Terms of Use

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

Thank you for your interest in Oculo™, a software platform designed to enable improved digital communication between optometrists, ophthalmologists and other eye care providers (Platform), including the exchange of patient information such as clinical notes and images as well as provider details (Content). The principal purpose of the Platform is to streamline the transfer of such information for patient referrals and to facilitate clinical care.

The following are terms of a legal agreement between You (being an individual user of the Platform) and CT Operations Pty Ltd (ACN 606 091 258) trading as Oculo™ (Oculo, We or Us). By accessing or submitting the registration information on the Platform (at which point We ask You to agree to these Terms of Use) You create an agreement with Us. Under this agreement, You agree to be bound by these terms of use as amended from time to time (Terms of Use). In return, We agree to allow You to access and use the Platform for any applicable trial period and the period of 12 months (Initial Term) starting on the day on which:

  • You (or another person on Your behalf) pays the then current applicable annual subscription fee in respect of Your access to and use of the Platform (Subscription Fee); or
  • where a monthly payment plan has been agreed in respect of Your access to and use of the Platform (Monthly Payment Plan), You (or another person on Your behalf) pays the first monthly instalment of the Subscription Fee.

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 Terms of Use.

Please take the time to read these Terms of Use carefully as they contain important information regarding Your legal rights remedies and obligations, and include various limitations and exclusions. If You do not agree with these Terms of Use, You may not register for, access, or use the Platform. In these Terms of Use, a reference to a Location is a reference to a “bricks and mortar” premises at which You provide services (as an employee or contractor) in relation to one or more ophthalmic or optometric practices or low vision service providers (as applicable).

Our Conduct

We will use all reasonable endeavours to ensure that the Platform (including any Content) is maintained 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), namely: in Australia: 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); and in New Zealand: Privacy Act 1993, Health Information Privacy Code 1994, HISO 10029 Health Information Security Framework, HISO 10064:2017 Health Information Governance Guidelines, Retention of Health Information Regulations 1996 and 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.

We will implement such best practice security safeguards as are reasonable in the circumstances to prevent loss, unauthorised access, use, modification or disclosure of the Content and against all other misuse. The safeguards We will implement have been derived from the requirements in the Australian Government Information Security Manual (see http://www.asd.gov.au/infosec/ism/index.htm). While in the first instance the patient should contact You or Your Location to make a request for access to, or correction of, the Content, We will provide access to, and correct, relevant Content upon request of a patient, and We will keep and not destroy Content, where We are required to do so by the Privacy Legislation. We operate using cloud-based servers located within Australia. We will not transfer any Content outside Australia, but We may transfer it interstate within Australia. If You are located in New Zealand, You (and where applicable Your patients) consent to Content being transferred to our cloud-based servers located within Australia.

Your Conduct

General Obligation

You must access and use the Platform and any Content in a diligent and professional manner, in good faith and for a proper purpose, and in accordance with the Privacy Legislation, and the following standards, codes and guidelines as may be applicable to Your Location (together, Codes of Conduct), namely:

Specific Obligations

Without limiting the preceding paragraph, before using the Platform to upload Content in relation to a patient, You must obtain that patient’s informed consent to do so, including advising the patient that:

  1. the Platform is a computerised system designed to capture, store and facilitate access to eye health medical records (including identifiers, such as Medicare or New Zealand National Health Index numbers) by responsible eye care professionals, and particularly to streamline the transfer of patient information during the patient referral process and to otherwise facilitate clinical care, including clinical communication between optometrists and ophthalmologists, and other relevant medical practitioners and support personnel;

  2. the Content will be collected, stored, accessed, used and disclosed by Oculo for the purposes of providing the Platform. It may be de-identified and used for other purposes. While in the first instance the patient should contact You or Your Location to make a request for access to, or correction of, the Content, the patient may contact Oculo for those purposes by email addressed to support@oculo.com.au or support@oculo.co.nz;

  3. the Content may be transferred interstate within Australia but will not be transferred out of Australia; and if You are located in New Zealand, that the Content will be transferred to cloud-based servers within Australia but will not be transferred out of Australia; and

  4. if the patient does not permit You to provide the Content to Oculo, the consequences of such refusal (i.e. where the patient is being referred to another eye care provider, a possible delay in response or receiving treatment from that other eye care provider due to reliance on hard copy patient referral processes).

