App Terms and Conditions
Firstcheck App – Terms and Conditions
To help in the early detection of skin disease, Firstcheck offers a digital health platform providing Customers with access to convenient and cost-effective advice (via smartphone and tablet) from registered clinicians with skin cancer expertise – and almost exclusively local and registered skin cancer doctors.
This service is new and different from conventional ways of accessing clinical care. As such, it makes sense for us to explain how the service works and to ensure that you are aware of its limitations.
- Platform Service: Firstcheck is a platform which Customers may choose to use to communicate with an independent doctor/clinician for a remote / virtual consultation.
- Specialities: The doctor / clinician (the medical expert) and Firstcheck (the tech expert) understandably each have quite different responsibilities. The clinician is independent from Firstcheck (not employed by, or offering services on behalf of, Firstcheck) but uses Firstcheck as a platform to provide services to the Customer. As a Customer, you may also seek the assistance of another third party health care provider (such as a nurse, pharmacist or other individual) to facilitate your use of the Firstcheck Service (either using their own device or yours) to facilitate your in-app consultation with a clinician. In doing so, such person is not providing any health services to you as Customer.
- Service Level: The remote consultations that occur via the Firstcheck platform are not the same as or a substitute for in-person medical consultations (whereby, for example, a full body skin check could be performed). In-person appointments, involving full body skin checks, remain the ‘gold standard’ and the best way to receive skin advice specific to each Customer. There are, understandably, some limitations to the remote consultations had with a clinician through Firstcheck. These limitations include:
- A discrete service: Firstcheck can only be used for the purpose of having a skin condition checked by a clinician. Firstcheck does not offer access to more comprehensive health care services.
- Not for emergencies: Firstcheck is not suitable for emergency or crisis situations. In a medical emergency, a person should dial the local emergency number.
- A phone is a phone / magnifiers: A smartphone/tablet/device is just that and Firstcheck’s magnifiers/ micrscopes are simple, but powerful, skin magnifying devices. While independent evaluations have confirmed that the Firstcheck devices are able to take images suitable for clinical triage or diagnosis, and it is registered as a medical device, Firstcheck makes no warranties or representations that any device is an equivalent or suitable substitute for the types of medical devices that a clinician may otherwise have access to, or generally about the device/s.
- Information provided: The better and clearer the information provided by the Customer, the better the advice the Customer will receive. When using Firstcheck, the Customer decides what photos and information the clinician receives. So:
- The clinician’s advice is based purely on the information received. This means that the clinician will or may not have as much information as would normally be available in an in-person appointment.
- In some cases, no triage decision, prognosis or clinical diagnosis will be possible. The clinician may receive inadequate and unclear information in the photos and posts provided.
- No guarantees can be offered about the accuracy of any advice provided and any advice received is a triage or diagnostic aid and can only be limited and provisional. You choose to use the Service voluntarily and accept full responsibility for following up, recognising that the clinician does not accept responsibility for following up with you.
- Photos alone risk not telling the full story and, by themselves, have the potential to lead to inaccurate, misleading or wrong findings. This risk is mitigated by prompting the Customers for other contextual information to complement the photos, guided by the information commonly collected in medical referrals. Notwithstanding, some risk remains.
Customers should maximise the value of the consultation by providing the best information possible.
- Remote Consultation: As mentioned, Firstcheck is not the same as or substitute for in-person appointments which remain the ‘gold standard’ by providing, among other things, the ability to receive a full body skin check. In an in-person appointment the health practitioner may access further information that may inform his or her response, enabling a better medical assessment and a clinical diagnosis, and the facilitation of a better overall health outcome. There may be other skin conditions on your body worthy of medical attention which you may overlook or choose not to submit to the clinician. You accept responsibility for deciding what to consult the clinician about and do not rely on any advice from any third party health care provider.
