Terms of Use

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

Updated: 16 October 2018

These terms and conditions (Terms of Use) apply to your use of the Oculo platform [located at http://www.connect.oculo.com.au/terms-conditions/  for Australia and https://www.connect.oculo.co.nz/privacy-policy/ for New Zealand] (Platform) including all applications, tools, information, content, materials, data, products and services made available to you on the Platform from time to time (Services). The Platform is a software platform designed for access and use by health care providers including optometrists, ophthalmologists, general practitioners, support providers and any and all other similar accredited health providers who access and use the Platform and any of the Services ('Health care Provider' or 'You"). The Platform seeks to enable improved digital communication between Health care Providers and streamline the transfer and sharing of Health care Provider data and relevant Patient ('Patient') information, including clinical notes and images, health care records, referral and medical appointment details and related Patient data and information and user generated content (Data).   

These Terms of Use apply to your access and use of the Platform and Services as a legal entity (including as a sole trader, company or partnership). Under these Term of Use, 'Oculo', 'We', 'Our' or 'Us' means CT Operations Pty Ltd (ACN 606 091 258) of Level 3, 373 Little Bourke Street, Melbourne Victoria 3000 trading as 'Oculo'.

By accessing or using the Platform including submitting your registration information on the Platform, you are acknowledging that you have read, understood, accept and agree to be bound by these Terms of Use.

Please therefore take the time to read these Terms of Use carefully before clicking 'I AGREE' below as they contain important information regarding Your legal rights, remedies and obligations, and include various limitations and exclusions.

IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF USE , YOU SHOULD CLICK 'CANCEL' BELOW AND IMMEDIATELY STOP ACCESSING, BROWSING OR USING THE PLATFORM.

 Oculo may from time to time revise any or all of these Terms of Use. We will display a notice on the Platform indicating that changes have been made to the Terms of Use. It is Your responsibility to regularly check the Platform and to review such changes. However, where required by law, We will send You an e-mail notifying You of any material changes to these Terms of Use. If You are unhappy with the amended terms, You may terminate these Terms of Use as set out below under 'Termination'. Your continued use of the Platform after any amendments to these Terms of Use means that You accept such revisions. If You do not agree to any changes, You must not continue to use the Platform.  

Optional Trial Period

Oculo may allow access to and use of the Platform and Services on a trial basis and for an additional period as Oculo may in its sole discretion decide (Initial Term) starting on the day on which You (or another person on Your behalf) pays the then current applicable annual or monthly subscription fee in respect of Your access to and use of the Platform and Services as set out further in these Terms of Use and on http://www.connect.oculo.com.au/ophthalmologytrial/ for ophthalmologists and http://www.connect.oculo.com.au/optometrytrial/ for optometrists (Subscription Fee).

Term

At the end of any Initial Term, these Terms of Use will automatically renew for further successive periods of 12 months (each a Renewal Term), unless and until either You or We terminate Your Account subscription in accordance with these Terms of Use. We will notify You at least 30 days prior to the end of the Initial Term or a Renewal Term that Your subscription is coming to an end and will be automatically renewed.

Other than in the case of breach, You may terminate these Terms of Use at any time during the notification period without incurring further Subscription Fees. as further set out below in these Terms of Use.

Access and Registration

To access and use our Services, you will need to create an account with us (Account) complete the registration and log-in process on our Platform – for ophthalmologists http://www.connect.oculo.com.au/ophthalgroup-freetrial/ and for optometrists http://www.connect.oculo.com.au/ophthalgroup-freetrial/ You must be a registered user to access and use our Platform and Services. You acknowledge that Oculo may accept or reject your registration or sign up at its sole discretion. You must provide accurate, current and complete information during the registration process and keep your Account and profile page information up-to-date at all times. You may not assign or otherwise transfer your Account to another party.

Our Conduct

We will implement good practice security safeguards that are reasonable in the circumstances in compliance with all applicable laws to prevent loss, unauthorised access, use, modification or disclosure of all Data/ and against all other misuse.   

For any Personal Information forming part of Your Data and/or content provided to us or obtained by Us, you acknowledge that:

1. it must be correct, up-to-date and complete. You are responsible for keeping all Data and content, up to date, complete and accurate throughout the term of your registration and at all times when using the Platform and Services; and

2. it will be collected, used, handled, disclosed, stored and deleted by Us only in accordance with the functions and activities authorised by You and Your Patients in the manner set out in and in accordance with the terms of our Privacy Policy: http://www.connect.oculo.com.au/privacy-policy/

We will comply with any reasonable request from You to access any Personal Information forming part of your data on the Platform, subject to compliance with all Privacy Laws and to the extent practicably feasible.

