.1 Within Australia, access to the Lymbase Application is permitted for any Clinician who meets the requirements for registration with the Australasian Lymphology Association (post-graduate training with an accredited course and a commitment to continuing education). Evidence of registration or relevant training is required to set up an account. This also limits access to the garment search, ensuring those prescribing compression beyond 30mmHg are trained, to limit the risk of pressure injury or worsening lymphoedema from poorly fitting compression.

7.2 You can create a Lymbase Account through the Lymbase Website and clicking ‘Create New User’.

7.3 Once your Lymbase Account is created, you will be prompted to choose and enter a secure password. You may subsequently access your Lymbase Account, using your secure password, through the Lymbase Application including using multi-factor authentication.

7.4 You are responsible for maintaining the security of your Lymbase Account details. We will not take responsibility for unauthorised access and use of your Lymbase Account.

7.5 You acknowledge and agree that if a person uses your Lymbase Account (whether with or without your authorisation), that person will be deemed to be you for the purposes of this Agreement and that will not affect your obligations under this Agreement, regardless of whether:

7.5.1 we are or at any time become aware that the use of your Lymbase Account is not authorised by you;
7.5.2 there is a dispute, breach, defect or other issue in relation to use of the Lymbase Application and/or the Lymbase Website under this Agreement or any associated agreements or policies; or
7.5.3 any rights or claims that we may have against that person.

8. YOUR OBLIGATIONS TO US AS A HOLDER OF A LYMBASE ACCOUNT

8.1 By holding a Lymbase Account with us, you agree that you must:

8.1.1 pay any applicable Fees associated with your use of the Lymbase Application and your Lymbase Account;
8.1.2 not provide us with any information that is false, inaccurate or misleading (including, without limitation, in relation to your identity or personal details or by using an alias or false identity, even with the consent of the person whose identity you are using or seek to establish a fake, untraceable or unverifiable Lymbase Account);
8.1.3 ensure any information about you, including your contact details, is true, current and complete. If your information changes, you must update it through your Lymbase Account via the Lymbase Application;
8.1.4 provide to us in a timely manner all documentation relating to your identity, if requested by us;
8.1.5 not use your Lymbase Account or the Lymbase Application for any unlawful, fraudulent or improper activity, including for any experimental, testing or research purposes or otherwise in a manner for which they have not been designed;
8.1.6 cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity on your Lymbase Account;
8.1.7 be aware of and pay any taxes that may apply to your use of the Lymbase Application;
8.1.8 not permit others to use your Lymbase Account, or allow anyone else to have or use your account password details;
8.1.9 not use any technology (device, software or hardware) to damage, intercept or interfere with the Lymbase Application;
8.1.10 immediately contact us if you believe that your Lymbase Account may be subject to an unauthorised transaction, account takeover or other type of fraudulent activity or security breach; and
8.1.11 not open or use more than one Lymbase Account.

9. ACKNOWLEDGEMENTS BY USERS

9.1 By accepting the terms of this Agreement, each User acknowledges and agrees to our Acceptable Use Policy set out in Schedule 1.

10. PATIENT CONSENT

10.1 By accepting these terms and conditions, you acknowledge that you have obtained each client’s consent prior to collecting and storing any patient personal information within Lymbase.

10.2 You acknowledge you shall obtain a signed Patient Consent form in the form in Schedule 2 from each patient from whom you intend to collect and store data within the Lymbase Application.

10.3 You acknowledge you have provided each patient with a copy of Lymbase’s Privacy Policy.

11. CLOSING YOUR LYMBASE ACCOUNT

11.1 You may request to close your Lymbase Account by contacting us directly.

11.2 We may close your Lymbase Account for any reason, within our absolute discretion.

11.3 Except as otherwise stated, this Agreement will be terminated once the Lymbase Account is closed. However, you will remain liable for all outstanding obligations related to the Lymbase Account even after it has been closed.

