Subscriber Terms

CT Operations Pty Ltd (ACN 606 091 258) trading as OculoTM

 

In addition to the terms set out in the cover letter from Oculo to You (being an owner or operator of an ophthalmic or optometric practice or a low vision service provider) provided at the same time as this document (Letter), we agree to make the OculoTM Platform available to You and users at Your Location 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 (Subscriber Terms), and the terms set out in the Letter (together, the Agreement).  In this Agreement, a reference to Your Subscription is a reference to the access to the Platform granted to You under this Agreement, and a reference to a Location is a reference to a bricks and mortar premises at which You carry on an ophthalmic or optometric practice or provide low vision services (as applicable), and a reference to Your Subscription is a reference to the access to the Platform at the Location granted to You under this Agreement.  In addition, each user of an account linked to Your 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 due in respect of Your Subscription (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 Subscription Fee is due. 

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 Subscription in accordance with these Subscriber Terms.

Your Obligations

You will pay the Subscription Fee in accordance with this Agreement. 

You further agree to, and to use Your reasonable endeavours to ensure that each user of an account linked to Your Subscription does, 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:

o   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);

o   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:

o   in Australia: the publications titled Code of Conduct for Optometrists, Policy on Health Records and Guidelines for Use of Scheduled Medicines published by the Optometry Board of Australia (as amended from time to time) available at http://www.optometryboard.gov.au/Policies-Codes-Guidelines.aspx, and the publication titled Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) published by the Medical Board of Australia (as amended from time to time) available at http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx; and

o   in New Zealand: the Health Practitioners Competence Assurance Act and the Standards of Clinical Competence, Standards of Cultural Competence, and Standards of Ethical Competence published by the Optometrists and Dispensing Opticians Board from time to time available at https://www.odob.health.nz/standards; the Professional Code of Conduct published by the Royal Australian and New Zealand College of Ophthalmologists available at http://www.ranzco.edu/index.php/about/our-organisation/code-of-conduct; the publication titled Good Medical Practice published by the Medical Council of New Zealand (as amended from time to time) available at https://www.mcnz.org.nz/assets/News-and-Publications/good-medical-practice.pdf; and

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

As soon as practicable following Your acceptance of the Letter and these Subscriber Terms, so that We can provide the Platform to You, You must provide Us with details of a designated person at the Location who will be responsible for the Location's subscriber account (Location Account Manager).

You Acknowledge and agree that You and/or the Location Account Manager must ensure that, after a user who provides services (as an employee or contractor) to You ceases to provide such services, the Location Account Manager immediately notifies Us and either (i) terminates that user's access to the Platform or (ii) requests Oculo to do so.

Oculo Obligations

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 You with access, either onsite or remotely, to Content submitted by any user of an account linked to Your Subscription to the extent reasonably necessary for You to inspect such Content to confirm compliance with the obligations of this Agreement and/or perform Your own security check within parameters to be agreed between the parties, but only to such extent;

-          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 to ensure best practice access control is maintained;

-          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 resumes of service provider staff involved in the provision or support of the Platform;

-          ensure that any data limit imposed on Your subscriber account will not be less than 500 MB of Content per day (Minimum Daily Upload Quota), and, in the event that We cannot support such Minimum Daily Upload Quota, We will advise You as soon as is reasonably practicable;

-          use best endeavours to ensure that the Platform (including any Content) is maintained in accordance with the Privacy Legislation and to comply with the Data Breach Notification guidelines published by the Office of Australian Information Commissioner available at www.oaic.gov.au/privacy/privacy-resources/privacy-guides/data-breach-notification-a-guide-to-handling-personal-information-security-breaches (as amended from time to time) and at all times provide a level of security in respect of the Platform which is:

o   in accordance with best practice in the eye care industry; and

o   meets any specific security threats and prevents unauthorised access to the Platform,

-          take all 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 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 fees in respect of eFax transmissions and administering payment transactions.  All fees quoted by Oculo are exclusive of GST, with GST being added at the time of payment. 

Upon commencement of any applicable trial period, or if there is no trial period then once payment of the applicable Subscription Fee is complete, We will send the Location Account Manager an email containing a unique subscriber account username and password for the Platform, which will constitute Our delivery of the Platform to You.  If You are the owner or operator of an ophthalmic practice, the Location Account Manager may then (using the subscriber account) create such ophthalmologist accounts as subscribed for (but no more than the amount subscribed for), and such clinical support person and practice administrator accounts as Your Location may require, from time to time.  If You are the owner or operator of an optometric practice, the Location Account Manager may then (using the subscriber account) create such optometrist, clinical support person and practice administrator accounts as Your Location 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 and Termination

Suspension

If You do not pay any applicable 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 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  or (ii) becomes insolvent, appoints an administrator or liquidator or goes into receivership.

Oculo may terminate Your Subscription or the access to the Platform of any account linked to Your Subscription without liability to You or any third party if (i) You breach this Agreement, or (ii) any payment of the applicable Subscription Fee (including under a Monthly Payment Plan) remains unpaid for more than 90 days or (iii) for any reason on six (6) 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 subscriber account and termination will be effective one day after the sending of that e-mail.

If Your 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 Subscription Fee and We may recover any amounts owing to Us;

-          all accounts linked to Your Subscription will terminate; and

-          Oculo will, upon Your written request, provide You with a copy of all Content held on the Platform in respect of Your Subscription in portable document format (pdf).

Disclaimers, Limitations of Liability and Indemnity

General Disclaimer

The Platform, including content, is provided on an Òas isÓ and Òas availableÓ basis.  You acknowledge having read and understood these 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 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:

o   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);

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

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

o   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:

o   interference with or damage to Your computer system that may occur in connection with Your Subscription;

o   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.

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 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 eye care 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, including, damages for personal injury (including vision impairment or loss), death, misdiagnosis, defamation, loss of profits 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.

Except as expressly provided in the following sentence, in no event will the aggregate liability of Oculo and its Associates to You in connection with this Agreement exceed one twelfth of (i) the most recent Subscription Fee paid by You or (ii) the aggregate of the most recent 12 monthly instalments. 

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, such term, condition or warranty will be deemed to be included in these 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) (ÒLossÓ) directly arising out of or in connection with Your Subscription, including arising in connection with any breach of these 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 Subscriber Terms for the purposes identified in Our Privacy Policy available at https://oculo.com.au/privacy_policy, which is incorporated by reference as if fully set forth in these 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 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.

Governing Law; Venue and Jurisdiction

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 Subscriber Terms are inconsistent with the terms contained in the Terms of Use or the Letter, these Subscriber Terms will prevail.

 

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