Your Conduct

General Obligations

You must access and use the Platform and Services in a diligent and professional manner, in good faith and for a proper purpose, and in accordance with all Applicable Laws, including Privacy Laws. Without limiting the foregoing, in accessing and using the Platform and Services, you warrant that you comply, and maintain compliance with, at a minimum, the following standards, codes and guidelines may be applicable to You (or Your Location), as each of the following may be amended or replaced from time to time) (together, Codes of Conduct), namely:

  1. 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 all other applicable laws, regulations, rules, policies and codes of conduct; and

  2. 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 https://ranzco.edu/about-ranzco/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.

Specific Obligations

Patient Consent

You acknowledge and agree that Oculo may at its sole discretion enable You through your Account, on or via the Platform, to:

(i) create, upload, post, send and receive and store Data, materials, content and information and (ii) access, browse and view any other Health care Provider user information, including Data and content licensed or authorised by such other Health care Provider users for sharing on or via the Platform.

Without limiting the preceding paragraph, before uploading or disclosing any Data, including any Personal Information forming part of your Data or any user content in relation to a Patient. You warrant, represent and undertake to Us that You have obtained (and will maintain for the Term and at all times) all necessary consents and permissions to allow the collecting, sharing, processing, disclosing and handling by Us in the manner set out in these Terms of Use and Our Privacy Policy, This includes the right  to collect, share and disclose Personal Information forming part of Your Data with other subscribed and authorised Health care Providers using the Platform and the Services.

Without limiting the foregoing or your obligations under all applicable laws (including Privacy Laws), by creating, uploading Data and content and using the Platform and the Services, You acknowledge and agree that:

  1. the Platform is a computerised platform system designed to capture, store and facilitate access to health records (including identifiers, such as Medicare or New Zealand National Health Index numbers) by You and other Health Care Providers, and particularly to streamline the transfer of Patient information during the Patient referral process and you have adequately advised the Patient of the permitted use and purpose of the Platform prior to accessing or uploading or posting any Patient data or Content;

  2. without limiting any other term in these Terms of Use, You are solely responsible for all Data and user content that you make available on or through the Platform. Accordingly, you represent and warrant that either you are the sole and exclusive owner of all Data and content that you have made available on or through the Platform OR you have all rights, licenses, consents and releases that are necessary to grant to Oculo and registered users on the Platform the rights in and to such Data and user content (including personal Information), as contemplated under these Terms of Use;

  3. the Platform simply facilitates the sharing of information for the purposes of You and Health care Providers registered on the Platform providing clinical care to Patients and does not provide medical advice of any kind. Oculo may share your Data (including Personal Information of Patients) with other Health care Providers who access and use the Platform and Services and the proposed use and disclosure under these Terms of Use will not violate or infringe the privacy rights of any individual and you agree and consent to all such data sharing (including under the scope and restrictions as may be set out on your Account) as contemplated under these Terms of Use.

  4. In compliance with all applicable laws and authorisations received, Personal information may be de-personalised, anonymised and/or aggregated for such purposes and use as further set out in these Terms of Use and Privacy Policy;

  5. while in the first instance the Patient should contact You or Your Location to make a request for access to, or correction of, Patient Personal Information, the Patient may contact Oculo for those purposes by email addressed to info@oculo.com.au or info@oculo.co.nz;

  6. data and Content handled by Oculo on the Platform will be stored by Oculo in Australia but may be transferred outside of Australia in accordance with Our Privacy Policy by Our external service providers; and

Where a Patient does not provide consent to permit You to provide Patient Data to Oculo for the above permitted purposes, You must not upload any such Data, content or other information to the Platform.

Consent to Receive Electronic Referrals

If You receive Patient referrals via the Platform, You 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. You agree that such a referral may be communicated electronically and You consent to the receipt of the referral (whether signed electronically or otherwise) once submitted under the name of the relevant Health care Provider.

You may only access or use the Platform and the Services, including Data and content for the purpose of providing clinical care to an existing Patient or to a Patient referred to You (as appropriate). You must not use the Platform or the Services, including Data and content to solicit any Patient directly who has not been the subject to a referral or otherwise to gain an improper advantage or unauthorised Patient access for Yourself or someone else.