If You are an ophthalmologist or other eye service provider receiving patient referrals via the Platform, You consent to receiving, and agree that a patient referral via the Platform constitutes, a referral for the purposes of the Health Insurance Act 1973 (Cth) and the Health Insurance Regulations 1974 (Cth) and any equivalent New Zealand health codes, legislation or regulations, and, specifically, You agree that such a referral may be communicated electronically and You consent to the referral being signed by the referring eye service provider by way of such referral being submitted under the name of that eye service provider.

Platform Use and Account Maintenance

You may only access and use the Platform via Your unique username and password, and You must keep such username and password, and other account details, safe, secure and secret, and must not share them with anyone else, and must prevent unauthorised use of the Platform. You must comply with all policies of Oculo or its Associates contained in, or referred to on, the Platform or as otherwise communicated to You by or on behalf of Oculo from time to time.

You may only access or use the Platform or any Content for the purpose of providing clinical care to an existing patient or to a patient referred to You (as appropriate), and You must not use the Platform or any Content to solicit any other patient or otherwise to gain an improper advantage for Yourself or someone else.

You further agree not to:

  1. use or attempt to use another's account, service or system without authorisation from Oculo, or create or use a false identity on the Platform;

  2. attempt to obtain unauthorised access to any Content or any aspect of the Platform which is restricted from Your access;

  3. disrupt, modify or interfere with the security of, or otherwise abuse, the Platform, or any Content, services, system resources, software (including source code and object code), accounts, servers or networks connected to or accessible through the Platform;

  4. disrupt or interfere with any other user's enjoyment of the Platform; or upload, post, disseminate or otherwise transmit on or through the Platform any:

    • unlawful, defamatory, harassing, libelous, tortious, abusive, offensive, threatening, or obscene material of any kind;

    • Content in respect of a patient other than such Content as may be reasonably necessary to facilitate the clinical care of that patient;

    • any viruses or other harmful, disruptive or destructive subject matter; or

    • spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings.

In addition, You agree that, save in the instance of a material breach of any of the obligations imposed on Us under this Agreement, You are solely responsible for actions and communications undertaken or transmitted under Your account.

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. Oculo also reserves the right to audit Your account, including inspecting records of Your use of the Platform, at any time and without notice to You, to ensure Your compliance with these Terms of Use but for no other purpose. For the avoidance of doubt, Oculo will not, nor is it obliged in any way to, conduct any audit of the standard of clinical care being provided via the Platform (including via Your account).

Warranty

In respect of all Content which You contribute to the Platform (Your Content), You warrant that:

  1. each patient to whom Your Content relates has given their informed consent for Oculo to collect, store, access, use and disclose such content for the purposes of providing the Platform and otherwise in accordance with these Terms of Use;

  2. You have all necessary rights to contribute such content to the Platform and to allow such content to be used in accordance with these Terms of Use;

  3. such content:

    • has been collected by You in a diligent and professional manner and in accordance with, and in such manner that when used for the purposes of providing the Platform and otherwise in accordance with these Terms of Use will comply with, the Privacy Legislation, the Codes of Conduct, and all other applicable laws, regulations, rules, policies and codes of conduct relevant to You or Your Location;

    • is accurate, relevant, up to date and complete and comprises legitimate and original content; and

    • will not infringe any third party intellectual property rights when used on, or in connection with, the Platform.

