TCMS Online - Terms of Service

TENA® CONTINENCE MANAGEMENT SYSTEM
TERMS OF SERVICE
(version 2.0)

THIS IS A BINDING AGREEMENT between Essity Australasia Pty Ltd ABN 55 005 442 375 (Essity) and the Subscriber (you). In consideration of your access to and/or use of the System, you agree to be bound by and abide by the terms and conditions set out in these Terms of Service. By using the system the person doing so warrants that he or she is duly authorised to enter into these Terms of Use on behalf of the Subscriber.

1. DEFINITIONS
In these Terms of Service:

Administrator means the User who is authorised by Essity to access and use the System for the purpose of administering, managing and monitoring the use of the System by other End Users.
Administrator Account means the user account created by (or on behalf of) Essity for use by the Administrator.
Customer Data means data which the Administrator or an End User may upload to the System from time to time.
End User means the Administrator and each person who is authorised by the Administrator to access and use the System.
Intellectual Property Rights means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential (together with any application or right to apply for registration of any of the rights referred to in this paragraph).
ISP Services is defined in section 5.1.
Privacy Policy has the meaning given to it in section 10.2 of these Terms of Service.
Product Recommendations means recommendations for SCA products provided by the System from time to time based on the Customer Data.
Subscriber means the organisation who is given access to the System by Essity and whose details are recorded within the Administrator Account.
System means the Tena Continence Management System, which system is provided by Essity to you via the website located at tcms-online.com.

2. ESTABLISHMENT OF ADMINISTRATOR ACCOUNT

2.1 Setup. Essity will establish an Administrator Account for your use. You may use the Administrator Account to set up one or more End Users.
2.2 Accuracy. It is your responsibility to inform Essity of any changes to the information comprised in the Administrator Account and each other End User account. You may do this at any time by accessing the applicable account administration page on the System.
2.3 Obligations. Essity may, in its absolute discretion, close your Administrator Account or any other End User account if:
(a) you breach these Terms of Service;
(b) Essity considers that such closure is necessary in order for Essity to comply with its obligations at law.
2.4 Conditions. You must:
(a) comply with all reasonable directions issued by Essity regarding your (and each End User's) use of the System; and
(b) ensure that each End User who accesses or uses the System:
(i) is properly trained in the operation of the System; and
(ii) complies with these Terms of Service.
2.5 Access and usage restrictions. You must not:
(a) allow any person (other than authorised End Users) to access or use the System for any purpose without Essity's prior written consent;
(b) modify, add to, adapt, delete or amend any part of the System without Essity's prior written consent;
(c) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the System, or any adaptation, modification or derivative of all or part of the System;
(d) reverse engineer, disassemble, or decompile any software forming part of the System, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(e) use the System:
(i) for any unlawful purpose; or
(ii) in a manner than contravenes any applicable laws;
(f) remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the System;
(g) copy or download, in a systematic manner, any content, graphics, video, text or animation from the System, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any End User to do so); or
(h) directly or indirectly, introduce or permit the introduction by your personnel (including any End User) of any virus, worm, trojan or other malicious code into the System, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the System.
2.6 Responsibility for End Users
(a) You must ensure that the Administrator keeps his or her username and password confidential and secure.
(b) You:
(i) agree that you will be responsible and liable for the acts and omissions of each End User in connection with the System and this agreement as if they were your own acts and omissions; and
(ii) accept all liability for any unauthorised use of any username and password issued to any End User (other than any unauthorised use resulting from any negligent act or omission legally attributable to Essity).
(c) You must ensure that each End User does not use the System:
(i) for any unlawful purpose; or
(ii) in a manner than contravenes any applicable laws.

