1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Website. By accessing and using the Website:
a you agree to these Terms; and
b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.
2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.
2.3 These Terms were last updated on 16 July 2020.
In these Terms:
including and similar words do not imply any limit
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
personal information means information about an identifiable, living person
Underlying System means any network, system, software, data or material that underlies or is connected to the Website
User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website
We, us or our means Firstcheck Limited, a company registered in New Zealand.
Website means https://firstcheck.me or the website on which you accessed these terms.
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
4 YOUR OBLIGATIONS
4.1 You must provide true, current and complete information in your dealings with us (including when setting up any account), and must promptly update that information as required so that the information remains true, current and complete.
4.2 If you are given a User ID, you must keep your User ID secure and:
a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
b immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by sending an email to firstname.lastname@example.org.
4.3 You must:
a not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
b unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.
4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to email@example.com.
4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.
5 INTELLECTUAL PROPERTY
5.1 We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.
6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
a the Website being unavailable (in whole or in part) or performing slowly;
b any error in, or omission from, any information made available through the Website;
c any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and
d any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
6.2 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.
7.1 To the maximum extent permitted by law:
a you access and use the Website at your own risk; and
b we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
7.2 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of mandatory applicable consumer legislation or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to $100.00.
7.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed $100.00.
8.1 You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of the Website available to you. For example, we may need to have your contact information in order to provide you with updates from our Website.
8.2 When you provide personal information to us, we will comply with the relevant privacy legislation.
8.3 The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.
8.5 Generally, we do not disclose personal information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are (without limitation):
a to service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);
b in relation to the proposed purchase or acquisition of our business or assets; or
c where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
8.6 Any personal information you provide to us may be stored on the servers of our trusted service providers, which may be located abroad. This may involve the transfer of your personal information to countries which have less legal protection for personal information than your local country.
8.7 You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at firstname.lastname@example.org.
9 SUSPENSION AND TERMINATION
9.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).
9.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.
10.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
10.2 For us to waive a right under these Terms, the waiver must be in writing.
10.3 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.5, 5, 6, 7, 10.1, continue in force.
10.4 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
10.5 These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.
11.1 In addition to clauses 1 to 10 (inclusive) above, this clause 11 applies in respect of goods or products advertised and/or sold through the Website (including, without limitation, Firstcheck SkinScopes and dyplens) (Products), and the ordering and purchase of Products.
11.2 New Zealand and Australia Only: Orders will be accepted by Firstcheck for delivery in New Zealand and Australia only. Payment is to be made in New Zealand dollars for New Zealand orders and delivery and in Australian dollars for Australian orders and delivery.
11.3 Product Availability: Products may be added to or removed from the website from time to time. Although we have endeavoured to ensure that the product and pricing information provided by us is accurate, complete, and current, we do not provide any representations or warranties as to its accuracy, completeness or currency of information, and we site shall not be responsible or liable for any inaccurate, incomplete, or out-of-date information.
11.4 Pricing: All prices in are in New Zealand or Australian dollars (NZ$)/(AU$) (as applicable) and are GST inclusive and freight charge inclusive for delivery within New Zealand and Australia. If the freight costs to deliver to you exceed the average delivery cost to Firstcheck by over 20%, Firstcheck reserves the right to require additional payment from you prior to dispatch. Prices may increase or decrease from time to time. Prices shown at the time of purchase are the prices you will pay (subject to any mistaken or error pricing). Any import fees, duties, tariffs, taxes or other imposts or charges are not included.
11.5 Purchasing: Products are purchased using Stripe’s credit card payment services. You must pay by Stripe’s credit card payment service. We will not accept cheques or cash. Your transaction and credit card details are not entered on our sites and are not recorded by us – you will be seamlessly transferred to the Stripe service for payment processing. Once we receive confirmation from Stripe that your transaction has been approved, we will then process your order.
a We ship all our online orders by tracked post / courier and endeavour to deliver within usually within 1-3 days. Where we experience excess demand, delivery times may be delayed. We can only deliver to a physical address, not a PO Box, Hotel, Motel or Care Of (c/-) address. Please ensure you provide accurate physical address details that you know a courier will have no issues delivering to.
b We are not responsible for loss or damage to goods that are delivered to an incorrect address if we have followed your delivery address details.
c Any claims for non-delivery must be made promptly and cannot be accepted if the order is no longer trackable in the applicable system.
d Any quotations of delivery times by us are made in good faith but are estimates and we shall not be bound by such quotation and we will not be liable for any loss, expense, or other damage caused by any delay in delivery.
