Terms and Conditions of Service

Last Updated: 21 September, 2021

Welcome to HD Track Please carefully review this Terms and Conditions of Service Agreement (the “Agreement” or the “Terms”) that governs your (“User,” “you” or “your”) access and use of HD Track and related services provided by Baxter Healthcare Corporation, together with its affiliates and subsidiaries (“Baxter,” “our,” “we,” and “us”).

IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE HD TRACK.

General Terms and Restrictions on Use

Subject to these Terms, Baxter grants you a limited, revocable, nonexclusive, nontransferable personal right to access and make use of HD Track solely for the benefit of User and no other commercial purpose, on a mobile device that you own or control or as otherwise permitted herein. All rights not otherwise expressly granted by these Terms are reserved by Baxter. You agree not to (i) license, reproduce, duplicate, copy, distribute, transmit, sell, or resell any portion of HD Track or information available through HD Track; or (ii) use HD Track in outsourcing, time-sharing, or to otherwise commercially exploit or make available to any third party, any portion of HD Track. We may discontinue or alter any aspect of HD Track or remove content from HD Track at any time without prior notice.

You agree that we may, under certain circumstances, immediately suspend or terminate your access to or use of HD Track, without prejudice to the applicable data protection laws. Such circumstances include (a) breaches or violations of these Terms; (b) discontinuance or material modification to HD Track; (c) unexpected technical or security issues or problems; (d) extended periods (90+ days) of inactivity by a User; or (e) engagement by you in fraudulent or illegal activities. You further agree that such measures shall be taken in our sole discretion and without liability to you or any third party.

User Account

To access and use HD Track, each User must first receive an email invitation from the User’s dialysis unit to download the app and create an account (including a password). During the setup process, you may be asked to accept the Personal Information Collection Statement. To login as User, you will need to enter your email address and password on the HD Track login screen. You agree that you will provide truthful and accurate information that belongs to you during the registration process to create your Account.

You acknowledge and agree that you are responsible for maintaining the confidentiality of your username and password associated with your Account and are fully responsible for all activities that occur under your Account, including how you use the information obtained from HD Track. You agree that you will logout of your Account at the end of each session. Except as otherwise permitted herein, you are prohibited from sharing your Account with, or assigning your Account to, any other person without our prior authorisation. Should you become aware of or suspect any unauthorised use of your Account or your information changes, you must immediately notify us. You represent and warrant that your access and use of HD Track does not violate or constitute a breach of any other agreement, contract, terms of use, or other legal obligation to which you are subject.

If you access HD Track using your mobile device, you understand that your network provider may charge you fees for your use of its network while accessing or using HD Track, for data downloading, or roaming, and you further understand and agree that YOU ARE SOLELY RESPONSIBLE FOR SUCH FEES AND CHARGES. You further agree that you are solely responsible for acquiring and maintaining your own technology equipment necessary to access and use HD Track, including internet access, and all costs or expenses associated with accessing and using HD Track.

HD Track Tracking Quicklook

Once you login, you will be able to view (graphically) details of your previous 30 days’ responses you will also have the opportunity to enter your daily responses to the questions in HD Track.

Prohibited Uses

You acknowledge and agree to use HD Track only for lawful purposes and in compliance with all of the applicable laws and regulations, as determined on a case-by-case basis depending on the jurisdiction in which you reside when using HD Track. Baxter reserves the right to revoke User’s privilege to use HD Track or take any appropriate measures to enforce the guidelines set forth herein, if violations are brought to its attention.