3. NO GUARANTEES

3.1 No guarantee of access. You acknowledge and agree that to the extent possible under the law, and subject to section 8.3, Essity makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the System or any internet service provider (ISP) Services. Essity will not be liable if the System, or any information obtained in relation to it, is inaccurate, outdated or incorrect, or if the System or ISP Services are unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Essity's third party service providers);
(c) maintenance or repairs carried out by Essity or any third party service provider in respect of any of the systems used in connection with the provision of the System or the ISP Services;
(d) any events beyond Essity's control; or
(e) services provided by third parties ceasing or becoming unavailable.
3.2 No guarantees in relation to Customer Data. You acknowledge and agree that to the extent possible under the law, and subject to section 8.3, Essity makes no representations, warranties or guarantees in relation to the integrity of the Customer Data or length of time for which Customer Data will be retained by Essity.

4. GST

4.1 Imposition. If Essity makes a supply under or in connection with these Terms of Service on which GST is imposed (not being a supply the consideration for which is specifically described in the Proposal as GST inclusive):
(a) the consideration payable or to be provided for that supply under these Terms of Service but for the application of this section (GST exclusive consideration) is increased by, and you must also pay to Essity, an amount equal to the GST payable by you on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to Essity by you without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
4.2 Reimbursements. If a payment to a party under these Terms of Service is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

5. YOUR RESPONSIBILITIES

5.1 ISP Services. To use and access the System, you must have access to an account for the provision of internet services (ISP Services) with an ISP in Australia. Your ISP (and not Essity) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including without limitation the use of the System using the ISP Services.
5.2 Information. You agree to provide all information required to enable Essity to provide the services comprised in the System. You must ensure that all such information is accurate and complete. Essity will not be liable for any loss or damage arising from any inaccuracy, omission or other defect in any such information (including in any Customer Data).
5.3 Compliance. You must comply with any reasonable directions of Essity from time to time in relation to your access to or use of the System. In addition, you must use the System in good faith, and must at all times comply with these Terms of Service and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the System (including, without limitation, all applicable privacy laws).
5.4 Privacy. Without limiting the generality of section 5.3, you must ensure that you obtain and maintain all necessary consents to collect the Customer Data and store and process the Customer Data within the System.

6. RESTRICTIONS ON USE

6.1 Restrictions. You must not:
(a) use the System or the System for any purpose other than as permitted by these Terms of Service;
(b) remove or tamper with any copyright notices on the System;
(c) disassemble, decompile, reverse engineer, or create derivative works or functionally equivalent software from the System (except to the extent permitted by Division 4A of Part III of the Copyright Act 1968 (Cth));
(d) disassemble, decompile, reverse engineer, or create derivative works from the System;
(e) copy or download, in a systematic manner, any content, graphics, video, text or animation from the System, or communicate or otherwise distribute such systematically obtained content, graphics, video, text or animation; or
(f) incorporate the System in any product to be made available commercially (unless Essity expressly agrees otherwise with you).
6.2 Disruption. You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan or other malicious code into the System, or in any other manner whatsoever corrupt, degrade or disrupt the System.
6.3 Unlawful, unauthorised or dangerous use. You must not (nor permit a third party to) submit any data or information to the System, nor otherwise use the System:
(a) to engage in any activity which breaches any law, infringes a third party's rights, or in a manner which interferes with the rights of any other person;
(b) to infringe the Intellectual Property Rights (including trade marks and copyright) of Essity or any third party;
(c) in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal; or
(d) in any way that constitutes misuse, or resale or other commercial use, of the System or any associated materials.
6.4 Misuse of the System. Without limiting section 6.3, you must not use the System for any purpose other than as described under these Terms of Service.

7. LICENCE

7.1 Customer Data. You grant to Essity an irrevocable, perpetual, non-exclusive, worldwide, royalty-free licence to use, reproduce, modify, adapt and communicate the Customer Data (and all data and information comprised in the Customer Data), and to sublicense third parties to do those things, to enable Essity:
(a) to operate the System (including providing Product Recommendations); and
(b) to perform statistical analysis relevant to Essity's business purposes.
You warrant to Essity that you have all rights necessary to grant this licence.