Ownership and Licences

Content Licences

So that We can provide Your Content to the eye care providers or medical practitioners to whom You refer a patient or communicate with respect to a patient’s clinical care via the Platform, You must authorise Us to exercise certain intellectual property rights in Your Content. Similarly, so that You are able to receive and use Content provided by other eye care providers or medical practitioners via the Platform, We need to authorise You to exercise certain intellectual property rights in that Content. These authorisations are known as licences, and are granted in the following paragraph. You own all rights in Your Content (as between the parties). To enable Oculo to provide the Platform, You grant to Us a non-exclusive, royalty-free, perpetual licence to exercise all rights in Your Content (including the right to grant sub-licences), which We accept. Other than in respect of Your Content, Oculo grants to You a sub-licence to use the Content to the extent necessary, and only to such an extent, for You to access and use the Platform.

Moral rights etc

Despite any provision to the contrary at law, You consent on behalf of any author to Oculo making, and allowing third parties to make, any use of Your Content that would otherwise infringe any non-assignable personal rights which may subsist in Your Content.

Platform Intellectual Property Rights and Data

All rights in all software, designs, arrangements, layouts, sequences, forms and graphics pertaining to the Platform belong to Oculo. All trademarks, product names, and company names and/or logos displayed on the Platform are either trademarks or registered trademarks of Oculo or its Associates and may not be reproduced, imitated, or used, in whole or in part, without the prior written permission of Oculo. All page headers, custom graphics, button icons, and logos are service marks, trademarks and/or trade dress of Oculo or its Associates and may not be reproduced, imitated, or used, in whole or in part, without the prior written permission of Oculo.

We grant You a non-exclusive licence to access and use in good faith the Platform in accordance with these Terms of Use. Such licence is granted in consideration of payment of certain fees by You (or on Your behalf) and the assignment of rights under this section. You acknowledge that using the Platform does not give You or any other person any interest in any intellectual property rights that may subsist in the Platform, other than in Your Content.

We may de-identify and use any information generated by You in connection with Your use of the Platform (Data), including any metadata, usage data and statistics, in order to give effect to this Agreement and for marketing and research purposes in relation to the Platform and eye health care, and, notwithstanding anything to the contrary in these Terms of Use, You hereby assign to Us any intellectual property rights that may subsist in any Data. Other than in relation to Data, Oculo does not make any ownership claim to rights in Your Content, and Your Content (as between the parties) belongs to You.

Privacy Policy

You acknowledge and agree that Oculo may collect, store, use, disclose and dispose of information collected through the Platform for the purposes identified in our Privacy Policy [http://www.connect.oculo.com.au/privacy-policy] or [http://www.connect.oculo.co.nz/privacy-policy], which is incorporated by reference as if fully set forth in these Terms of Use.

Notice of Inappropriate Use

If You believe that Your Content has been improperly used on the Platform, or that any other person has engaged in any conduct contrary to these Terms of Use, please contact Us by email addressed to support@oculo.com.au or support@oculo.co.nz.

The Platform may (from time to time) contain links to other Web sites. These links are provided as a convenience and do not constitute an endorsement, sponsorship or recommendation by Oculo of or affiliation or association of Oculo with or responsibility of Oculo for the linked Web sites or any content or products available on or through such sites. If You decide to visit any linked site, You do so at Your own risk and it is Your responsibility to take all protective measures to guard against viruses or other destructive elements.

Suspension and Termination

Suspension

If You (or another person on Your behalf) fails to make any payment of the applicable Subscription Fee (including under a Monthly Payment Plan), We may suspend Your access and use of the Platform until such outstanding amount is paid. If Your account is suspended for 90 days or more due to non-payment, Oculo may take such action as set out in the following paragraphs.

Termination

If You wish to cease using the Platform, You must follow the appropriate administrative procedures at the relevant Location to enable You to do so (e.g. by contacting Your Location’s practice manager or equivalent), or if You are a sole practitioner, You may terminate Your account for any reason at any time by notice in writing to Oculo addressed to support@oculo.com.au or support@oculo.co.nz and We will implement Your request promptly. For security reasons, requests to cancel Your account via phone will not be effective and Oculo will not be liable for any loss arising in connection with such an attempted cancellation.

