CT Operations International USA Inc. of 1209 N Orange St, Wilmington, DE 19801, United States ("Oculo", "We", "Ours", "Us")
- To access and use Our Platform and Services, you will need to create an Account with us by completing the registration and log-in process on Our Platform: https://www.oculo.co.
- 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 or impose limitations or restrictions on Your Account in 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.
- You must prevent unauthorized access to the Platform or use of the Services and must immediately notify Your manager if You know or have any reason to suspect: (i) that Your account credentials have been lost, stolen, misappropriated, or otherwise compromised; or (ii) any actual or suspected unauthorized use of Your Account or Your account credentials has occurred.
- You acknowledge that You remain fully responsible for all acts and communications and for any liabilities incurred through use of Your Account or Your account credentials (whether lawful or unlawful), including for any Data and Content posted or uploaded on the Platform or made available through the Services, and that such acts will be deemed to have been completed by You.
We will implement good practice security safeguards that are reasonable in the circumstances and in compliance with Applicable Laws to prevent loss, unauthorized access, use, modification or disclosure of all Data and Content uploaded by You or otherwise made available through the Platform by You or on Your behalf, and against all other misuse.4.Your Conduct 4.1.General Obligations
You must access and use the Platform and Services with all due care, diligence and skill, in a professional manner, in good faith and for a proper purpose, and in accordance with all Applicable Laws. Without limiting the foregoing, in accessing and using the Platform and Services, you warrant that you comply, and will maintain compliance with, at a minimum, applicable standards, guidelines, policies and codes of conduct relevant to You or Your Location, Your professional obligations or Your use of the Platform and Services (together, Standards, Policies and Codes ).4.2.Specific Obligations
You acknowledge and agree that Oculo may at its sole discretion:
- enable You through Your Account to create, upload, post, send and receive and store Data and Content; and
- terminate your access to, or ability to browse and view any other Health Care Provider Data and Content, including Data and Content licensed or authorized by such other Health Care Provider users for sharing on or via the Platform or Services.
Without limiting the preceding paragraph, by uploading or disclosing any Data and Content, including any Personally Identifiable Information or Protected Health Information forming part of Your Data and Content in relation to a Patient, You warrant, represent and undertake to Us that such Data and Content:
- is accurate, up-to-date and complete. You acknowledge that You are responsible for keeping Your Data and Content accurate, up to date and complete throughout the term of your registration and at all times when using the Platform and Services; and
- has been collected, stored, used and disclosed in compliance with all Applicable Laws and Standards, Policies and Codes of Conduct (including obtaining and maintaining any necessary consents or permissions) and the use of such Personally Identifiable Information by Us for the purposes of providing the Platform and Services, and otherwise as contemplated in this Agreement, will not result in a breach of any Applicable Laws or Standards, Policies and Codes of Conduct. This includes the right to collect, share and disclose Personally Identifiable Information forming part of Your Data and Content with other subscribed and authorized Health Care Providers using the Platform and the Services as directed by You.
- If Applicable Law requires you to obtain Patient authorization or consent to provide Patient Data and Content to Oculo for the above permitted purposes, You must not upload any such Data and Content to the Platform without such authorization or consent.
- Without limiting the foregoing or your obligations under all Applicable Laws, by using the Platform and the Services and uploading Your Data and Content, You acknowledge and agree that:
- the Platform is a computerized platform system designed to capture, store and facilitate access to health records by You and other Health Care Providers, and particularly to streamline the transfer of Patient information during the Patient referral process and you have obtained the Patient’s consent prior to accessing or uploading or posting any Patient Data and Content;
- the Platform facilitates the sharing of information by You 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. You may use the Platform to share Your Data and Content (including Personally Identifiable Information of Patients) with other Health Care Providers who access and use the Platform and Services and by uploading Your Data and Content to the Platform you are authorising and directing us to use the Platform and Services to make Your Data and Content available to the nominated Health Practitioner;
- If You receive Patient referrals via the Platform, You agree that such referrals may be communicated to you electronically.
- 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 unauthorized Patient access for Yourself or someone else.
- Where You use the Platform, Services or Data and Content to message other service providers it is Your responsibility to ensure that such electronic messages are acknowledged by the recipient by confirming with the recipient directly. The message delivery process is not confirmed until You have received a response from the recipient of a message.