8. LIABILITY

8.1 Disclaimer. You acknowledge and agree that any Product Recommendations made by the System are an estimate only of goods or services which may be required by you, and should not be relied upon as the sole basis of your decision making in respect of the type and quantity of goods or services you may require in order to meet your needs.
8.2 Indemnity. You indemnify Essity (and all its subsidiaries, employees and officers) and will keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising from any claim by a third party arising directly or indirectly out of or in connection with:
(a) your access to or use of, or any End User's access to or use of, the System;
(b) any breach by you of these Terms of Service; and
(c) (without limiting the generality of paragraph (b)) any breach by you of section 5.4.
8.3 Consumer guarantees. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Essity are excluded under these Terms of Service. However, if a supply under these Terms of Service is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in these Terms of Service excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits Essity to limit its liability, then Essity's liability is limited to (at Essity's option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
8.4 Exclusion of liability. Subject to section 8.3, Essity excludes liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise (Losses) suffered or incurred by any person:
(a) in connection with or in any way relating to the System, including:
(i) in connection with any disruption to or unavailability or failure of the System or interference with or damage to computer systems or other electronic devices;
(ii) in connection with errors, omissions or inaccuracies contained in any information published on the System or supplied by Essity to you via email or otherwise (including, without limitation, any Product Recommendations);
(iii) as a result of any fraudulent use, misuse or misappropriation of any End User account; or
(iv) as a result of any act committed by another person in connection with your (or any End User's User's) use of the System;
(b) arising from any circumstance beyond its control; and
(c) otherwise under or in connection with these Terms of Use.

9. TERMINATION

9.1 Termination for breach. Where you have breached any provision of these Terms of Service, and without prejudice to any other rights or remedies, Essity may by written notice immediately terminate these Terms of Service or the provision of any System, without any liability to you. This will include termination of your Administrator Account and all End User accounts.
9.2 Termination without cause. Essity may terminate your access to and use of the System without cause by giving you 14 days prior written notice.
9.3 Survival. Sections 8, 10 and 11 survive termination of these Terms of Service for any reason.

10. CONFIDENTIALITY AND PRIVACY

10.1 Confidentiality. Neither party will disclose to any third party, without the prior written consent of the other party, any confidential information received from the other party in connection with the use of the System. Essity's confidential information includes its methodologies and tools. The obligations in this section 10:
(a) do not limit in any way Essity's (or its sub-licensees') ability to exercise their licence rights granted under section 7; and
(b) do not apply to information which is or becomes generally available to the public (other than as a result of a breach of an obligation under this section), is independently developed by the recipient, or is required by law to be disclosed.
10.2 Privacy. Essity's privacy policy relating to information collected by Essity may be accessed by following the link labelled 'Privacy Policy' on the System, and forms part of these Terms of Service.

11. GENERAL

11.1 Assignment. You may not assign or transfer your rights under these Terms of Service, or attempt or purport to do so, without Essity's prior written consent (which may be given or withheld at our absolute discretion).
11.2 Force majeure. Neither party will be liable to the other for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control (including, without limitation, illness of our consultants).
11.3 Governing law. These Terms of Service are governed by and interpreted in accordance with the laws of the State of Victoria, Australia, and both of us submit to the jurisdiction of the courts of that State.
11.4 Severability. If any provision, or part of a provision, of these Terms of Service is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of these Terms of Service will be construed as if that provision or part did not form part of these Terms of Service. The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.
11.5 Variation. Essity reserves the right to revise and amend the Terms of Service in its discretion, as follows:
(a) if Essity considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Terms of Service (as applicable) on the System;
(b) if Essity considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the System describing the change.
Your continued use of the System after an amendment will mean that you agree to that amendment. You must stop using the System if you do not agree to an amendment.
11.6 Entire agreement. These Terms of Service are the entire agreement between us on its subject matter and supersede any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).