Platform Use and Account Maintenance

You may only access and use the Platform via Your unique Account and credentials, including username and password. You must keep your Account details and credentials 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 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 must immediately notify Oculo if you know or have any reason to suspect: (i) that your credentials and passwords have been lost, stolen, misappropriated, or otherwise compromised or (ii) any actual or suspected unauthorized use of your Account. You are solely liable for any and all activities conducted through your Account, whether by your authorised employee, contractors or other permitted user access to the Account  (including any content and data posted or uploaded on the Platform). Oculo accepts no responsibility or liability for any activities conducted on or via your Account.

Your access to and use of our Platform and Services (including all Data and content) are subject to these Terms of Use and any limitations and/or restrictions which we may place on your Account or you (or your end users') access and use [when we authenticate you].

Where You use the Platform or Content to message other service providers it is Your responsibility to ensure that electronic messages sent via the Platform are acknowledged by the recipient. The message delivery process is not complete until You have received a response from the recipient of a message. You agree to re-send any unacknowledged messages via the Platform at regular intervals [for a period of up to one week].

You will not (and will procure that your employees, agents and contractors and related parties and Patients do not):

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

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

  3. use, copy, store, access or otherwise handle any information, Data or content including Personal Information in any way that is inconsistent with these Terms of Use or that is contrary to or violates the privacy rights of any individual, including Patients;

  4. engage in any conduct or activity or allow any activity or conduct that will harm or is likely to harm Oculo's name, reputation or goodwill;

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

  6. disrupt or interfere with any other user's enjoyment of the Platform; or

  7. upload, post, disseminate or otherwise transmit on or through the Platform (including when submitting any content to the Platform in any format) any:

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

    • Content in respect of a Patient other than what is reasonably necessary to facilitate a referral for the clinical care of that Patient and only to the extent authorised by the relevant 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 Patients or entities who have not agreed to be part of such mailings.

You are solely responsible for any actions and communications undertaken or transmitted under Your Account (whether authorised or not).

You acknowledge that the accessibility and functionality of the Platform may require a connection to the internet and may be affected by the strength of the internet connection, browser and computer system. 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. Also, Oculo employs best endeavours to guarantee the security of any Data, materials, information or content transmitted on the Platform.

Oculo also reserves the right to audit or monitor Your Account, including inspecting records of Your use of the Platform and the Services, at any time where Oculo reasonably believes You are, or are likely to be, involved in any inappropriate use of the Platform and/or Services, including but not limited to phishing activity, and without notice to You, to ensure Your compliance with these Terms of Use, but for no other purpose. Oculo may also monitor for customer support purposes, to comply with Applicable Laws, the order of any court or law enforcement authority or similar, or where it is reasonably required to carry out any risk assessment of your activities on the Platform. Notwithstanding, You acknowledge that Oculo has no obligation to monitor, or otherwise audit your access or use of the Platform or the Services or edit or screen any Content or data uploaded by You.

Warranty

In addition to and without limiting any other term or warranty set out in these Terms of Use, in respect of all Patient and user content that You contribute to the Platform (Your Content), You warrant that:

  1. You have all necessary rights to contribute Your Content to the Platform and to allow any Your Content to be used by Oculo in accordance with these Terms of Use and for the purpose of providing the Services;

  2. Your Content:

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

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

  3. neither Your Content nor your posting, uploading, publication, submission or transmittal of Your Content or Our use of Your Content (or any portion thereof) infringes or will infringe, misappropriate or violate a third party's will not infringe any third party Intellectual Property Rights or rights of publicity or privacy when used on, or in connection with, the Platform or the Services, or result in the violation of any applicable law or regulation and no proceedings have been instituted by any third party against You in connection with any of Your Content for the infringement of that party’s intellectual property rights or rights of publicity or privacy of any kind.

Subscription Fees and Payment

You (or another person on Your behalf) must pay the Subscription Fees as set out at http://www.connect.oculo.com.au/ophthalmologytrial/ for ophthalmologists and http://www.connect.oculo.com.au/optometrytrial/ for optometrists and at the times set out at http://www.connect.oculo.com.au/ophthalmologytrial/ for ophthalmologists and http://www.connect.oculo.com.au/optometrytrial/ for optometrists or as otherwise specified by Oculo in writing on any invoice or separate terms document.

