INFORMED CONSENT: 3D JOINT ROM SYSTEM
This consent contains important information regarding the 3D Joint ROM System (“the System”), its use and the capturing and processing of your and your patients’ information. You must read this consent carefully before signing it and, if you are using the System as a medical professional or other service provider in conjunction with third parties, you must ensure that your patients or such third parties read and sign this consent.
Your attention is specifically drawn to paragraphs 9 and 10 that limit the risk and liability of, and impose an obligation on you, to indemnify Dynamic Body Technology Proprietary Limited (“DBT”) and other parties.
1 Introduction
The System is owned and operated by DBT, a private company incorporated in accordance with the laws of the Republic of South Africa.
The System comprises 3D Bluetooth motion sensor(s), the 3D Joint ROM software application (“the App”) and all information transmitted to and stored in the App.
2 How does the System Work?
The purpose of the System is to track range of movement for purposes of physical therapy, physical rehabilitation or other medical purposes. To this end, the System entails the placement of 3D Bluetooth motion sensor(s) in certain places on your or your patient’s body. These sensors will measure your or your patient’s range of movement and transmit the resultant range of movement data (“the Data”) to the App.
The Data is processed and analysed by the App and the results are stored under your or your patient’s / customer’s profile.
3 Account / Patient Profile
3.1 In order to use the System, you will be required to create an account with DBT and submit certain of your personal information, such as your name, e-mail address and billing information for this purpose. On registration, you may also be asked to register your account for your own personal use or as a medical practitioner or service provider who will use the System in conjunction with patients / customers. If the security or confidentiality of your account is compromised or you believe that a third party has gained unauthorised access to your account, you will notify DBT in writing and ensure that the password for that account is changed immediately.
3.2 Alternatively, your medical practitioner or service provider will create a patient profile for you on the App.
3.3 You confirm that all of the information that you provide to DBT or your medical practitioner for purposes of this paragraph 3 is accurate and complete in all respects.
4 Your Use of the System
In the event that you use the System as a medical practitioner / service provider, you acknowledge and agree that you determine which patients / customers who will use the System and you will not use the App to access your patients’ / customers’ or third parties’ information without their prior written consent.
You undertake to:
4.1 only use the System for the purpose for which it is intended and for no other use;
4.2 not attempt to gain unauthorised access to the Data or related systems or networks;
4.3 not copy the System or any part, application, function or feature thereof;
4.4 not circumvent, remove, alter, deactivate, degrade or thwart any of the protections in respect of the Data; and
4.5 not use any code, software or device to interfere or attempt to manipulate the System or any part, function or feature thereof and/or interfere with its proper working.
5 Availability of the App
DBT will use its reasonable commercial endeavours to ensure that the App is available 24 hours a day, 7 days a week, save for planned downtime and downtime caused by circumstances beyond DBT’s control, including but not limited to failures or delays caused by third parties such as your internet service provider, failures or incompatibility of your hardware, software conflicts, malware or viruses.
6 Intellectual Property Rights
The System is proprietary to DBT and you will not, and will not permit any third party to, archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, create derivative works from the System without DBT’s prior written consent.
You acknowledge and agree, as between you and DBT:
6.1 All intellectual property rights in and to the System vest in DBT.
6.2 You will not, and shall not permit or assist any third party to, infringe DBT’s rights in and to the System.
6.3 You will not challenge, question or dispute DBT’s right, title and interest to any of its intellectual property rights in and to the System, nor the ownership thereof or assist any other person or entity to do so.
7 Data Processing
DBT is committed to processing and protecting the Data in a lawful, fair and transparent manner.
7.1 What information is collected?
The System will collect the Data. The Data may contain information about you but may also include someone else’s Data provided by you. If you use the Services to collect a third party’s Data:
7.1.1 you must ensure that such third party is aware of the disclosure of the Data to DBT and the provisions of this Consent;
7.1.2 you warrant that such third party has consented to the disclosure of the Data to DBT and this Consent; and
7.1.3 you agree that you will be responsible for any such Data disclosed to DBT and will, upon request, assist DBT with responding to any requests from such third party, including but not limited to requests to access, delete or otherwise change their Data.
7.2 How is the Data used?
The Data is stored and collected for purposes of the System, registration and verification, communicating with you, understanding how you use the System, marketing and advertising, aggregation of your or your patients’ / customers’ information, to assist with technical support or otherwise as may be required by law.
DBT may access, aggregate and use the Data to improve the System, provide DBT’s clients with better information regarding the System and/or for purposes of third party medical research and/or disclosure to medical aid providers or insurers.