You acknowledge and agree as follows:
- You may only use the Platform and Services for Your own internal business purposes or as otherwise expressly permitted under this Agreement;
- the Platform and Services are provided only for Your benefit;
You will not:
- use or attempt to use another user's account, service or system, or create or use a false identity or Account on the Platform;
- sublicense, transfer, sell, rent or otherwise provide access to the Platform or Services to any third party;
- access or attempt to access any Data and Content on the Platform or Services which is not owned by You, or provided on Your behalf, except as expressly permitted under this Agreement;
- reproduce, disclose, decompile, disassemble, reverse engineer or modify the Platform or Services, or any aspect of any of the foregoing, or be involved in development or commercialization of any product or service which competes with the Platform or Services (or any aspect thereof);
- 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;
- disrupt, modify or interfere with the security of, or otherwise abuse, the Platform, Services, any Data and Content, system resources, software (including source code and object code), accounts, servers or networks connected to or accessible through the Platform or any other user's enjoyment of the Platform or Services;
- infringe a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, whether by uploading Data and Content or otherwise;
- upload, post, disseminate or otherwise transmit on or through the Platform or Services (including when submitting any Data and Content to the Platform in any format) any:
- unlawful, defamatory, harassing, libellous, tortious, abusive, offensive, threatening, or obscene material of any kind;
- Data and Content in respect of a Patient without the authorization of such Patient, to the extent any such authorization is required by Applicable Laws or Standards, Policies and Codes;
- any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; 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; or
- permit, encourage or take any action to facilitate any person to do any of the foregoing.
- You acknowledge that the accessibility and functionality of the Platform and Services 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 and Content that You may store, upload, post, disseminate, or otherwise transmit, on or through the Platform.
- Oculo also reserves the right to audit or monitor Your Account for any legal purpose, including inspecting records of Your use of the Platform and the Services, at any time and without notice to You. However, You acknowledge that Oculo has no obligation to monitor, or otherwise audit Your or any other person’s access or use of the Platform or the Services, or to edit or screen any Data and Content uploaded by You or any other person.
- Your Data and Content:
- is accurate, relevant, up to date, complete, and comprises legitimate and original content; and
- neither Your Data and Content nor your posting, uploading, publication, submission or transmission of Your Data and Content or Our use of Your Data and Content (or any portion thereof):
- infringes or will infringe, misappropriate or violate 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;
- results in the violation of any Applicable Laws or Standards, Policies and Codes; and
- no proceedings have been instituted by any third party against You in connection with any of Your Data and Content for the infringement of that party’s intellectual property rights or rights of publicity or privacy of any kind.
You agree to maintain in confidence all Confidential Information of Oculo and its associates and not to use or disclose the Confidential Information without the express written consent of Oculo. You will protect Oculo’s Confidential Information with the same standard of care that You use to protect Your own confidential information, but in no event less than a reasonable degree of care. As used herein, “Confidential Information” means all information (including the existence and subject matter of this Agreement) of a confidential nature in any form or medium that is not publicly available, including without limitation business and technical information relating to Oculo, its associates, or its customers which is incorporated into or made available through the Platform and Services or any software or other technology contained therein.7.PROPRIETARY RIGHTS, LICENCES AND MORAL RIGHTS 7.1.INTELLECTUAL PROPERTY RIGHTS
As between You and Oculo, You acknowledge and agree that all right, title and interest in and to 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) are owned exclusively by Oculo. You shall not in any way, directly or indirectly, challenge or impair the validity or exclusivity of Oculo’s ownership of such Intellectual Property Rights or represent that You have any right, title or interest in or to such Intellectual Property Rights (other than rights to use such Intellectual Property Rights as expressly conferred under this Agreement). All rights not expressly granted to You in this Agreement are reserved by Oculo.7.2.LICENCES TO DATA AND CONTENT
- By accessing and using the Platform and the Services to provide information to other Health Care Providers, including creating, uploading, posting, sending, receiving, storing, or otherwise making available any Data and Content on or through the Platform or Services, You grant to Us a non-exclusive, royalty-free, worldwide, sub-licensable and transferable licence to exercise all Intellectual Property Rights in and to Your Data and Content for the purpose of providing the Services and making the Platform available to You and other Health Care Providers including providing 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 (Permitted Purposes). These rights include rights to access, use, store, copy, modify and distribute to registered Health Care Providers and otherwise share Data and Content to provide the Platform and the Services as authorized and directed by You. By uploading Your Data and Content in connection with a Patient, You acknowledge that You are authorising and directing us to share Your Data and Content for the Permitted Purposes and Your Data and Content will be viewed, retained, stored, collected, sub-licensed, used, displayed and disclosed to other Health Care Providers viewing or accessing the Platform or the Services for the Permitted Purposes.
Upon request by Oculo, You agree to procure from any author, free from duress or coercion, an absolute and irrevocable waiver of that author’s moral rights in any Data and Content to the extent necessary to allow Oculo, its licensors, successors and assigns, to incorporate that Data and Content into any De-identified Data in a manner that would otherwise infringe any non-assignable personal moral rights that may subsist in the Data and Content.8.DE-IDENTIFIED DATA
- We may generate sets of de-identified, anonymized and/or aggregated data, as such terms are defined under Applicable Law (including but not limited to “De-identified” as defined under HIPAA), from the Data and Content that You provide to us (De-identified Data).
- You acknowledge that Oculo owns all right, title and interest in and to any Intellectual Property Rights that may subsist in any De-identified Data, and you acknowledge that We may use such De-identified Data for marketing, research and other commercial purposes including:
- aggregating the De-identified Data across all customers for the purpose of analysing the De-identified Data in respect of territories, demographics and conditions, and benchmarking; and
- where permitted by Applicable Laws, artificial intelligence and machine learning purposes.
