MonitorYou Terms and Conditions – Business Customers

ABOUT THESE TERMS
1. Trajan Scientific Australia Pty Ltd ACN 161 314 969 (Trajan, us, we or our) provides the ‘MonitorYou’ remote dried blood collection and sampling kits (Products) and analytical biomarker assessment, monitoring and related services (Services).
2. These Terms and Conditions (Terms) apply to business customers who purchase our Products and Services for re-sale or supply to Consumers (whether directly or through their Third Party Customers) (Business Customers). We have separate terms and conditions which apply to the use of our Products and Services by Consumers: MonitorYou Terms and Conditions – Consumers (the Consumer Terms).
3. Capitalised terms used in these Terms are defined in clause 14.
4. These Terms set out the basis on which Business Customer purchases our Products and Services or accesses and uses our Website. By purchasing our Products and Services or accessing and using the Website, Business Customer agrees to be bound by these Terms, as amended from time to time, together with any additional terms (Special Conditions) specified in the Quotation issued by Trajan to Business Customer. In the event of any conflict between the Terms and any Special Conditions, the Special Conditions will prevail to the extent of the conflict.
5. We continually seek to improve our services and processes. Given this, we may need to update these Terms or the Consumer Terms to accurately reflect how we conduct our business, and we will publish any amended version of the Terms or Consumer Terms on our Website or otherwise provide written notification to Business Customers. Any amended version will apply to Business Customer’s purchase of our Products and Services or use of our Website from the date of publication or notification.
6. If Business Customer does not agree to these Terms, Business Customer must not proceed to purchase or re-sell or supply any of our Products or Services or access or use the Website.
RESALE OR RE-SUPPLY OF PRODUCTS AND SERVICES
1. Business Customer is solely responsible for its re-sale or supply of the Products and Services to Third Party Customers or directly to Consumers, including without limitation, complying with all applicable legal and regulatory requirements, including those relating to consumer protection, privacy, and therapeutic goods legislation.
2. Business Customer is responsible for any representations or information it makes or provides to Third Party Customers, Consumers or any other third parties in connection with the Products and Services. Business Customer must not represent or promote the Products and Services as capable of being used for any purpose other than the intended purpose for the Products and Services (as set out in these Terms).
3. If Business Customer is re-selling the Products and Services to a Third Party Customer, Business Customer must ensure that it has a written agreement with the Third Party Customer which requires the Third Party Customer to agree to comply with these Terms as if it was Business Customer (other than terms and conditions in these Terms which can reasonably be understood as only applying to Business Customer). Business Customer is liable to Trajan for any breaches of these Terms by a Third Party Customer.
4. Business Customer is not permitted to re-sell or supply our Products and Services for use by:
  1. any person other than to a Consumer who has registered for a Subscription as set out in clause 3(a) below;
  2. any Consumer under the age of eighteen (18) years old; or
  3. any Consumer outside of Australia.
5. Business Customer must:
  1. ensure that it has obtained and maintains all relevant licences, permissions, authorisations, consents and approvals, and complied with all relevant laws, in order to re-sell, supply, offer for sale, promote or advertise our Products and Services;
  2. immediately notify Trajan in writing if it become aware of any actual or potential misuse of our Products or Services or the Website, including any breach of these Terms or the Consumer Terms.
  3. in re-supplying, reselling, offering for sale, promoting or advertising our Products and Services:
    1. not infringe any person’s rights, including intellectual property and proprietary rights, rights of confidentiality or contractual rights; and
    2. not breach any laws, regulations or codes of conduct, or engage in any conduct that encourages or assists in such breaches.
SUBSCRIPTIONS AND REGISTRATION
1. We offer our Products and Services to Consumers on a subscription basis. To enable a Consumer to register for a Subscription as part of a program being offered by Business Customer:
  1. We will work with Business Customer (and/or Third Party Customer where relevant) to set up a registration form (for example, a landing page on the Website or on a Business Customer platform) (the Registration Form);
  2. Consumers who are approved Business Customer (or Third Party Customer where relevant) to register for a Subscription will be required to enter their details in the Registration Form; and
  3. once a Consumer has completed the Registration Form, and their registration has been accepted by Trajan, we will activate the Consumer’s Subscription.