DBT will process the Data in accordance with its obligations in terms of the relevant laws, including:
7.2.1 in the case of South African users – the Electronic Communications and Transactions Act, 25 of 2002, and/or in the Protection of Personal Information Act, 4 of 2013; or
7.2.2 in the case of European Users, the General Data Protection Regulation (EU) 2016/67,
and in doing so, DBT undertakes not request unnecessary Data, process Data outside of the legitimate purpose for which it was collected, share, rent or sell the Data with third parties except when you or your patients / customers have consented or directed DBT to share the Data with service providers, affiliates and partners who perform services on DBT’s behalf, in the event that DBT is involved in a merger, acquisition or the sale of all or a part of its assets, or as may be required by law or when, in the sole opinion of DBT, it is necessary to do so to protect its rights or your or your patients’ / customers’ safety or the safety of others, or to investigate and/or prevent fraud or a breach of security.
7.3 Where is the Data stored?
The Data is stored on servers hosted by [●] on servers located in the United Kingdom, Republic of Ireland, United States and/or South Africa. The hosting provider is bound by a privacy agreement entered into with DBT and your Data is stored securely, privately and is accessed using encrypted channels. In case of fire or damage to these servers, a backup solution exists to ensure no single point of failure.
7.4 Is the Data Secure?
DBT uses reasonable technical and organisational measures to secure the integrity of the Data and to prevent the loss of, damage to or unauthorised destruction of the Data and unlawful access to or processing of the Data.
The Data is stored in a secure database which is protected behind firewalls and is hosted in such a way that the database itself is not accessible to the outside world. However, the transmission of Data via the internet and Bluetooth is at your and your patients’ / customers’ own risk and DBT accepts no responsibility or liability for any security breach or in the event the Data is damaged, loss disclosed, copied or modified in any unauthorised manner.
The App retrieves the Data and presents it to you through a secure encrypted channel that cannot be viewed by anyone but yourself or your patients / customers.
When a significant change in the processing of the Data is introduced, DBT will undertake a data protection impact assessment prior to implementing such change.
DBT maintains a personal data breach register under the control of its data protection officer and ensures that its employees remain aware of their responsibilities with regard to the protection of Data breaches. Based on the severity thereof, you and any relevant regulator will be informed of any breaches of the Data within 72 hours of identifying the breach.
7.5 How long is the Data retained for?
The Data will be stored, processed and used by DBT only for so long as your and/or your patients’ / customers’ accounts are active and as may be necessary to comply with any applicable laws, resolve disputes and to enforce its agreements.
7.6 What are my rights?
You have the right, at any time, to know whether your Data is being stored or processed by DBT, consult with DBT as to the contents and rationale for processing of such Data, view and request copies of your Data, to verify the accuracy of your Data or to request that your Data be updated, supplemented or corrected, withdraw a previously given consent for the processing or automated processing of your Data, object to the processing of your Data for any and all legitimate reasons, or to ask for the deletion of your Data.
Any request pursuant to this paragraph 7.7 must be addressed to DBT in writing by way of e-mail to [●].
8 Children
The System is for purchase by adults, although it may be used by children. If you or your patient / customer is under the age of 18, you or your patient / customer may only use the System with the involvement and consent of a parent or guardian.
9 Warranties, Disclaimer and Acknowledgements
The System and its content are provided “as is” without any warranties, including but not limited to express or implied warranties of merchantability, fitness for a particular purpose, compatibility of the App with your software or devices, title and non-infringement or about the suitability, reliability or accuracy of the System and its content.
Whilst DBT uses all reasonable commercial endeavours to ensure that the content of the System is accurate and lawful, such content may contain inaccuracies or errors or be unlawful. DBT accepts no responsibility or liability for any inaccurate, unlawful or erroneous content.
You acknowledge and agree that:
9.1 nothing in this Consent shall confer, or purport to confer, a benefit on any third party. If you use the System on behalf of a third party, it is your responsibility to ensure that you are authorised to do so by that party and DBT has no obligation to make any Data available to that third party without your authorisation;
9.2 your use of the System does not constitute the receipt of medical advice; and
9.3 it is your responsibility to ensure that your use of the System complies with applicable laws.
10 Exclusion of Liability and Indemnity
We recommend that the System be used by, or under the guidance of, an appropriately qualified medical practitioner.
You absolve DBT and its employees, officers, directors, contractors and agents (“the Indemnified Parties”) from all liability and indemnify them from any claim by any person for damages or loss of whatever nature (including but not limited to consequential damages or special damages) arising directly or indirectly from:
10.1 your use of and/or reliance on the System;
10.2 DBT’s refusal to provide a third party with access to the Data in accordance with this Consent or the disclosure of Data to any third party with your authorisation; or
10.3 loss of the Data,
whatever the cause/causes are (including any negligent or grossly negligent act or omission by any of the Indemnified Parties), save only for the exclusion of intentional action on the part of the Indemnified Parties.
11 Amendment of this Consent
DBT reserves the right to amend this Consent from time to time. Such amendments shall be effected by way of publication thereof on DBT’s website, and you waive any right you may have to receive specific notice of such amendments.