- Assisted consultations: You can also access Firstcheck in order to consult a clinician with the assistance of a third party health care provider. Where a third party health care provider facilitates the skin consultation for you (for example, a nurse or pharmacist (without limitation) submits a case on your behalf), that person acts as your agent and on your behalf and you consent to that and accept these terms and conditions in full. You acknowledge that you maintain responsibility for deciding what to submit in your skin consultation and do not receive or rely on any advice from that third party health care provider about what to get checked. You consent to that third party health care provider having access to the information provided and included in the skin consultation. If you provide an email address or identifying information in order to receive a copy of the information, you acknowledge that you become identifiable and consent to receiving information by those means (and that email systems used may not be secure).
Bearing all this in mind, Firstcheck does not claim to provide any health care or medical services directly to Customers and in light of the limitations inherent in Firstcheck and any remote dermatology assessment, Customers accept the responsibility for deciding whether to have a suitably qualified medical practitioner conduct a direct, in person, examination of their skin – and for following up on any advice received through the Service.
On behalf of the clinicians providing advice through Firstcheck, a summary of health consumer rights can be found on the health commissioner website. The extent of your rights will be defined by the discrete nature of the remote services provided through the Firstcheck platform.
- Improved access: Firstcheck wishes to improve public access to expert skin advice and to contribute to better health outcomes. We recognise that the lower our prices, the more accessible clinicians become to people. Firstcheck does not directly provide you with health care services but only a platform for you to receive those services. By choosing to use Firstcheck, you acknowledge and agree that Firstcheck is not providing you with health care and medical services and you accept the associated risks, and understand that in return you receive lower prices for your clinicians consultation through Firstcheck (and the many other benefits of the Firstcheck platform).
- Melanoma: Melanoma is a serious (and scary) disease and Firstcheck is committed to the fight against it. Customers are made aware that:
- No method of assessment (even in-person) can provide a 100% guaranteed detection of melanoma or other skin cancer.
- Melanoma and skin cancer can arise at any time from any area of normal skin or from an existing mole.
- You are the person solely responsible for performing regular examinations of your skin and for seeking advice on anything which is of concern, a.s.a.p.
Australian Medicare Bulk-Billed Consultation: Where your selected clinician offers the in-app price of $0, the clinician may opt to either report back to you via Firstcheck App and/or telephone you (via the telephone number supplied by you) to initiate a telephone consultation to talk through the clinical assessment and provide your results. Alternatively, the clinician may seek to co-ordinate a video consultation with you. In the case a telephone or video consultation, you may be asked to assign to the clinician your right to any payment of a related medicare benefit in connection with that telephone or video consultation and your clinician will agree to accept the assignment (of your right to any payment of a related medicare benefit) in full payment of the clinician’s fee for the service provided (i.e. the service would be bulk-billed and a Medicare Benefit Schedule Fee claimed by the clinician). Any such telephone or video consultation is a service independent of Firstcheck and is between you and the clinician. In accepting a telephone consultation, you acknowledge your limited ability to engage in a synchronised video consultation with your doctor in substitute for such a telephone consultation. You hereby accept this notice as a record of your acceptance of these arrangements and agree that these terms and conditions constitute a record of your agreement to the arrangements and that such a record has hereby been provided to you. These terms can be accessed anytime online or by request through https://firstcheck.me.
“Firstcheck” or “we” “us” or “our”, being Firstcheck Limited, a company registered in New Zealand
“User” or “you”, (being an individual or entity) being any user of any part of the Firstcheck Service including
“Customer” means a User that uploads photos/information to the Service
“Clinician” means a User that responds to a Customer photos/information uploaded to the Service (including, a clinician, doctor, dermatologist, nurse, as applicable, and without limitation).
“third party health care provider” means a health care provider (other than a clinician) who assists a person or Customer to use the Service by providing an Assisted Consultation (see below). The third party health care provider, who may be a nurse or pharmacist (without limitation), is not responsible for reviewing the skin condition or providing any advice about it.
