Group Subscriber Terms

CT Operations Pty Ltd (ACN 606 091 258)—trading as Oculo™

In addition to the terms set out in the cover letter from Oculo to You (being a centralised entity within a corporate or business group) provided at the same time as this document (Letter),We agree to make the Oculo™ Platform available to You and users at each of Your Locations on the following terms and conditions for the Term (defined below).

By signing the Letter, You create an agreement with CT Operations Pty Ltd (ACN 606 091 258) trading as Oculo (Oculo or We or Us). Under this agreement, You agree to be bound by these subscriber terms (Group Subscriber Terms), and the terms set out in the Letter (together, the Agreement). In this Agreement, a reference to a Location is a reference to each “bricks and mortar” premises at which You or entities in Your corporate or business group carry on a practice or provide services (as applicable) as set out in the Letter, and a reference to Your Group Subscription is a reference to the access to the Platform at each Location granted to You under this Agreement. In addition, each user of an account linked to Your Group Subscription will be required to agree to the Oculo Terms of Use (Terms of Use) to utilise the Platform.

Terms and Renewal

The Term is the duration of any applicable Trial Period (such trial period commencing on the day on which the Letter is signed by You) and the period of 12 months (Initial Term) starting on the day on which:
− Your payment of the total annual subscription fees is paid in respect of Your Group Subscription (Group Subscription Fee); or
− where a monthly payment plan has been agreed between You and Us (Monthly Payment Plan), Your payment of the first monthly instalment of the Group Subscription Fee is paid.

At the end of the Initial Term, this Agreement will automatically renew for further successive periods of 12 months (each a Renewal Term), unless and until either You or We terminate Your Group Subscription in accordance with these Group Subscriber Terms.

Your Obligations

You will pay the Group Subscription Fee in accordance with this Agreement.
You agree to, and will ensure that each account user on Your Group Subscription will, access and use the Platform and any patient information (such as clinical notes and images as well as provider details) available on the Platform (Content) in a diligent and professional manner, in good faith and for a proper purpose, and in accordance with:

− applicable laws pertaining to privacy and the collection, use, storage, disclosure and disposal of health information relevant to You or Your Location (Privacy Legislation), including:

  • in Australia: the Privacy Act 1988 (Cth), and relevant provisions of Health Records Act 2001 (Vic), Health Records and Information Privacy Act 2002 (NSW) and Health Records (Privacy and Access) Act 1997 (ACT);

  • in New Zealand: Privacy Act 1993, Health Information Privacy Code 1994, HISO 10029 Health Information Security Framework, Retention of Health Information Regulations 1996 and the relevant provisions of New Zealand Public Health and Disability Act 2000, Health Act 1956, Health (Retention of Health Information) Regulations 1996, Public Records Act 2005, and Official Information Act 1982; and

− applicable standards, codes and guidelines relevant to You or Your Location (together, Codes of Conduct), including:

− all other applicable laws, regulations, rules, policies and codes of conduct relevant to the subject matter and use of the Platform.

Each Location may have multiple individuals, who are Your employees, agents, officers or contractors, who have access to the Platform (Users). You Acknowledge and agree that immediately upon the termination or expiration of Your relationship with a User, You and/or a Location Account Manager will notify Oculo that the individual is no longer a User and either (i) confirm the User’s Platform access has been terminated by the Location Account Manager or (ii) requests Oculo to terminate such access.

Oculo Obligation

In respect of the provision of the Platform under this Agreement, Oculo will:
− comply with any reasonable security policy from time to time advised by You insofar as it does not contradict, or restrict, compliance with Oculo’s security policy;
− provide annual compliance training to its employees to ensure, as far as is reasonable, that compliance with the requirements of this Agreement is maintained;
− maintain alphanumeric, uppercase and lowercase password complexity protocols;
− only use servers located in Australia, unless otherwise agreed by You and Us and permitted by the relevant Privacy Legislation, and We will not, insofar as is within Our reasonable control, actively transfer, or allow any employee, officer, agent or contractor to access, any Content outside of Australia;
− upon Your reasonable request provide You with résumés of service provider staff involved in the provision or support of the Platform;
− use reasonable endeavours to ensure that:

− take reasonable measures to ensure that all Content is kept confidential, safe and secure at all times.

Nothing in this Agreement shall grant Oculo any right to use the Content or any part of it, other than as required to perform its obligations under this Agreement.

Payment

All payments of the applicable Group Subscription Fee, including payments on a Monthly Payment Plan, must be made within 14 days from Your receipt of a duly rendered invoice from Us or by direct debit if agreed between Us.

Oculo reserves the right to set a maximum amount of network bandwidth, memory, or other computer storage that You may use, and a maximum amount of data that You may store, upload, post, disseminate or otherwise transmit, on or through the Platform, and to charge additional fees for excessive use. Oculo also reserves the right to charge administration fees in respect of payment transactions. All fees quoted by Oculo are exclusive of GST, with GST being added at the time of payment.