2. Business Customer acknowledges and agrees that it is responsible for ensuring that only Consumers who are approved by Business Customer (or Third Party Customer where relevant) proceed to register for Subscriptions in according with clause 3(a) above.
3. Business Customer may wish to specify a maximum number of Consumers who can register for a Subscription (the Subscription Cap). If the Subscription Cap is included in a Quotation issued to Business Customer under clause 4.1 below or is otherwise agreed in writing by Trajan, Trajan will not allow Consumers to register for Subscriptions once the Subscription Cap has been reached (unless otherwise agreed in writing with Business Customer).
4. Business Customer acknowledges and agrees that:
  1. for Consumers who register for Subscriptions, the Products and Services will be provided to Consumers under the Consumer Terms;
  2. Business Customer confirms that it understands and agrees to the application of the Consumer Terms;
  3. each Consumer will be required to agree to the Consumer Terms at the time they register for a Subscription using the Registration Form; and
  4. Business Customer will not do or direct or assist a Consumer to do anything which would put a Consumer in breach of the Consumer Terms.
5. We reserve the right to modify the Products and Services we provide as part of Subscriptions.
PURCHASE AND PAYMENT TERMS
1. Quotations and Purchase Orders
  1. From time to time on Business Customer’s written request, Trajan may issue a quotation for the purchase of Subscriptions which Business Customer may re-supply or re-sell to Third Party Customers or directly to Consumers under these Terms (Quotation). Each Quotation will specify relevant details such as:
    1. the Products and Services to be provided for each Subscription;
    2. the Subscription Interval for each Subscription;
    3. where applicable, the total number of Subscription Intervals for each Subscription;
    4. the Fees payable, including any non-refundable Establishment Fee (where applicable);
    5. how often Business Customer will be invoiced;
    6. where applicable, the Subscription Cap; and
    7. where applicable, the end date for the provision of Products and Services through Subscriptions (End Date).
  2. To agree to purchase Subscriptions in accordance with the Quotation, Business Customer must send an electronically transmitted order (the Purchase Order) to info@monitoryou.com which includes the Quotation reference number and details for invoicing.
  3. Trajan reserves the right to accept or reject any Purchase Orders placed by Business Customer at our discretion.
  4. Business Customer’s Purchase Order must not include or incorporate any terms or conditions that are additional, different or inconsistent with these Terms. Any Purchase Order placed by Business Customer shall be conclusively deemed to have been made subject to these Terms together with any Special Conditions specified by Trajan in the Quotation, irrespective of any contrary terms or conditions printed on or accompanying or incorporated in such Purchase Order.
2. Payment
  1. Upon receipt of a Purchase Order, Trajan will issue Business Customer with an invoice for any applicable Establishment Fee. We require payment of the Establishment Fee in full before we will dispatch any Products to Consumers.
  2. Business Customer will be invoiced quarterly in arrears for the Fees payable for the Products and Services supplied for Subscriptions during the invoice period, or as otherwise specified in Quotation or agreed in writing between Trajan and Business Customer.
  3. Business Customer must pay all invoices issued by Trajan within 30 days of the invoice date.
  4. All Fees are stated and payable in Australian dollars and are exclusive of GST (where applicable).
  5. If Business Customer fails to pay an invoice by its due date, we reserve the right to cancel its Purchase Order and/or Subscriptions that have been activated by Trajan as referred to in clause 3(a). If this occurs, we will not accept responsibility for any claims arising from our cancellation or our failure to provide a Product or Service.
  6. Business Customer is not entitled to set off the Fees against any sums owed or claimed to be owed by Trajan.
DELIVERY
1. We will send the Products to the current delivery address that is nominated by each Consumer when they register for a Subscription or as updated from time to time and notified to Trajan. If Business Customer is providing Trajan with the address details for each Consumer, Business Customer is responsible for ensuring that Trajan is provided with correct and up to date details. Business Customer acknowledges and agrees that we will not accept responsibility for any claims arising from unsuccessful attempts to deliver the Product to a Consumer if their delivery address was incorrect at the time we dispatched the Product.