All amounts payable to Oculo must be paid in Australian dollars, unless otherwise indicated at http://www.connect.oculo.com.au/ophthalmologytrial/ for ophthalmologists and http://www.connect.oculo.com.au/optometrytrial/ for optometrists. You are solely responsible for considering the impact of current currency exchange rates on any payments and for ensuring payment in the required currency in cleared funds.

All Subscription Fees are exclusive of any applicable taxes, including GST. If any amounts are required by law or regulation to be withheld from any payment due to Oculo and paid to a relevant taxation authority, You must remit such amounts to the relevant taxation authority but without reduction in the payment(s) to Oculo.

Ownership and Licences

Content Licences

So that We can provide Your Data and content to the Health care providers to whom You refer a Patient or communicate with respect to a Patient’s clinical care via the Platform, You authorise Us to exercise certain intellectual property rights in Your Data. Similarly, so that You are able to receive and use Data and content provided by other Health care providers via the Platform, We authorise You to exercise certain intellectual property rights in that Data.  

You hold all rights, title and interest in and to Your Data and. nothing in these Terms of Use assigns, transfers or grants any right, title or interest in any Intellectual Property Rights in Your Data owned or held by You except as set out in these Terms of Use.

Additionally, We hold all rights, title and interest in and to Oculo data, information and materials and nothing in these Terms of Use assigns, transfers or grants any right, title or interest in any Intellectual Property Rights in Our data, information, materials owned or held by Us except as set out in these Terms of Use

By accessing and using the Platform and the Services, including creating, uploading, posting, sending, receiving, storing, or otherwise making available any Data, including user content on or through the Platform, You grant to Us a non-exclusive, royalty-free, worldwide, perpetual irrevocable, sub-licensable and transferable licence to exercise all rights in Your  Data including all user content for the purpose of providing the Services and making the Platform available to You and other Health care Providers (Permitted Purposes). These rights include rights to access, use, store, copy, modify and distribute to registered Health care Providers and otherwise share Data and user content to provide the Platform and the Services as authorised by You.  You acknowledge and consent that your Data and user content (or part thereof) may be viewed, retained, stored, collected, sub-licensed, used, displayed and disclosed to other Health care Providers viewing or accessing the Platform for the Permitted Purposes and as set out in our Privacy Policy.

Other than in respect of Your Content, and where necessary, Oculo grants You a sub-licence to use data on the Platform solely to the extent necessary for You to access and use the Platform and the Services in accordance with and subject to these Terms of Use. Oculo does not claim any ownership rights in any of Your Content.

Depersonalised Content

We may generate sets of depersonalised, anonymised and aggregated data from the Data that You provide to us (Depersonalised Data).  Any Depersonalised Data is and will be anonymised and depersonalised in accordance with all applicable laws and does not and will not contain any Personal Information at any time.

We own, and You assign to Us, any Intellectual Property Rights that may subsist in any Depersonalised Data, and you acknowledge that We may use such Depersonalised Data for marketing, research and other commercial purposes including:

  1. aggregating the Depersonalised Data across all customers for the purpose of analysing the Depersonalised Data in respect of territories, Patient demographics and conditions, and benchmarking; and

  2. where permitted by all applicable laws, artificial intelligence and machine learning purposes [solely for the purposes of improving the Platform and Services provided to You].

We will comply at all times with all applicable laws and the terms of our Privacy Policy in our use and disclosure of any Depersonalised Data.

Moral rights

You will obtain any moral rights waivers and consents necessary to allow Oculo to freely use, modify and develop the Data as set out in these Terms of Use and to the extent permissible by all applicable laws, You consent, on behalf of any author, to Oculo making, and allowing third parties to make, any use of the User Data that would otherwise infringe any non-assignable personal rights that may subsist in the User Data.

Intellectual Property Rights

Oculo owns and holds all rights, title and interest in any Intellectual Property Rights in the Platform and the Services (including without limitation in the software, designs, arrangements, layouts, sequences, forms and graphics pertaining to the Platform, all trademarks, product names, and company names and/or logos displayed on the Platform, and all page headers, custom graphics, button icons, and logos which are service marks and/or trade dress) and You acknowledge Your use of the Platform and the Services does not give You or any other person any rights, title or interest in any Intellectual Property Rights that may subsist in the Platform and Services, other than in the User Data. Nothing on the Platform may be copied, reproduced, imitated, or used, in whole or in part other than as set out in these Terms of Use, without the prior written permission of Oculo.