Upon commencement of each Location’s applicable Trial Period, or if there is no Trial Period then once payment of the applicable Group Subscription Fee is received, We will grant you access to the Platform by sending each Location Account Manager an email containing a unique username and password for the Platform. Each Location Account Manager will then be able to create such User accounts as subscribed for in respect of that Location. Each Location Account Manager may then (using the relevant Location’s subscriber account) also create such optometrist, clinical support person and practice administrator accounts as Your practice may require, from time to time.

If You wish to query a delivery please contact Us by email addressed to support@oculo.com.au.

Suspension

If You do not pay any applicable Group Subscription Fee (in whole or part) We may, in accordance with the Terms of Use and this Agreement, suspend access to any or all user accounts linked to Your Group Subscription until such outstanding amount is paid. If any account is suspended for 90 days or more due to non-payment, We may take such action as set out in the following paragraphs.

Termination

Users of the Platform, excluding any Location Account Manager, may terminate their account with immediate effect as set out in the Terms of Use. A Location Account Manager may not terminate the Location’s subscriber account without Your and Our prior written consent. You may terminate this Agreement for any reason by providing three (3) months written notice to Oculo.

You may terminate this Agreement immediately upon written notice if Oculo (i) breaches a material term of this Agreement and has been unable to remedy such material breach within 30 days of receipt of Your written notification of the material breach or (ii) becomes insolvent, appoints an administrator or liquidator or goes into receivership.

Oculo may terminate Your Group Subscription or the access to the Platform of any account linked to Your Group Subscription without liability to You or any third party if (i) You breach this Agreement and are unable to remedy such breach within 30 days of notice of the breach being provided to you by Oculo, or (ii) any payment of the applicable Group Subscription Fee remains unpaid for more than 90 days or (iii) for any reason on one (1) months’ written notice to You. If We exercise any such termination right We will send an e-mail to the e-mail address recorded on Your Group Subscription and termination will be effective one day after the sending of that e-mail.

If Your Group Subscription is terminated (either by You or Us):
− save for in the instance of a material breach of this Agreement by Us, You will not be entitled to any refund of any portion of the Group Subscription Fee and We may recover any amounts owing to Us;
− all store subscriber accounts linked to Your Group Subscription will terminate; and
− Oculo will, upon receipt of all payments due and owing from You and upon Your written request, provide You with a copy of all Content held on the Platform in respect of each Location in portable document format (pdf).

General Disclaimer

The Platform, including content, is provided on an “as is” and “as available” basis. You acknowledge having read and understood these Group Subscriber Terms and any other conditions brought to Your attention in the course of Your access to, or use of, the Platform, including the Terms of Use. To the maximum extent permitted by law, You expressly agree that:
  (a) Your use of the Platform is at Your sole risk;   (b) We rely on You and Your professional skill and judgement in Your access to and use of the Platform;
  (c) except as otherwise expressly agreed in writing, Oculo and its and its associates (including licensors and related bodies corporate) (“Associates”) expressly disclaim any implied or express representations or warranties of any kind relating to the use of the Platform;
  (d) without limiting the foregoing, Oculo and its Associates assume no responsibility for, and make no warranty or representation:

  • as to the accuracy, currency, completeness, reliability or usefulness of, any information obtained through use of the Platform (including any advice, opinion, statement or other content or any products or services distributed or made available by third parties through the Platform);

  • that confidentiality of information transmitted through the Platform will be maintained by users of the Platform (including You);

  • that the Platform will be of merchantable quality, fit for a particular purpose or meet Your requirements;

  • that any access to, or use of, the Platform will:
    − not infringe any rights (including intellectual property rights) of any third party; or
    − be free of defects, viruses, or anything else (such as worms or trojan horses) that may interfere with or damage the operations of a computer system; or .
    − be uninterrupted or error free, and

  (e) Oculo and its Associates are not liable to You or anyone else for any:

  • interference with or damage to Your computer system (including at each Location) that may occur in connection with Your Group Subscription;

  • acts or omissions of Your internet service provider or any public or private telecommunications networks, including any system error, service outage, slow performance, bandwidth capacity problems, unauthorized access, malware or viruses;

  • any loss or corruption of any Content.

No advice or information, whether oral or written, obtained by You from or through Your use of the Platform, or otherwise from Oculo or its Associates, creates any warranty not expressly made in these Group Subscriber Terms. You acknowledge that Oculo does not in any respect control any content, information, products or services offered by any third party (including by any health providers) through the Platform.

Limitation of liability

To the maximum extent permitted by law, Oculo and its Associates exclude all:
  (a) liability to any person for loss or damage of any kind arising from or relating in any way to any access to or use, suspension or termination of the Platform; and
  (b) liability for any special, indirect, consequential or incidental damages, damages for personal injury (including vision impairment or loss), death, misdiagnosis, defamation, loss of profits, interest, savings or revenues, business interruption, loss of programs or other data or costs of replacement goods, or otherwise, even if same have been expressly advised of the possibility of such loss or damages.