2. We send Products using standard Australia Post or equivalent delivery services.
3. On rare occasions when we are temporarily out of stock of Products, we will contact both Business Customer and the relevant Consumer(s) by telephone or email and advise when the Product is expected to be available for delivery.
4. We may (in our absolute discretion) deliver the Products in any number of shipments.
5. We are not liable for any Loss arising from any delay in delivery of the Products.
6. Business Customer must promptly notify us on becoming aware that a Product has not been delivered according to the applicable Subscription Interval.
7. The delivery arrangements set out in this clause are subject to any different arrangement for the delivery of the Products as may be agreed in writing between Business Customer and Trajan.
RESULTS
Business Customer acknowledges and agrees that:
1. In relation to the results generated from providing our Services in relation to a Sample (Results), Trajan will make the Results available directly to the Consumer, unless it is agreed in writing between Trajan and Business Customer that Trajan will provide the Results to Business Customer who will then make the Results available to the Consumer or there is an alternative arrangement for the return of Results. If it is agreed that Business Customer will provide the Results to the Consumer or there is an alternative arrangement, Business Customer must notify Consumer of the arrangements for such provision of the Results.
2. Business Customer acknowledges that:
  1. the Results are not medical advice and are not intended to manage, diagnose, advise on or treat any medical condition or disease;
  2. the Results are informational only; and
  3. it is strongly recommended that Consumer only seeks medical advice from a registered medical practitioner.
3. Business Customer must ensure that all information and representations that Business Customer makes to a Consumer in relation to the Results are consistent with the matters acknowledged in clause 6(b).
4. Neither Trajan nor Business Customer will share, disclose or provide any Third Party Customer with a copy of the Results.
5. On request, Trajan may provide Business Customer with information in the form of aggregated, de-identified data on a quarterly basis (or at such other intervals as may be agreed in writing) regarding the use of our Products and Services by Consumers who have registered for Subscriptions as part of the program being offered by Business Customer. Business Customer acknowledges that Trajan will only provide such data to Business Customer where Trajan considers the disclosure to be permissible under applicable laws including the Privacy Act. In relation to any such data provided by Trajan, Business Customer may share such aggregated, de-identified data with the relevant Third Party Customer.
TERM, TERMINATION AND CANCELLATION
1. Term of a Purchase Order
  1. Where the Quotation issued by Trajan includes an End Date, the Purchase Order placed by Business Customer (and all current Subscriptions activated under that Purchase Order) will terminate on the End Date, unless it is cancelled earlier in accordance with this clause.
  2. Where the Quotation issued by Trajan does not include an End Date, the Purchase Order placed by Business Customer (and all Subscriptions activated under that Purchase Order) will continue until such time as it is cancelled in accordance with this clause.
2. Cancellation of a Subscription
  1. Trajan can suspend or cancel a Consumer’s Subscription at any time, in our absolute discretion, and we will provide Business Customer with written notification of any such suspension or cancellation.
  2. Business Customer can cancel a Consumer’s Subscription at any time by contacting the MonitorYou Customer Service team (see contact details in clause 15 below). Business Customer acknowledges that it cannot suspend a Consumer’s Subscription.
  3. Consumers may cancel their Subscription at any time in accordance with the Consumer Terms.
3. Cancellation of Purchase Order
  1. All Purchase Orders submitted by Business Customer are final and non-cancellable other than in accordance with this clause.
  2. Trajan may cancel or suspend a Purchase Order (and the current Subscriptions activated under that Purchase Order) at any time in our absolute discretion, on notice to Business Customer.
  3. Business Customer may cancel a Purchase Order (and the current Subscriptions activated under that Purchase Order) on thirty (30) days’ written notice to the MonitorYou Customer Service team (see contact details in clause 15 below) or such other cancellation period as may be specified in the relevant Quotation.
4. Consequences of suspension or cancellation
  1. Where a Purchase Order or a Subscription is suspended or cancelled in accordance with this clause 7, Business Customer must pay for:
    1. all Products dispatched by Trajan prior to the End Date or effective date of cancellation; and
    2. all Services that have been initiated following receipt by Trajan of a Sample prior to the End Date or effective date of cancellation.