While using HD Track, unless specifically authorised by applicable law, you agree that you shall not: (i) copy, modify, correct, adapt, alter, translate, enhance, or otherwise create derivative works or improvements of HD Track, including any HD Track content; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to learn or gain access to the source code, structure, or ideas upon which HD Track is based; (iii) promote illegal activities, fraudulent schemes, anything objectionable (as determined by us) or otherwise violate any applicable law; (iv) stalk, harass, threaten, or invade the privacy of or engage in predatory behavior towards another User or any other person; (v) post, upload or otherwise transmit any information that is unlawful, harmful, abusive, tortious, profane, indecent, sexually explicit, hateful, or racially, ethnically or otherwise objectionable or intended to offend any person or that is otherwise objectionable to Baxter, in its sole discretion; (vi) use HD Track to post, use, upload, or disseminate content, files, graphics, software, or other material that infringes or misappropriates any trade secret or intellectual property rights, rights of publicity, rights of privacy, or proprietary rights of any party; (vii) take any action to circumvent, compromise, or defeat any security measures implemented on HD Track; (vii) use any manual or automated software, devices, or other processes to “crawl” or “spider” any web pages contained in HD Track (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract data from HD Track); (ix) upload or otherwise transmit information that contains software viruses or any other malicious code, files, or programs designed to interrupt, disable, alter, harm, or limit the functionality of HD Track or any software, firmware, data, hardware, or system; (x) frame or otherwise simulate the appearance or functions of HD Track or any portion thereof; (xi) use HD Track to gain competitive intelligence about us or develop a competing product or service; (xii) harvest or otherwise collect, store or use information about other Users; or (xiii) impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity. User further agrees that User shall not assist a third party to do any of the foregoing.

Privacy

Your privacy and security of information is important to us. Please carefully review our Personal Information Collection Statement located both on the HD Track dashboard, for information about how we collect, use, store and share your personal information.

Children

HD Track is not aimed or intended for children under the age of 18. If you are under the age of 18, please DO NOT USE HD Track. By using HD Track, you represent and certify that you are 18 years of age or older or otherwise have reached the age of majority in the jurisdiction where you reside or are an emancipated minor under the laws of your jurisdiction of domicile or residence.

Links and Third Party Content

Should HD Track provide links to other websites or resources on the internet maintained by third parties, we encourage you to review any separate terms of use or privacy policy governing the use of those third party websites and resources. You agree that we have no control over and are not responsible for the content or availability of such websites or resources, or for any privacy or other practices of the third parties operating those websites or resources.

Intellectual Property

All content and materials, including text, graphics, logos, trademarks, button icons, images, illustrations, photographs, digital downloads, or other materials (collectively, “HD Track Content”) and all intellectual property rights therein, are the property of Baxter or its third party licensors and protected by U.S. and international laws, unless otherwise expressly stated in these Terms. No right, title, or interest in any HD Track Content or intellectual property rights therein is transferred to you as a result of your use of HD Track. Baxter and its licensors and service providers reserve and retain all of their respective rights, title, and interest in and to HD Track as well as any software, modifications, or enhancements made thereto, including all intellectual property rights therein.

DISCLAIMERS

HD TRACK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF HD TRACK IS AT USER’S SOLE RISK. BAXTER DOES NOT WARRANT THAT USER’S USE OF HDX TRACK WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES BAXTER MAKE ANY WARRANTY AS TO THE SUITABILITY OF HD TRACK FOR ITS INTENDED USE. BAXTER, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT, OR TIMELINESS, SUITABILITY, OR ACCURACY IN RELATION TO HD TRACK. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON HDX TRACK OR ANY INFORMATION OR THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION.

HD TRACK AND THE INFORMATION, DATA, HD TRACK CONTENT, OR OTHER CONTENT PROVIDED THROUGH HD TRACK IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. SUCH INFORMATION, DATA, HD TRACK CONTENT, AND OTHER CONTENT IS NOT A SUBSTITUTE FOR MEDICAL ADVICE, SERVICES, DIAGNOSIS OR TREATMENT. YOU AGREE TO SEEK THE PROFESSIONAL MEDICAL ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER.

BAXTER USES REASONABLE EFFORTS TO MAINTAIN HD TRACK BUT BAXTER IS NOT RESPONSIBLE FOR ANY DEFECTS OR FAILURES ASSOCIATED WITH HD TRACK, OR ANY PART THEREOF, ANY CONTENT POSTED USING HD TRACK, OR ANY DAMAGES (SUCH AS ANY CONSEQUENTIAL DAMAGES) THAT MAY RESULT FROM ANY SUCH DEFECTS OR FAILURES, EXCEPT FOR THOSE RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF BAXTER, ITS AFFILIATES, OR ITS AGENTS. THE MYPD PLATFORM MAY BE INACCESSIBLE OR INOPERABLE FOR ANY REASON, INCLUDING WITHOUT LIMITATION: (I) EQUIPMENT MALFUNCTIONS; (II) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS; OR (III) CAUSES BEYOND THE CONTROL OF BAXTER OR WHICH ARE NOT FORESEEABLE BY BAXTER. BAXTER MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY FOR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY THIRD PARTY HARDWARE, EQUIPMENT, TECHNOLOGY, OR SERVICE WITH WHICH HD TRACK MAY BE REQUIRED TO OPERATE.

SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETIES.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT BAXTER, ITS AFFILIATES, OR ITS AGENTS, IN NO EVENT WILL BAXTER, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PROXIMATE, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING FROM OR RELATING TO THIS AGREEMENT, HD TRACK, OR USER’S ABILITY OR INABILITY TO USE HD TRACK, ANY INACCURACY OR INCOMPLETENESS OF INFORMATION CONTAINED IN HD TRACK, ANY DELAY OR FAILURE OR ALTERATION OF ANY TRANSMISSION OR DATA, EVEN IF BAXTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BAXTER NOR ITS AFFILIATES OR SUBSIDIARIES’ TOTAL LIABILITY FOR ALL DAMAGES, CLAIMS, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE WILL EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OR USING HD TRACK. USER AGREES THAT IF USER IS DISSATISFIED WITH HD TRACK, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF HDX TRACK AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREIN.

(a) To the maximum extent permitted by law, Baxter makes no express (except as set out in these Terms) and excludes all implied (whether by common law, statute or otherwise) representations, warranties, terms, conditions and guarantees of any kind whatsoever.

(b) In the event it is found that HD Track is subject to consumer guarantees that cannot be excluded under the relevant Consumer Law, then:

(i) in such case, subject to the relevant Consumer Law, the user may be entitled to a replacement or refund for a major failure of HD Track app and for compensation for any other reasonably foreseeable loss or damage. The Customer may, subject to the relevant Consumer Law, also be entitled to have HD Track repaired or replaced if HD Track fails to be of acceptable quality and the failure does not amount to a major failure; and

(i) any other rights or remedies of a user of HD Track or any third party claiming through that user of HD Track in connection with the Consumer Law, shall be limited, at Baxter’s option, to (i) replacement of the products or resupply of the Services (or supply of equivalent products or services) (ii) repair of the products (iii) payment of the cost of replacing the products or resupplying the services (or acquiring equivalent products or services) or (iv) payment of the cost of having the products repaired or services made good.

(c) Nothing in these Terms is intended to exclude, restrict or modify any rights that the user may have under the relevant Consumer Law or any other applicable legislation which may not be excluded, restricted or modified by agreement.

(d) Notwithstanding any other provision of these Terms of Service, the liability of Baxter for any loss, liability, expense, cost, damage or claim sustained, incurred or suffered by you is reduced to the extent that such loss, liability, expense, cost, damage or claim is contributed to or caused by any breach of contract, negligent act or omission, unlawful conduct or other misconduct by you or your agents, contractors, employees or assigns.

(e) You must use reasonable efforts promptly to mitigate any loss, liability, expense, cost, damage or claim that is likely to be, or is actually, sustained, incurred or suffered by you.

For the purposes of this Terms:

“Consumer” has the same meaning as given by the Consumer Law; and

“Consumer Law” means, as relevant, the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), the CGA (NZ) and/or the FTA (NZ).

Release and Indemnification

To the maximum extent permitted under applicable laws, you agree to release Baxter, its officers, directors, and agents, from liability and obligations arising in connection with your use of HD Track. If, at any time, you are not satisfied with HD Track, your sole remedy is cessation of use of HD Track. To the maximum extent permitted under the applicable laws, you agree to defend, indemnify, and hold harmless Baxter, its officers, directors, employees, agents, shareholders, licensors, and suppliers from and against any and all claims, actions, demands, obligations, losses, liabilities, expenses, and costs, including reasonable attorneys’ fees arising from (i) your unlawful access or use of HD Track; (ii) breach of these Terms; (iii) infringement or misappropriation of any intellectual property or other rights of Baxter or third parties by you; or (iv) any negligence or willful misconduct by you.