- Service: Firstcheck provides a platform service (“Service”) through the web and through mobile applications which provides you with a unique, non-transferable, nonexclusive and nonsublicenseable right to do certain things:
- Consultations: The Service allows Customers to post photos/information about a skin concern. Clinicians are then able to post information in response. A clinician’s post in response is made available to that Customer. Customers pay the published fee.
- Assisted Consultation: This is where a person seeks the assistance of a third party health care provider (such as a nurse or pharmacist (without limitation)) to access the Firstcheck app in order to consult a clinician. The third party health care provider may use their own device to facilitate the Consultation on behalf of the person. Where the third party health care provider uses their own device to facilitate the Consultation, the third party health care provider assumes full and sole responsibility for providing the results of the Assisted Consultation to the person being assisted.
- Record Creation: The Service also allows Customers, without seeking a clinician’s response, to upload photos/information about a skin concern. In this way, Customers may create records for later reference and comparison purposes.
- Export/Email: The Service allows Users to use email programs to send and receive certain User information by email. The User may send the email through the User’s email system to themselves or a third party.
Australian Medicare Bulk-Billed Consultation: Where your selected clinician offers the in-app price of $0, the clinician may opt to either report back to you via Firstcheck App and/or telephone you (via the telephone number supplied by you) to initiate a telephone consultation to talk through the clinical assessment and provide your results. Alternatively, the clinician may seek to co-ordinate a video consultation with you. In the case a telephone or video consultation, you may be asked to assign to the clinician your right to any payment of a related medicare benefit in connection with that telephone or video consultation and your clinician will agree to accept the assignment (of your right to any payment of a related medicare benefit) in full payment of the practitioner’s fee for the service provided (i.e. the service would be bulk-billed and a Medicare Benefit Schedule Fee claimed by the clinician). Any such telephone or video consultation is a service independent of Firstcheck and is between you and the clinician. In accepting a telephone consultation, you acknowledge your limited ability to engage in a synchronised video consultation with your clinician in substitute for such a telephone consultation. You hereby accept this notice as a record of your acceptance of these arrangements and agree that these terms and conditions constitute a record of your agreement to the arrangements and that such a record has hereby been provided to you. These terms can be accessed anytime online or by request through https://firstcheck.me.
- Law Prevails: The Terms shall apply to the maximum extent permitted by law and shall be read subject to any minimum legal requirements.
- Electronic communications: You consent to receive communications from us electronically (you can inform us at any time if you no longer require such communications).
- User Email System: The User’s email system and email used is separate to the Service and Firstcheck is not responsible for User’s use of their email system relating to either the sending or receiving of information. Firstcheck does not offer or make any representation or warranty in connection with User’s email system or email systems generally, their internet service provider, or the suitability of those systems. User uses email in connection with the Service at User’s sole risk.
- Firstcheck Platform – Third-Party Content: The Service is a platform. Users, not Firstcheck, provide the content in posts. The clinicians determine their responses and posts. Clinicians are not employees or agents of Firstcheck but are independent Users of the Service providing advice to Customers. Clinicians and customers enter into an independent contract for services. Clinician, like Customers, are Users of the Service.
- Record Keeping: Clinicians are solely responsible for meeting any data or record keeping requirements relating to the health care services provided by the clinicians and shall not rely on Firstcheck.
- Customer-Clinician Exchanges: Firstcheck is not involved in the exchanges between Customers and clinicians and does not refer Users to or endorse or recommend any clinician. You understand and acknowledge that Firstcheck cannot and does not edit, modify, filter, screen, monitor, endorse or guarantee the content of posts or that you will be satisfied with any response. Firstcheck shall not be liable for any acts or omissions of clinicians, content in posts, or the availability or ability of clinicians to answer questions. Firstcheck does not check the quality of information being provided by Users. Notwithstanding the foregoing, Firstcheck reserves the right, but is not obligated, to refuse to post or to remove any content and/or remove any User’s access to the Service.