11.7 Contract: When you order a Product from us, this constitutes an offer from you to buy a Product in accordance with these Terms. Our acceptance of your order occurs (and the contract is formed) when the goods are dispatched by us to you. Goods are at your risk once shipped.
11.8 Refunds & Returns Policy: Please choose carefully as we do not refund if you change your mind and will make refunds as required by law. If the goods are faulty or defective, please contact us promptly. We may, at our discretion, replace or refund purchases or part purchases. Any refunds are paid in the same form of payment originally used for purchase. For any claim to be made the item must be sent directly to our warehouse. Please contact us for address details.
11.9 Warranties: Where the provisions of the local consumer legislation apply, these Terms will be read subject to the application of that legislation, and in the case of any conflict, the provisions of that legislation will apply. We do not consider claims arising from normal wear and tear or accidental damage or mistreatment.
11.10 Not “medical grade”: Firstcheck’s magnifiers/ microscopes and Products 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. Notwithstanding anything, neither the Firstcheck SkinScope nor dyplens (nor any Product) should be considered “medical grade”. No warranties or representations are made in respect of the suitability of a Product for medical or health purposes. The SkinScope and dyplens should be considered a generic microscopic device only. Warning: Choking Hazard – Small Parts. Not for children under 3 years.
a To the maximum extent permitted by law, we disclaim all warranties, representations, and guarantees (whether, express, implied, or statutory), with respect to any product or any information supplied to you by us including, but not limited to, warranties of availability, accuracy, non-infringement, completeness, timeliness, currency, merchantability, or fitness for a particular purpose.
b To the maximum extent permitted by law, our liability to you (whether in contract, tort, or otherwise) for any loss, damage, or injury arising from any defect in, or non-compliance of, a product supplied to you by us shall be limited to the price paid by you for that product.
c To the maximum extent permitted by law, we will not be liable (whether in contract, tort, or otherwise) for any loss of profits, or any indirect, incidental, consequential, or economic loss or damage (howsoever caused), which you may directly or indirectly suffer in connection with your access to, use of, or reliance upon, any product or any information supplied to you by us.
d In lieu of any warranty, condition, or liability by law, our liability in respect of any defect in or failure of the goods supplied, or for any loss, injury, or damage attributable thereto, is limited to making good the replacement or repair of defects arising under normal proper use and maintenance arising solely from faulty design, materials, or workmanship within 6 months of the date of supply, provided always that such defective parts are promptly returned to us, unless otherwise arranged.
e At the termination of 6 months of the date of supply all liability on our part ceases.
f Any warranty does not cover damage from misuse, accident, negligent, inappropriate or improper operation, maintenance, installation, modification or adjustment.
g Our liability under these Terms and any warranty in this clause is confined to you being the buyer, it being agreed that we have no liability to any purchaser of the goods from you the buyer in that the buyer’s rights under these Terms are not assignable without the prior written consent of the seller.
h We do not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party through the Website or any linked Website or featured in any banner or other advertising. We will not be a party to or in any way responsible for monitoring any transaction between you and third party merchants of goods and services.
i Where any law provides a guarantee which may not be lawfully excluded, our liability will be limited to that provided by law.
j Except as required by law, in no event shall we, our affiliates and related entities or our suppliers be liable for any loss or any special, incidental or consequential damages arising out of or in connection with our app, website or these Terms (however arising, including negligence). You agree to accept sole responsibility for the legality of your actions under the laws which apply to you. You agree that we, our affiliates and related entities or our suppliers have no responsibility for the legality of your actions.
k We shall not be liable to you for any loss or damage, directly or indirectly arising out of or in connection with any delay in delivery of the goods, or failure to perform any term of these Terms where such delay or failure is outside our reasonable control.
12 GOVERNING LAW
12.1 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 Website 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.