Termination

These Terms are effective upon your acceptance during the registration process and continue until terminated as set forth herein. You agree that Baxter may terminate your use of HD Track, as previously described herein, or discontinue providing any portion of HD Track without notice. You may terminate these Terms at any time by discontinuing your use of HD Track. Upon termination of these Terms, you must cease use of HD Track and destroy all materials obtained via HD Track. For information about our retention of your personal data after termination of these Terms, please see the Personal Information Collection Statement located on the HD dashboard.

Dispute Resolution

(a) If a dispute arises between the parties in connection with these Terms or any use of HD Track, Baxter and you undertake in good faith to use all reasonable endeavours to settle the dispute by way of good faith negotiation (including by escalating the dispute to executive level) before resorting to any other remedy.

(b) If the dispute cannot be resolved at meetings between the parties’ representatives, either party may require that the dispute is referred to mediation. The mediator shall then be agreed between the parties, or otherwise appointed by the President of the New South Wales Law Society at the request of a party (if in Australia) or the President of the New Zealand Law Society (if in NZ).

(c) Each party will bear its own respective legal costs (as between solicitor and client) incurred in any enforcement or attempted enforcement of its rights, remedies or powers under these Terms, including through the referral of any dispute under these Terms to mediation.

(d) It is a condition precedent to commencement of any litigation proceedings by a party in respect of any such dispute that the party has complied fully with the resolution process under this Dispute Resolution section, except where the dispute is in relation to a non-payment of monies due or: (a) the party seeks urgent interlocutory, injunctive or declaratory relief in respect of the dispute; or (b) the other party has failed to observe the requirements of this clause and the party seeks to enforce compliance with this resolution process as regards that dispute. This Dispute Resolution section shall not prohibit the application of any mandatory consumer protection laws in the country from which we offer HD Track and as applicable to you in your habitual place of residence.

Governing Law

In Australia, these Terms are governed by the law of New South Wales, and the parties submit to the jurisdiction of the courts of New South Wales and any courts hearing appeals therefrom. In NZ, these terms are governed by the law of New Zealand, and the parties submit to the jurisdiction of the courts of New Zealand.

In case of conflict regarding the above mentioned laws, this Agreement is submitted to the exclusive jurisdiction of the courts of your place of residence.

Miscellaneous

Entire Agreement. These Terms constitute the entire agreement between the Baxter and User hereto concerning the subject matter hereof and supersedes any prior or contemporaneous agreements concerning such subject matter.

Amendment. Baxter may amend or modify the terms of this Agreement at any time. Your acceptance of the modified terms after the terms of this Agreement are revised, constitutes your express consent to the modified Agreement. Notwithstanding the foregoing, no amendment, change, or extension to this Agreement is valid or binding, unless approved in writing by Baxter.

Waiver. No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement will be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right or provision of this Agreement.

Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and the offending provision shall be deemed automatically modified by the minimum necessary to render it valid and enforceable under applicable law, with the nature and extent of the modifications to be determined by a court of competent jurisdiction.

Equitable Relief. Notwithstanding anything herein to the contrary, User acknowledges that any breach of the terms of this Agreement, including your use of HD Track in violation of the rights granted herein or infringement upon or misappropriation of any intellectual property rights of Baxter or its licensors, would cause irreparable harm and significant injury to Baxter and/or its licensors. As such, Baxter and User agree that Baxter has the right to enforce the terms of this Agreement by injunction (without necessity of posting bond to the extent permitted under applicable law), specific performance, or other equitable relief without prejudice and in addition to any other rights and remedies that may be available to Baxter.

Export Control. Unless otherwise specified, HD Track, HD Track Content, and other related materials for HD Track are available in the United States. Baxter makes no representations or warranties that HD Track or other related material accessible via HD Track is appropriate or available for use in all countries or jurisdictions. User hereby agrees to comply with all applicable local laws, rules, and regulations, including any export and re-export control laws, restrictions, and regulations.

Headings; Translations. The headings used herein are for convenience only and will not limit the interpretation of any section hereof.

Force Majeure. Neither party to this Agreement shall be liable for failure to fulfill its obligations under this Agreement due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials, or supplies in the open market, failure of power, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.

Contact Information

Baxter Healthcare Pty Ltd
Attn: Privacy Officer
1 Baxter Drive
Old Toongabbie NSW 2146