- Privacy / Confidentiality: Firstcheck takes reasonable steps to keep personal and sensitive information protected and secure against unauthorised access, unauthorised disclosure, interference, misuse and loss. As an electronic service connected to the internet, Firstcheck cannot guarantee that information will not in any circumstance by intercepted and read by third parties. Customers shall post photos to the Service such that they are unable to be identified in any way whatsoever by the photos themselves. Customer agrees that Firstcheck may treat any photos/information posted as not identifying the Customer. Where the Customer chooses to use email as part of the Service, the Service becomes only as secure as the internet based communications used by Users. Email communications are subject only to the security or other protections, if any, that such communications have independent of Firstcheck. Such communications are not encrypted by Firstcheck or otherwise subject to any Firstcheck security measures, beyond standard internet security measures. Firstcheck does not store any Customer payment information. You may make requests for any records about you held by Firstcheck in writing (refer to the Contact Us section of our website). Where the Customer seeks an Assisted Consultation with a third party health care provider, the Customer will be identifiable to the third party health care provider. The Customer consents to the third party health care provider collecting, storing and disclosing the Customer’s personal information for the purpose of using the Service.
- Registered clinicians: Firstcheck itself does not make any guarantee or warranty with respect to the qualifications or any particular level of expertise of clinicians or the quality of any clinician posts. The laws, regulations, other governing authorities, standards, practices and procedures that apply to a Customer’s particular question may differ depending on their location. Clinicians may be licensed, certified, educated, employed by or have experience in only particular jurisdictions. The (independent) services provided by clinicians are provided in New Zealand and Australia (only) by New Zealand and Australian registered medical clinicians.
- Restricted Activities: You agree that any content you provide on the Service, posts, and your use of our Service shall not: (a) be fraudulent or malicious, wilfully indecent, unauthorized, or inaccurate or misleading; (b) infringe any third party’s proprietary rights or rights of publicity or privacy or infringe or interfere with any other User’s use and enjoyment of the Service; (c) be illegal or violate any law, statute, ordinance, regulation or ethical code; (d) be competitive with Firstcheck or the Service; (e) be defamatory, trade libellous, offensive, unlawfully threatening or unlawfully harassing; (f) contain any viruses, Trojan horses, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (g) potentially create liability for us or cause us to lose (in whole or in part) the services of our internet service providers or other suppliers; (h) be for any use other than the business purpose for which it was intended; or (i) link directly or indirectly to or include descriptions of goods or services that are prohibited under the Terms or you do not have a right to link to or include. You may not consummate any transaction that was initiated using our Service that, by paying to us a fee, could cause us to violate any applicable law, statute, ordinance or regulation. Furthermore, you may not resell or make any commercial use of our system or the content on the Service without Firstcheck’s prior written consent.
- Suspension or Termination of Service: At any time, without notice, for any or no reason, Firstcheck reserves the right to refuse the Service to anyone, to modify and discontinue any portion or all of the Service, and to restrict, suspend and terminate User access.
- Charges: For posts requesting a clinician response, the Customer shall pay Firstcheck the published fee upfront by choosing an available payment method. There is no guarantee that the selected clinician will be able to respond, or respond within any guideline timeframe, and Firstcheck reserves the right (but not the obligation) to arrange for another clinician to respond. On payment of the coupon code prices, Firstcheck shall make available to you the applicable coupon codes. You are responsible for any use of your coupon codes.
- IP Ownership:
- User posts by customers and clinicians are non-proprietary. Firstcheck owns and retains all rights, title and interest in the Service, any content on the Service, and any intellectual property, and all elements and derivative works thereof (“Intellectual Property”). To the extent that ownership of such does not automatically vest in Firstcheck by virtue of these Terms or otherwise, you hereby transfer and assign, and agree to execute such further documents as may be required to transfer and assign, to Firstcheck all rights, title and interest in the Intellectual Property.