  2. Where a Purchase Order is cancelled by Business Customer in accordance with this clause 7, Trajan may, based on the volume of Products ordered, require Business Customer to pay for Products that have been manufactured but not yet dispatched on terms to be set out in Trajan’s Quotation or otherwise agreed in writing with Business Customer.
  3. Where Trajan receives any Sample after the End Date or effective date of suspension or cancellation, Trajan will not use that Sample to initiate any Service unless otherwise agreed in writing with Business Customer.
DISCLAIMER AND LIMITATION OF LIABILITY
1. Results and Website information – not medical advice
  1. We do not provide any medical advice, including through our Website or the Results. No information, Product or Service provided by us is intended to manage, diagnose, advise on or treat any medical condition or disease. The Results are informational only. We strongly recommend that Consumers only seek medical advice from a registered medical practitioner.
  2. Trajan is not liable for any Loss to Business Customer in connection with representations made by the analytical laboratory with respect to the Results.
2. No warranties regarding access or security of the Website
  1. While we take all reasonable steps to limit any interruptions, Business Customer acknowledges and agrees that we do not promise continuous or error-free access to the Website including any Registration Form on the Website. However, we will use our reasonable endeavours to minimise the occurrence and duration of any outages, downtime (for planned maintenance or otherwise) or other causes of inaccessibility to the Website.
  2. We make no representation and provide no warranties that the Website including any Registration Form on the Website is free of any viruses, including any file, program or program code designed to attach itself to, hide itself within or send instructions to, other files, computers, programs or program code to cause malfunctions, errors or loss or corruption of data.
3. No liability for Loss
  In no event will we be liable to you for any Loss whatsoever arising out of:
  1. any reliance upon any material contained on the Website or incorporated by reference on the Website by Business Customer, a Third Party Customer or Consumer;
  2. use of, access to, or inability to use or access the Website by Business Customer, a Third Party Customer or Consumer;
  3. any material or information (in any form) provided by Business Customer or by a Third Party Customer to any Consumer in relation to the Products or Services;
  4. Business Customer’s purchase, re-supply or re-sale of any Product or Service to a Third Party Customer or Consumer;
  5. any information or lack of information provided by us in connection with any Products or Services, including the Results; or
  6. any use or misuse of a Product, Service or the Website by Business Customer, a Third Party Customer or Consumer.
4. Indemnity
  We disclaim all liability and Business Customer indemnifies and holds us and our directors, officers, employees, agents and contractors (together, those indemnified) harmless from and against any Loss incurred or suffered by those indemnified in connection with:
  1. a breach of these Terms by Business Customer or a Third Party Customer;
  2. a breach of the Consumer Terms by any Consumer who has registered for a Subscription as part of a program being offered to Consumer by Business Customer or a Third Party Customer;
  3. any personal injury to or death of persons or damage to or loss of real or personal property caused or contributed to by Business Customer or a Third Party Customer;
  4. any acts of fraud or wilful misconduct or reckless act or omission by Business Customer or a Third Party Customer;
  5. any allegation or claim brought against any of those indemnified by a third party that is caused by:
    1. any negligent act or omission by Business Customer or a Third Party Customer;
    2. any misuse, misinterpretation or unauthorised use of, or errors or omissions in, the Results; or
    3. use of the Website, Services or Products in breach of any law, including any applicable privacy laws by Business Customer or a Third Party Customer.;
CONSUMER LAW REMEDIES
1. Under the Australian Consumer Law, consumer guarantees apply to our Products and Services that cannot be excluded, restricted, or modified by these Terms.
2. For major failures with our Products or Services, Business Customer is entitled:
  1. to cancel a Subscription;
  2. to a refund of any unused portion of a Subscription at the time of cancellation, or to compensation for the reduced value of the Services.
3. A Product will be defective if:
  1. it is not of merchantable quality;
  2. it is not fit for any purpose for which it is acquired by Business Customer;
  3. it does not conform to any sample, specification, or other description given by Trajan in relation to the Product; or
  4. it does not comply with any consumer guarantee or implied warranty applicable to the Products that cannot be excluded (including pursuant to the Australian Consumer Law).