11.4 We may immediately limit your access to the Lymbase Application or suspend or close the Lymbase Account where we have reasonable cause to do so including, without limitation, where:

11.4.1 we reasonably consider it necessary to do so in order to:
(a) protect the integrity of our systems or Lymbase;
(b) prevent fraud;
(c) limit the risk of money laundering or terrorism financing; or
(d) otherwise protect us against legal, regulatory or non-payment risk;
11.4.2 you do not pass our verifications or checks, including VOI;
11.4.3 we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement by the payment due date or by providing us with false, inaccurate or misleading information or using your Lymbase Account or the Lymbase Application in breach of this Agreement); or
11.4.4 we otherwise reasonably consider the activity associated with the Lymbase Account to be suspicious.

11.5 We will use our best efforts to provide written notice to you before closing your Lymbase Account, except where doing so may compromise any investigation related to your breach of this Agreement or unlawful or improper conduct. Where we close your Lymbase Account all amounts owed by you to us will immediately become payable to Lymbase.

12. OUR INTELLECTUAL PROPERTY

12.1 The Lymbase Application and all content on the Lymbase Application are the exclusive property of Lymbase.

12.2 The information on the Lymbase Application is for information purposes only and is subject to change without notice.

12.3 We may make changes to the Lymbase Application. A Learning Health System will always be evolutionary and so we will endeavour to keep our application as up-to-date as possible. Any changes to the Lymbase Application will remain our property.

12.4 You must not copy, reverse engineer or otherwise use anything on the Lymbase.

12.5 You must not provide access to unauthorised users and you must not provide access to any third party without the express written consent of Lymbase.

13. LIMITATION OF LIABILITY

13.1 Lymbase’s liability for all claims arising under or related in any way to this Agreement no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the amount of the Fees charged to the User.

13.2 Neither Lymbase nor any Lymbase Affiliate will be liable for any consequential loss arising under or related in any way to this Agreement no matter how arising and whether in contract, tort (including negligence) or otherwise.

13.3 Subject to clause 13.1, Lymbase, Lymbase Affiliates, and the directors, employees, officers, agents and representatives of them will not be liable for any loss or damage (including any direct, indirect or consequential loss or damage) you or any third party may incur from your use of the Lymbase Application, except to the extent that we cause such loss or damage.

13.4 You acknowledge that any consumer-related claims you may have in respect of the Loan will be a matter between you and the relevant User.

13.5 To the extent permitted by law, a party’s liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.

13.6 The parties will take all reasonable steps to mitigate any loss incurred by them under this Agreement.

14. INDEMNIFICATION

14.1 You are responsible to Lymbase and any Lymbase Affiliate for any loss, costs (including reasonable legal fees), expense or damage suffered or incurred:

14.1.1 in connection with any claim or demand made by any third party due to or arising out of your breach of this Agreement, or your breach of any law or of the rights of a third party relating to your use of the Lymbase Application; and/or
14.1.2 as a direct or indirect consequence of unauthorised users accessing your account as a result of your negligence.

14.2 You acknowledge that it is imperative that Lymbase be able to rely on:

14.2.1 the information you provide to us;
14.2.2 the identity that you use; and
14.2.3 that your use of your Lymbase Account and the Lymbase Application is for the purpose set out in this Agreement.

14.3 You acknowledge that if we are unable to rely on the information provided by you as set out in 22.2 would cause significant detriment to Lymbase and Lymbase Affiliates. You agree that monetary damages will not be sufficient to remedy that detriment, or may otherwise be incapable of being ascertained, and irrevocably consent to Lymbase or any of its related bodies corporate seeking and obtaining injunctive relief to obtain relevant documents from you and to prevent such breach, or orders of specific performance to compel compliance, in addition to any other remedies available at law or in equity.

14.4 If Lymbase reasonably considers that you have breached an obligation under this Agreement in relation to your identity, the information you provide to us and/or your use of your Lymbase Account and the Lymbase Application, you agree, on request from Lymbase, to provide Lymbase with copies of all documents, notes or communications in relation to such alleged breach.