In consideration of the payment of the Subscription Fees under these Terms of Use, We grant You a non-exclusive, non-transferable, revocable, limited licence solely to access and use the Platform and Services (including Data (other than Your Content which is licensed to Us)) in accordance with these Terms of Use for the Term.  

Notice of Inappropriate Use or Data Breach

If You believe that any Data has been improperly used on the Platform, or that any other person has engaged in any conduct on the Platform or when using the Services contrary to these Terms of Use, including if You have knowledge of or suspect any security incident, potential or actual Data breach, or any issue of any kind that may potentially jeopardise Data or Your Content in any way, You must promptly notify Us by email addressed to: info@oculo.com.au or info@oculo.co.nz.  The email must set out full details of the incident, issue, claim or conduct and the scope of remedial measures proposed or being undertaken to resolve an incident or issue.  

Links to Third Party Websites

The Platform may contain links to third party websites and You acknowledge that Oculo does not control any third party website or any products or services offered by third parties through the Platform. These links do not constitute an endorsement, sponsorship, affiliation, association or recommendation by Oculo of the linked websites 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 a payment of any applicable Subscription Fee, We may suspend Your Account until such outstanding amount is paid. If Your Account is suspended for 90 days or more due to non-payment, Oculo may terminate Your Account and these Terms of Use.

If Oculo reasonably believes You are, or are likely to be, involved in any appropriate use of the Platform, including but not limited to phishing activity, We may suspend Your Account at any time without notice to You.

You may request to cancel your Account during any Trial Period on providing notice to Oculo by email at support@oculo.com.au or support@oculo.co.nz.

Termination

If You wish to cease using the Platform and the Services at any time during the Term (other than during a Trial Period), You may do so for any reason at any time. 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, by notice in writing to Oculo addressed to support@oculo.com.au or support@oculo.co.nz and We will implement Your request promptly, within 2 Business Days. 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 these Terms of Use and Your Account without liability to You or any third party at any time for any reason, and may also terminate if: (i) You breach these Terms of Use and the breach remains uncured for a period of 5 (five) business days; (ii) any payment of an applicable Subscription Fee in respect of Your Account remains unpaid for more than 90 days; (iii) You cease to provide services at Your Location and Your Account is linked to that Location (if applicable); or (iv) You are, in Oculo's reasonable opinion, involved in any inappropriate use of the Platform. 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 within 24 hours following the issue 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 only be entitled to a refund of the pro-rata portion of any Subscription Fee from the date of termination of these Terms of Use (except in the event of Your breach of these Terms of Use, where no refund will be made available);  

  2. We may recover any amounts owing to Us (without limiting any other rights or remedies we may have in the event of Your breach); and

  3. We will, upon Your request and where legally permitted to do so, provide to You a copy, in portable document format (pdf), of any Data held on the Platform in respect of Your Account. You acknowledge and agree that, under Privacy Laws, We have certain obligations in respect of retention and non-destruction of copies of Personal Information forming part of your Data and we must comply with all such laws in performing our obligations under these terms.

Disclaimers, Limitations of Liability and Indemnity

Medical Disclaimer

Data on the Platform is provided by Health Care Providers for use by Health Care Providers. As Data is submitted by Health Care Providers (including You), Oculo cannot guarantee its accuracy and assumes no legal liability or responsibility for the accuracy, currency or completeness of any Data. You must make Your own independent assessment of the currency, relevance and accuracy of any Data relating to a Patient before accessing or using that Data, making any authorised referrals or suggesting a diagnosis or recommending or instituting a course of treatment for that Patient.

General Disclaimer

The Platform and Services, including all Data, is provided on an “as is” and “as available” basis.

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

  1. Your use of the Platform, the Services and Data including Your Content is at Your sole risk;

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

  3. Except as otherwise expressly agreed in writing, Oculo expressly disclaims any implied or express representations or warranties of any kind relating to the use of the Platform, the Services and Data of any kind;

  4. Without limiting the foregoing, Oculo assumes no responsibility for, and makes no warranty or representation:

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

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

    • that the Platform or the Services will meet Your requirements in any way;

    • that any access to, or use of, the Platform and/or the Services 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 is not liable to You, your Patients or any other third party  for any:

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

    • Data uploaded, transferred or shared on the Platform or for any use of the Platform and the Services by You or any Health Care Providers;

    • interruptions or disruptions in any way on the Platform; or

    • 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, unauthorised access, malware or viruses.