4. Our Services will be defective if they:
  1. are not of a reasonable standard, quality, value or grade; or
  2. do not comply with any consumer guarantee or implied warranty applicable to the Service that cannot be excluded (including pursuant to the Australian Consumer Law).
5. If Business Customer believes a Product or Service purchased from us are defective (as defined in clause 9(c) or 9(d) as applicable), Business Customer must notify us in writing within forty-eight (48) hours of delivery of the Product or identification of the defective Service using the contact details set out in clause 15 below. To return the Product on this basis, Business Customer must send the defective Product back to us via Australia Post standard domestic letter service in its original condition and packaging within seven (7) days of notifying us. If Business Customer does not give us notice (and, if applicable) send the Product back to us within these timeframes and in its original condition, the Services and/or Product is presumed to have been provided without defect.
6. If the Product returned to us in accordance with clause 9(e) is found to be defective, we will reimburse Business Customer within thirty (30) days for the cost of returning the defective Product to us via Australia Post standard domestic letter service. The process of reimbursement will be set out in an email from us to Business Customer’s nominated email address.
INTELLECTUAL PROPERTY
1. Intellectual Property
  1. Except as expressly provided in these Terms, no ownership is transferred, or other rights granted, in the Intellectual Property of either Trajan or Business Customer.
  2. Business Customer, Third Party Customer or other third party (as relevant) will retain all rights in material that is provided to Trajan for use on the Registration Form or for other purposes in connection with these Terms, including logos and other content, data or material (the Customer Content).
  3. Subject to clause 10.1(b) above in relation to Customer Content, Trajan owns and retains all rights (including Intellectual Property) in and to the Website and our Products and Services unless otherwise indicated. For clarity:
    1. Copyright in all material contained on the Website, including but not limited to text, graphics, drawings, images, photographs, illustrations, diagrams, buttons, icons and page layouts, subsists under, and is protected by, copyright laws and is owned by Trajan or used by Trajan under licence.
    2. The words ‘MonitorYou’ and all other trade marks, domain names, product and service names, slogans and logos displayed on the Website comprise Trajan’s or its licensors’ trade marks. Business Customer is not permitted to use any of these trade marks without the prior written consent of Trajan or its relevant licensors.
    3. Intellectual Property developed by Trajan under or in connection with these Terms or changes, additions or improvements to Products or Services or the Website, immediately and directly vests in Trajan upon its creation and will form part of Trajan’s Intellectual Property.
  4. Business Customer must do all acts and things necessary to give effect to this clause.
2. Licence
  1. In relation to all Customer Content, Business Customer hereby grants to Trajan a non-transferrable, non-exclusive and royalty free licence to reproduce, publish and otherwise use the Customer Content for the purposes of providing the Website, Products and Services under these Terms.
  2. Business Customer agrees that Trajan may use any feedback or information provided by Business Customer to Trajan for the purposes of changing, enhancing, improving or marketing the Website, Products or Services (with any changes, enhancements or improvements to be owned by Trajan).
  3. Business Customer represents and warrants that it has all the necessary rights to grant Trajan the licence referred to in clause 10.2(a) and that Trajan’s use of the Customer Content, feedback or information will not infringe the rights of any third party or breach any applicable law.
3. Liability
  Trajan disclaims all liability that may result from Business Customer’s unauthorised use or reproduction of any part of the Website, Products or Services, including in breach of third party’s Intellectual Property or applicable laws.
THIRD-PARTY WEBSITES
1. The Website contains links that enable access to third-party websites. These are provided for convenience only. While these links may contain helpful information, we do not have control over any third -party websites or their processes regarding privacy and protection of personal information and data. The fact that these links exist does not constitute an endorsement of those websites by us. We take no responsibility for the content on or the security of the linked websites (including any products or advertising on them).
2. Business Customer agrees that we are not responsible or liable for any Loss that Business Customer may suffer or incur due to any actions caused by information published on or collected by third- party websites or Business Customer’s use of, access to or inability to use or access any website linked to the Website.
PRIVACY
1. The MonitorYou Privacy Policy as amended from time to time (Privacy Policy) is incorporated into and forms part of these Terms.
2. In order to do business with Business Customer, provide access to and the functionality of the Website and provide our Products and Services, we may need to collect, use and disclose certain Personal Information.