- You shall not modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Firstcheck Service, or assist any other person or entity in doing so. You acknowledge that all content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in listings, sponsor advertisements or email-distributed, commercially produced information presented to you by the Service, by Firstcheck, Users, or other content providers, is protected by copyrights, trademarks, service marks, patents or other intellectual property rights or other proprietary rights and laws. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way content available through the Service, including code and software for commercial purposes. For permission to use third-party materials appearing on the Service, please contact the copyright owner. You do not acquire ownership rights to any content, document or other materials viewed through the Service. The posting of information or materials on the Service does not constitute a waiver of any right in such information and materials.
- Licence: You grant to Firstcheck a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable (through multiple tiers) right to use, reproduce, display, adapt, edit, copy, modify, transmit, publicly perform, extract and create derivative works from, content that you have in your posts, in any media now known or not currently known. This right may be exercised by Firstcheck to the extent that it is able to under applicable law in order to provide the Service and for other purposes, noting that the information involved must be anonymised.
- No Endorsement of Non-Firstcheck Entity; No Relationship with Users: Firstcheck may endeavour to offer to its Users products and services offered by non-Firstcheck entities. Placement of information, logos, links or names of such non-Firstcheck entities on the Service does not constitute an endorsement or warranty of these entities, their products or services. You take full responsibility for a decision to visit or patronise any such entity and hold Firstcheck harmless from any liability arising from such actions. You further acknowledge that no relationship (such as partnership, agent, joint venturer, or employee) is created between you and Firstcheck or between any User (including, without limitation, Customers and clinicians) and Firstcheck by formation of these Terms or by your participation on the Service. It is the responsibility of the User to evaluate the accuracy, completeness and usefulness of any opinion, answer or other content available through the Service, from third parties or obtained from a linked service. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific opinion, answer, product, service, or other content.
- Release: Users are responsible for their acts and omissions and content placed on the Service. In the event that you have a dispute with one or more Users, then to the maximum extent permitted by law, you release Firstcheck (and our parents, subsidiaries, officers, directors, shareholders, employees, contractors, agents, joint venturers, consultants, successors and assignees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a resident in a jurisdiction which requires you to waive waivable rights to achieve the release stated above to the fullest extent, you hereby provide that waiver. You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our reasonable control.
- Exclusion of Warranties: Firstcheck Services and the Terms are provided on the express terms stated herein and otherwise on an “as is”, “as available” basis, and without any other warranty of any kind either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. No information or advice, whether oral or written, obtained by you from us through this service shall create any warranty, representation or guarantee not expressly stated in these Terms. Firstcheck does not represent or warrant that the service will be uninterrupted or error-free, that defects will be corrected, or that this Service or the server that makes it available, are free of viruses or other harmful components. Firstcheck does not warrant or represent that the use or the results of the use of the materials available through the service, from third parties or a linked service will be correct, accurate, timely, reliable or otherwise. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions shall apply to the maximum extent permitted by law. Under no circumstances will Firstcheck be liable for any harm, loss or damage caused by a User’s reliance on information or advice obtained through the service, from other Users, third parties (such as clinicians, professionals or others) or a linked service, or User’s reliance on any product or service obtained from a third party or a linked service. We will not be liable to you in respect of any loss or corruption of any data, database or software.
- Limitation of Liability: In no event shall Firstcheck, its parents, subsidiaries, officers, directors, shareholders, employees, contractors, agents, joint venturers, consultants, successors or assigns be liable for any indirect, special, incidental, consequential, punitive or exemplary damages (including but not limited to loss of business, profits, data, use, revenue or other economic advantage or anticipated savings), arising out of or in connection with Firstcheck or the Service or these Terms, based on any theory, even if advised of the possibility of such damages. The limitation of damages set forth above is a fundamental element of the basis of the bargain between us and you. This Service and would not be provided without such limitations. In no event will our liability, and the liability of our parents, subsidiaries, officers, directors, employees, contractors, and suppliers, to you or any third parties in any circumstance exceed the greater of (a) the agreed amounts paid by you to Firstcheck, or by Firstcheck to you, (as applicable) in the 6 months prior to the relevant action, or (b) NZ$100. The above limitations and exclusions shall apply to the maximum extent permitted. You agree to mitigate any of your losses.