14.5 This clause 14 survives termination of this Agreement.

15. TRANSFERS OR ASSIGNMENTS

15.1 We may transfer or assign this Agreement, and any right under this Agreement, to a third party without notice to you or your consent unless the assignment will detrimentally affect your rights under the Agreement (in which case we will seek your consent prior to assignment, which consent must not be unreasonably withheld). You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. For the avoidance of doubt, you acknowledge that no assignment by us to another person of any amount you owe to us will require your consent or notice to you.

16. YOUR CONSUMER RIGHTS

16.1 As a consumer, you have certain rights under consumer protection legislation (Consumer Rights). These Consumer Rights include statutory guarantees under the Australian Consumer Law that goods will be of acceptable quality, match their description and be fit for any purpose made known to the consumer, and that services supplied will be provided with due care and skill and be reasonably fit for any specified purpose. When a statutory guarantee is breached, consumers are entitled to a range of remedies including, in some cases, damages for reasonably foreseeable losses.

16.2 Nothing in this Agreement is intended to exclude, restrict or modify any of your Consumer Rights, including by limiting our liability or imposing liability on you in a manner which would be considered unfair under the relevant consumer protection laws.

17. COMPLAINTS AND DISPUTES

17.1 If you wish to raise a dispute or submit a complaint to us, you should do so by contacting us using the details listed below. Disputes should be raised with us as soon as possible via email: [email protected].

17.2 We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes.

17.3 Where we cannot resolve a dispute within 21 days, we will notify you of the reason for the delay as well as an indication of when we expect to resolve the complaint or dispute.

18. NOTICES AND COMMUNICATIONS

18.1 This Agreement and any other agreements, notices or other communications regarding the Lymbase Account and/or your use of the Lymbase Application may be provided to you electronically.

18.2 You agree to receive all communications from us in electronic form. Communications will be posted on the Lymbase Website (where permitted under this Agreement) and/or sent to your email address.

18.3 Alternatively, we may choose to give notice to you by:

18.3.1 serving it personally at, or sending it by post to, your nominated contact address listed on the Lymbase Account; or
18.3.2 sending it to you via other electronic methods of communication using contact details listed on the Lymbase Account (including text messages).

18.4 Where a notice is served personally, service of the notice is taken to be effected when delivered. Where a notice is sent by post, service of the notice is taken to be effected on the fourth day after the date of postage. Where a notice is sent by electronic mail, or through other electronic means, service of the notice is taken to be effected on the day after the day on which it is sent, unless we receive notification that delivery has failed.

18.5 You consent to us using the contact details you have provided to us to:

18.5.1 contact you on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless you have notified us that you do not wish to receive such communication); and/or
18.5.2 contact you in relation to the Lymbase Account and/or the Lymbase Application.

18.6 You acknowledge that we (or any third party providing services on behalf of us) may monitor or record telephone conversations or electronic communication for quality control and training purposes or for Lymbase’s own protection. Lymbase does not provide any guarantee that any such monitoring or recording will be retained or retrievable.

19. GENERAL

19.1 System Outages: Access to the Lymbase Application or the Lymbase Applications may occasionally be unavailable or limited due to hardware or software failure or defects, overloading of system capacity, damage from natural events or disasters or disruptive human activity, interruption of power systems, labour shortages or stoppages, legal or regulatory restrictions as well as other causes outside of our control.

19.2 This Agreement is governed by the law in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia.

19.3 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

19.4 The obligations of confidentiality and protection of Intellectual Property Rights shall survive termination of this Agreement.