3. Business Customer acknowledges and agrees that we will collect, use and handle any Personal Information (including Personal Information of Business Customer’s employees and Consumers) in accordance with:
  1. these Terms;
  2. our Privacy Policy; and
  3. applicable privacy laws, including the Privacy Act.
4. Business Customer must:
  1. comply with applicable privacy laws, including the Privacy Act in relation to any Personal Information that Business Customer collects, uses or discloses in connection with its use of the Website or any purchase or re-supply of our Products and Services; and
  2. only use or disclose Personal Information that is collected by us and disclosed to Business Customer for the primary purpose for which that information was collected and disclosed (being to facilitate sales of our Products and Services, enable use of the Website, or support the operation of our business).
5. Trajan and Business Customer will provide reasonable assistance to each other in relation to any privacy-related complaints or regulatory enquiries and, where applicable, notify the other party in circumstances where an actual or suspected eligible data breach (as defined in the Privacy Act) may have occurred in connection with Personal Information shared between the parties.
GENERAL
1. Severability
  If any provision of these Terms is found to be void, unlawful or unenforceable for any reason, then that provision will be severable from these Terms and will not otherwise affect the validity and enforceability of any remaining provisions.
2. Governing law
  Business Customer agrees that all matters relating to the use of the Website and purchase of any Products or Services, including all disputes, are governed by the law of Victoria, Australia, and Business Customer unconditionally submits to the exclusive jurisdiction of the courts of Victoria.
DEFINITIONS
In these Terms:
1. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act.
2. Business Customer has the meaning given to that term in clause 1(b).
3. Business Day means a day that is not a Saturday, Sunday or bank or public holiday in Victoria, Australia.
4. Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth).
5. Consumer means an individual who has registered for a Subscription as part of a program being offered by Business Customer to receive Products and Services for their own use.
6. Customer Content has the meaning given to that term in clause 10.1(b).
7. Consumer Terms means the terms and conditions under which the Products and Services will be provided to Consumers as referred to in clause 1(b).
8. End Date has the meaning given to that term in clause 4.1(vii).
9. Fees means all fees payable by Business Customer to Trajan for the Products and Services, including the Establishment Fee, as set out in the Quotation.
10. Intellectual Property means all intellectual property rights throughout the world, whether registered or unregistered, including rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and the right to apply for registration of such rights.
11. Loss means loss, damage, liability, charge, expense, outgoing payment or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
12. Party means a party to this Agreement;
13. Personal Information has the meaning given to that term by the Privacy Act.
14. Privacy Act means the Privacy Act 1988 (Cth).
15. Privacy Policy has the meaning given in clause 12(a).
16. Products has the meaning given to that term in clause 1(a)
17. Purchase Order has the meaning given to that term in clause 4.1(b)
18. Quotation has the meaning given in clause 4.1(a).
19. Registration Form has the meaning given to that term in clause 3(a)(i).
20. Results has the meaning given in clause 6(a).
21. Sample means a dried blood spot sample collected by a Consumer on a sampling card within our Products for the purpose of analysis as part of our Services.
22. Services has the meaning given to that term in clause 1(a).
23. Special Conditions has the meaning given to that term in clause 1(d).
24. Subscription means a subscription for the Services, which includes the Products required to deliver those Services.
25. Subscription Cap has the meaning given in clause 3(c).
26. Subscription Interval means the time intervals between our dispatch of Products during a Subscription, as specified in the Quotation.
27. Terms means these Terms of Service.
28. Third Party Customer means a third party to which Business Customer re-sells or supplies the Products and Services for subsequent re-sale or supply by Third Party Customer to Consumers.
29. Website means any website used by Trajan to market and sell the Products and Services, including the website www.monitoryou.com and any Registration Form on the Website.
CONTACT US

For any queries or to submit any notification or request under these terms, please contact the MonitorYou Customer Service team via:

E-mail at: info@monitoryou.com

Telephone at: (02) 6145 2147

Address at: 7 Argent Place, Ringwood, Victoria 3134 Australia

mht6545-1

MonitorYou Terms and Conditions – Business Customers

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