No advice or information, whether oral or written, obtained by You from or through Your use of the Platform, Services, Data or otherwise from Oculo, creates any warranty not expressly made in these Terms of Use.  

Limitation of liability

To the maximum extent permitted by applicable laws, Oculo excludes and limits its liability:

(i) 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, use, suspension or termination of the Platform and the Services by You, Your Patients, users or any other party;

(ii) for any special, indirect, consequential or incidental damages;

(iii) arising out of or in connection with Your Patient misdiagnosis, defamation, loss of profits or revenues, business interruption, loss of programs, loss of data, content, information, materials, Data (including Personal Information), costs of replacement goods or services, or otherwise,

even if, in each case, we have been expressly advised of the possibility of such liability, loss or damages.

Nothing in these Terms of Use excludes or limits either party's liability for loss in relation to death or personal injury caused by that party's negligence, wilful or reckless misconduct, fraud or fraudulent misrepresentation, in which case, that party's liability will be limited to the greatest extent permitted by applicable law.

Except as expressly provided in the following sentence and to the extent permitted by all applicable laws, in no event will the aggregate liability of Oculo to You in connection with these Terms of Use exceed the lesser of:

(i) $500; or

(ii) the relevant portion of the most recent Subscription Fee paid by You or on Your behalf, such portion to be calculated by dividing such fee by the number of Patients using the Platform and the Services as at the date of payment of that Subscription Fee.

Your liability under these Terms of Use is limited in the aggregate to the total amount of Subscription Fees paid or payable by You to Oculo during the Term of these Terms of Use.

Nothing in these Terms of Use excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by applicable law which cannot lawfully be excluded, restricted or modified (a Non-excludable Provision). However, if a Non-excludable Provision can be limited, then the aggregate liability of Oculo for any breach of a Non-excludable Provision will be limited, at Oculo's option, to supplying the services to You again or the payment of the cost of having the services supplied again.

Indemnity

To the extent permitted by all applicable laws, you must indemnify, and keep indemnified, Oculo and its 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 the Services  and any Data, including arising in connection with any breach of these Terms of Use.

Force Majeure

Neither Oculo nor You will be liable for any failure to perform, or any delay in performance of, any act required under these Terms of Use by reason of:(i) any act of God, (ii) act of nature or other event of whatever nature or whatever reason beyond the reasonable control of the other party, including any epidemic or outbreak of pandemic disease, fire, act, decree, 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 either party's obligations under these Terms of Use shall be excused for the period of such event. If the force majeure event set out here continues for a period exceeding 3 months either may terminate these Terms of Use by providing at least 30 days prior written notice to the other party.  

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

Any dispute arising from the interpretation and/or performance of these Terms of Use (including any non-contractual dispute) shall be submitted to the exclusive jurisdiction of the competent Courts of the State of Victoria, Australia and the Commonwealth of Australia.

Amendment and Severability

Any provision of these Terms of Use held to be wholly or partially unenforceable or void is severed to the extent it is unenforceable or void. The remaining provisions of these Terms of Use 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.

Definitions

In these Terms of Use, capitalised terms are as defined below:

Account means a Health Care Provider's Account on the Platform which enables them to access the Platform and the Data held on the Platform.

Business Days means a day on which banks are open for business, excluding Saturdays, Sundays and public holidays in Victoria, Australia.

Content means text, graphics, images, scans, pictures, photos, animations, music, software, audio, video, information or other materials in any format.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, rights in confidential information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration), and all rights or forms of protection of a similar nature, or having equivalent or similar effect to any of these, which may subsist anywhere in the world.

Location means the “bricks and mortar” premises at which You provide health care services (whether as an employee, contractor, owner or otherwise).

Patient means any individual who is has sought health care treatment or attending as an Patient of You as a Health care Provider.

Personal Information means an opinion or information about an identified or reasonably identifiable individual, whether recorded in material form or not.

Privacy Laws means any legislation (to the extent You or Oculo are subject to it), whether Australian or otherwise, which affects privacy or any Personal Information (including the collection, storage, use or processing of such information), including the Privacy Act 1988 (Cth), and any codes of conduct, recommendations, directives or orders made or issued under such legislation or similar anywhere in the world.

Term means the Initial Term and any Renewal Term(s) of these Terms of Use.