Oculo may terminate Your account or Your access to the Platform without liability to You or any third party if (i) You breach these Terms of Use, (ii) any payment of the applicable Subscription Fee (including under a Monthly Payment Plan) in respect of Your access to the Platform remains unpaid for more than 90 days, or (iii) You cease to provide services at the Location and your account is linked to that Location (if applicable). If We exercise any such termination right We will send an e-mail to the e-mail address recorded on Your account and termination will be effective one day after the sending of that e-mail.

If Your account is terminated (either by You or Us):

  1. You (or if a person paid on Your behalf, that person) will not be entitled to any refund of any portion of the Subscription Fee and We may recover any amounts owing to Us; and

  2. We will, upon Your request and where legally permitted to do so, provide to You a copy in portable document format (pdf) of any of Your Content held on the Platform in respect of your access and use of the Platform under these Terms of Use. You acknowledge and agree that, under the Privacy Legislation, We have certain obligations in respect of retention and non-destruction of copies of Your Content We hold.

Disclaimers, Limitations of Liability and Indemnity

Medical Disclaimer

Content on the Platform is provided by eye care professionals for use by other eye care providers and medical practitioners. As Content is submitted by individual users (including You), Oculo and its associates (including licensors) (Associates) cannot guarantee its accuracy and assume no legal liability or responsibility for the accuracy, currency or completeness of the information. Eye care professionals, medical practitioners and eye care providers (including You) must make their own independent assessment of the currency, relevance and accuracy of Content relating to a patient before suggesting a diagnosis or recommending or instituting a course of treatment for that patient.

General Disclaimer

The Platform, including Content, is provided on an “as is” and “as available” basis. You acknowledge having read and understood these Terms of Use, including the "Medical Disclaimer", and any other conditions brought to Your attention in the course of Your access to, or use of, the Platform.

To the maximum extent permitted by law, You expressly agree that:

  1. Your use of the Platform and Content is at Your sole risk;

  2. We rely on You and Your professional skill and judgment in Your access to and use of the Platform, including providing and interpreting any Content;

  3. 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;

  4. 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

  5. Oculo and its Associates are not liable to You or anyone else for any:

    • interference with or damage to Your computer system that may occur in connection with Your use of the Platform;

    • acts or omissions of Your or the relevant Location’s 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 Terms of Use. 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 liability to any person for loss or damage of any kind (howsoever caused, including by negligence) arising from or relating in any way to any access to or use, suspension or termination of the Platform (including 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 these Terms of Use exceed the lesser of $500 or the relevant portion of the most recent Subscription Fee paid by You or on Your behalf in respect of the Location, such portion to be calculated by dividing such fee by the number of users in that Location as at the date of payment of that Subscription Fee (or the first monthly instalment). 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 terms of use. 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 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) directly or indirectly arising out of or in connection with Your use of the Platform and any Content, including arising in connection with any breach of these Terms of Use.

Force Majeure

Oculo will not be liable for any failure to perform, or any delay in performance of, any act required under these 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

These Terms of Use 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 the present Terms of Use shall be submitted to the exclusive jurisdiction of the competent Courts of the State of Victoria, Australia.

Effective Date, Amendment and Severability

These Terms of Use are effective as of 1 January 2018. Oculo may from time to time revise these Terms of Use (including the Privacy Policy) by updating this posting, and it is Your responsibility to regularly check the Platform to determine if there have been changes to these Terms of Use and to review such changes. However, where required by law and otherwise from time to time, We will send You an e-mail notifying You of any material changes to these Terms of Use or the Privacy Policy, and to provide You with news. Your continued use of the Platform after any such updating means You accept such revisions and any changes to the Privacy Policy will apply both to User Information and Usage Data We already have about You at the time of the change, and any such information created or received after the change takes effect. If You do not agree to any changes, You must not continue to use the Platform. If any provision of these Terms of Use is held to be unenforceable, the remaining provisions shall remain in full force and effect.

Entire Agreement

These Terms of Use contain the entire understanding and agreement between You and Oculo regarding the Platform, and supersede all prior and contemporaneous agreements and understandings between the parties regarding such subject matter.