20. SCHEDULE 1

Acceptable Use Policy

1. Lymbase makes available its Lymbase Application to a number of clinicians and users.
2. It is important for Lymbase’s users to be fully informed about their responsibilities with respect to use of the Lymbase Application. Health data is considered sensitive information and is required to be collected and stored to a higher standard pursuant to privacy legislation. Therefore, adherence to this acceptable use policy is a strict requirement of the use of the Lymbase Application. This acceptable use policy should also be brought to the attention of all users within an organisation to ensure there is no inadvertent breach of data privacy requirements (for example, printing documents in an insecure environment, viewing data on computers in public places).
3. The purpose of this Acceptable Use Policy is to define those responsibilities in plain English for Lymbase’s users.
4. This Policy recognises the fact that no one owns or controls the internet. Lymbase does not have the ability to monitor and control all of the activities of our users, and Lymbase does not intend to actively screen, review, censor, edit or take responsibility for the activities or content of its users. Lymbase’s uses, and not Lymbase, are solely responsible for and assume all liability relating to their internet activities, including:

(a) All aspects of the user’s business;
(b) All technology, content and data provided by or through a user’s use of the Lymbase Application;
(c) All results obtained from using the Lymbase Application;
(d) Compliance with all applicable laws and governmental regulations regarding the user’s business or use of the Lymbase Application;
(e) Use of the Lymbase Application by the users;
(f) Compliance with this Acceptable Use Policy by the users.

5. Activities conducted on the internet are subject to many of the same laws and regulations applicable to the offline environment. In addition, a user’s activities on the internet may affect other internet users, Lymbase, its suppliers, or the safety or security of the Lymbase Application. Consequently, Lymbase’s users must exercise a high degree of judgement and responsibility with respect to their use of the Lymbase Application, including the responsibility to comply with this Acceptable Use Policy.
6. Users will violate this Policy when they or their affiliates engage in any of the following activities:

(a) Using the Lymbase Application to violate any law, statute, ordinance or regulation governing the user’s business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, child pornography, obscenity, trade in firearms, spamming, privacy, data transfer, and telecommunications;
(b) Using the Lymbase Application in a manner which presents a material security risk or will interfere materially with the continued operation of a data centre or the Lymbase Application;
(c) Using the Lymbase Application in a manner that infringes another’s copyrights, patents, trademarks, service marks, trade names, trade secrets or other intellectual property rights or rights of publicity, including failing to obtain all required permissions to receive, upload, download, display, distribute, or execute programs or perform other works or derivative works protected by intellectual property laws or removing or altering applicable copyright, trademark or patent notices;
(d) Using the Lymbase Application in a tortious manner, including without limitation engaging in libel, defamation, harassment, misappropriation of trade secrets, intentional misrepresentation or fraud, or publication of private information without the permission of the person(s) involved;
(e) Introducing viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and/or
(f) Intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses, in violation of applicable law; using the Lymbase Application to gain illegal or unauthorised access to other computers or networks through hacking or other means; assisting in or permitting any persons to engage in any of the activities described above.

7. Upon becoming aware of harmful activity, Lymbase reserves the right to take remedial action, up to and including termination of your use of the Lymbase Application. You agree to cooperate with Lymbase in any reasonable corrective action that Lymbase deems necessary to ensure compliance or prevent further harm. Failure to cooperate with such corrective or preventive measures is a violation of this Policy.
8. By using the Lymbase Application, you agree to comply with this Policy and also agree to indemnify Lymbase against any claims by third parties arising from violation of this Policy. Lymbase reserves the right to make changes to this Acceptable Use Policy at any time, and any changes will be effective immediately.
9. Continued use of the Lymbase Application following notification of any changes shall constitute acceptance of the changes.
10. SCHEDULE 2

Patient Consent Form

{{user}} at {{clinic}} is requesting to store your patient information on Lymbase.

Lymbase acts like a medical record for your lymphoedema. It stores your information only to assist your clinician in treating you. If you consent to see another clinician within the same clinic, Lymbase will allow that clinician to also see your previous history.

Lymbase may use your measurement data to assist in finding compression garment wear that will fit you.

Lymbase does not send your data anywhere else or share it with any other party and has undergone rigorous security checks to ensure it is stored safely and securely.

Lymbase provides summarised de-identified data for the purposes of research which aims to improve outcomes for patients with lymphoedema. Data sets used for research do not include any personally identifiable data.

To give permission for your data to be stored in Lymbase and used for research purposes, please click here.
If you have any questions, please contact us.

You can withdraw your consent at any time by contacting us via [email protected].