To the extent permitted by law, in no event will the aggregate liability of Oculo and its Associates to You in connection with this Agreement exceed the equivalent of one month’s fees of the Group Subscription Fee paid by You.

Where any legislation implies in the agreement any term, condition or warranty, and also renders void any provision in a contract which purports to exclude or modify the application or exercise of, or liability under, such term, condition or warranty will be deemed to be included in these Group Subscriber Terms. However, the aggregate liability of Oculo and its Associates for any breach of such term, condition or warranty will be limited, at Oculo's option, to supplying the services to You again or the payment to You of the cost of having the services supplied again, and You acknowledge and agree that it is fair and reasonable for Us to rely on this paragraph.

Indemnity

You must indemnify and keep indemnified Oculo and its Associates, and each of their respective directors, officers, employees and agents, from and against any claims, losses, liabilities, costs, expenses (including investigative costs, court costs, legal fees, penalties, fines and interest) and damages of any kind whatsoever (including those which are prospective or contingent or consequential) (“Loss”) directly arising out of or in connection with Your Group Subscription, including arising in connection with any breach of these Group Subscriber Terms or the Letter.

Privacy Policy

You acknowledge and agree that Oculo may collect, store, use, disclose and dispose of information collected in connection with these Group Subscriber Terms for the purposes identified in Our Privacy Policy available at http://www.connect.oculo.com.au/privacy-policy, which is incorporated by reference as if fully set forth in these Group Subscriber Terms.

Force Majeure

Oculo will not be liable for any failure to perform, or any delay in performance of, any act required under these Group Subscriber Terms or the Terms of Use by reason of any act of God, act of nature or other event of whatever nature or whatever reason beyond the reasonable control of the party, including any epidemic or outbreak of pandemic disease, fire, act, decree, legislation, regulations or restrictions of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw material, energy or other supplies, impossibility of the use of public or private telecommunications networks, or labour disputes, and performance of such acts shall be excused for the period of such event.

Disputes

If any dispute arises, the parties must at first instance endeavour to resolve it by discussion and agreement. Either party may at any time request by written notice to the other party that a dispute be referred to executive management of both parties. Within 5 business days of such request, each party must by written notice to the other party:
  (a) nominate a member of its executive management with authority to settle the dispute to represent it in discussions;
  (b) ensure that its nominated executive manager is reasonably available to discuss the dispute and nominate a range of times and venues when discussions can take place; and
  (c) provide a written summary of what it sees as the issues in dispute and other relevant facts or information which will assist both executive managers in discussing the dispute. Both nominated executive managers must make every effort to meet and otherwise progress discussions aimed at resolving the dispute. If within 10 business days (or such other time as the parties agree) of a request to refer a dispute to executive management, the nominated executive managers have not met or the dispute otherwise remains unresolved, then subject to this clause, either party may instigate mediation. Neither party may commence litigation to resolve the dispute until mediation has been completed.

Both parties agree to participate in good faith in mediation of the dispute to be administered by a mediator selected by the parties. If after 2 business days of either party having sought to refer the dispute to mediation the parties have not selected a mediator, the mediator will on the application of either party be appointed by the President of the Law Institute of Victoria. Such mediation shall take place in Melbourne (or at such other location as is mutually agreed). The parties must pay the mediator's remuneration in equal shares. Each party must pay its own costs of the mediation. Where the mediator has been appointed by the President of the Law Institute of Victoria, the remuneration of the mediator shall be the amount or rate determined by the President of the Law Institute of Victoria. Nothing in this Agreement prevents a party seeking an injunction or other interlocutory relief at any time.

Applicable Law

This Agreement shall be governed by the laws of the State of Victoria, Australia.

Competent Jurisdiction

In the absence of mutual agreement, any dispute arising from the interpretation and/or performance of this Agreement shall be submitted to the exclusive jurisdiction of the competent Courts of the State of Victoria, Australia.

Amendment and Severability

This Agreement cannot be varied unless in writing and signed on behalf of both parties and the variation must specifically refer to its intention to supersede this Agreement. If any provision of this Agreement is held to be unenforceable, the remaining provisions shall remain in full force and effect.

Entire Agreement

This Agreement contains the entire understanding and agreement between You and Oculo regarding the Platform, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding such subject matter. For the avoidance of doubt, where the terms contained in these Group Subscriber Terms are inconsistent with the terms contained in the Terms of Use or the Letter, these Group Subscriber Terms will prevail.

Precedence

In the event of any inconsistency between these Group Subscriber Terms and the Terms of Use. These Group Subscriber Terms prevail to the extent of an inconsistency.