- Timing: You and Firstcheck agree that any action arising out of or related to this Service must commence within six (6) months after the cause of action arose (except for causes of action arising out of Users’ responsibilities in the Indemnification section below); otherwise, such cause of action is permanently barred.
- Indemnification: You agree to indemnify and hold Firstcheck, its parents, subsidiaries, officers, directors, shareholders, employees, contractors, agents, joint venturers, consultants, successors and assigns harmless from and against all losses, costs, liabilities, damages and expenses whatsoever (including, without limitation, reasonable attorneys’ fees), and any claims whatsoever (asserted by any third party or otherwise) that are in any way due to, or arising out of, or in any way related to, your use of the Service or these Terms (including, without limitation, the unavailability of the Services) or your breach of the Terms or your negligence. Firstcheck is not liable for any personal injury or death.
- Entire Agreement; Assignment; Miscellaneous:
- These Terms constitute the complete and exclusive statement of the agreement between you and us. It supersedes any and all prior or contemporaneous agreement, oral or written, and any other communications, representations, warranties and understanding relating to the subject matter of the Terms. If there is a conflict between an oral or written representation of any Firstcheck employee or agent and the Terms, the Terms will prevail.
- If any provision(s) of the Terms is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties and the other provisions shall remain in full force and effect. Headings and section titles in the Terms are for purposes of reference only and shall not limit or otherwise affect the meaning of the Terms.
- You agree that Firstcheck may assign the Terms to any other entity of its choosing, with or without notice to you. You may not assign the Terms to any other party for any reason. Firstcheck shall not be deemed to have waived any of its rights or remedies unless such waiver is in writing and signed by an officer of Firstcheck. No delay or omission on the part of Firstcheck in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies on future occasions. The benefit of these Terms are enforceable only by the parties and no third party other than any Firstcheck related party, affiliate, parent, subsidiary, officer, director, shareholder, employee, contractor, agent, joint venturer, consultant, successor or assign.
- You shall not solicit Users of this Service for any purpose (including, without limitation, inviting Users to participate in a web or application service that in any way competes with Firstcheck or the Service).
- Governing Law: The Terms are governed by: (if you accessed this service in New Zealand) New Zealand law and are subject to the non-exclusive jurisdiction of the New Zealand Courts; (if you accessed this service in Australia) Australian law and are subject to the non-exclusive jurisdiction of the Courts of Victoria and any courts competent to hear appeals from those Courts; or otherwise New Zealand law and are subject to the non-exclusive jurisdiction of the New Zealand Courts. Any dispute relating in any way whatsoever to Firstcheck, the Terms or the Service will be heard in English language in Auckland, New Zealand or Melbourne, Australia (as applicable having regard to the governing law). You agree that any claims or disputes cannot be brought as a class action. No party to this agreement shall commence any court or arbitration proceedings relating to a dispute or difference arising out of or related to this agreement, unless that party has first complied with this clause. The parties agree to mediate any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question regarding its existence, validity or termination. Should the parties not be able to agree the selection of a mediator and or terms and or fees within 10 working days from the date one party delivers written notice to the other party that they wish the dispute or difference be resolved by mediation, then either party may request the appointment of the mediator and its standard terms including fees by Chair (or such like) of the Resolution Institute (or successor body), who will determine such matters.
- App Store Requirements: Although the Firstcheck applications or Service may be available for download in the Google Play Store (“Google”) or the iTunes Store (“Apple”), neither Google nor Apple are a party to these Terms and shall have no obligations with respect to the Firstcheck applications or Service. Google and Apple are third party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple or Google shall have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary. These Terms incorporates by reference the Licensed Application End User License Agreement published by Apple and Google, for purposes of which, you are “the end-user.” In the event of a conflict in the Terms of the Licensed Application End User License Agreement and these Terms, the terms of these Terms shall control.