- To the extent such Intellectual Property Rights are not automatically owned by Oculo, You hereby assign all right, title and interest in such Intellectual Property Rights to Oculo and shall upon request do all things necessary to give effect to such assignment (including execution of appropriate documentation at Oculo’s cost).
- 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.
This Agreement shall commence on the date Your account is created and continue until terminated in accordance with its terms (Term).11.2.TERMINATION
- If You wish to cease using the Platform and the Services You may do so for any reason at any time during the Term. You must follow the appropriate administrative procedures at the relevant Location to enable You to do so (e.g. by contacting Your manager) or, if You are a sole practitioner, by notice in writing to Oculo addressed to email@example.com and We will implement Your request 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.
- You cease to be employed or otherwise provide services at Your Location and Your Account is linked to that Location (if applicable);
- the Subscription Agreement between Oculo and the ophthalmic or optometric practice:
- where you are employed or provide services; or
- which has provided Data and Content to You to facilitate a referral for the clinical care of a Patient,is terminated.
- We will confirm such termination by e-mail to the e-mail address recorded in connection with Your Account.
- If Your Account is terminated:
- You must promptly discontinue all use of the Platform and Services and Your account credentials; and
- We may recover any amounts owing to Us (without limiting any other rights or remedies we may have in the event of Your breach).
- Subject to Applicable Laws, Oculo reserves the right, in its sole discretion, to delete Your Data and Content unless a request has been received from:
- You, if you are a Health Care Provider who has received Data and Content to facilitate a referral for the clinical care of a Patient; or
- if you are an employee of, or service provider to, a Health Care Provider who has entered into a Subscription Agreement with Oculo, that Health Care Provider,
within a thirty (30) day period after termination, and all outstanding amounts owing to Oculo have been paid. The rights conferred on Oculo under this section do not apply to any Data and Content comprised of Protected Health Information.
- Sections 4.4 (Platform Use and Account Maintenance), 6 (Confidentiality), 7 (Proprietary Rights, Licences and Moral Rights), 11.3 (Effects of Termination), 12 (Disclaimer, Limitation of Liability and Indemnity) and 14 (General Provisions) will survive expiration or termination of this Agreement for any reason.
DATA AND CONTENT AVAILABLE ON THE PLATFORM OR THROUGH THE SERVICES IS PROVIDED BY HEALTH CARE PROVIDERS FOR USE BY HEALTH CARE PROVIDERS. OCULO DOES NOT GUARANTEE ITS ACCURACY AND ASSUMES NO LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, CURRENCY OR COMPLETENESS OF ANY SUCH DATA AND CONTENT. YOU MUST MAKE YOUR OWN INDEPENDENT ASSESSMENT OF THE CURRENCY, RELEVANCE AND ACCURACY OF ANY DATA AND CONTENT RELATING TO A PATIENT BEFORE ACCESSING OR USING THAT DATA AND CONTENT, MAKING ANY AUTHORIZED REFERRALS OR SUGGESTING A DIAGNOSIS OR RECOMMENDING OR INSTITUTING A COURSE OF TREATMENT FOR THAT PATIENT.12.2.General Disclaimer
- YOUR USE OF THE PLATFORM, SERVICES AND DATA AND CONTENT IS AT YOUR SOLE RISK AND WE RELY ON YOU AND YOUR PROFESSIONAL SKILL AND JUDGEMENT IN YOUR ACCESS TO AND USE OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU EXPRESSLY AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, OCULO EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO YOUR USE OF THE PLATFORM, SERVICES OR DATA AND CONTENT. 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, SERVICES OR DATA AND CONTENT (INCLUDING ANY ADVICE, OPINION, STATEMENT, OTHER CONTENT, PRODUCTS OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE PLATFORM OR SERVICES);
- THAT YOUR USE OF THE PLATFORM, SERVICES OR DATA AND CONTENT WILL BE SECURE, TIMELY, AVAILABLE OR UNINTERRUPTED OR THAT ERRORS IN THE PLATFORM OR THE SERVICES WILL BE CORRECTED;
- THAT THE PLATFORM, SERVICES OR DATA AND CONTENT WILL BE OF MERCHANTABLE QUALITY, FIT FOR A PARTICULAR PURPOSE OR MEET YOUR REQUIREMENTS;
- THAT ANY ACCESS TO, OR USE OF, THE PLATFORM, SERVICES, OR DATA AND CONTENT 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, BUG FREE OR ERROR FREE.
NEITHER OCULO, ITS ASSOCIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL BE 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, SERVICES OR DATA AND CONTENT;
- TECHNICAL MALFUNCTIONS OF THE UNDERLYING SOFTWARE, EQUIPMENT, SERVICES OR INFRASTRUCTURE, OR 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; OR
- COMBINATION OF THE PLATFORM, SERVICES OR DATA AND CONTENT WITH ANY GOODS, SERVICES OR OTHER ITEMS PROVIDED BY YOU OR ANY THIRD PARTY, INCLUDING INTEROPERABILITY ISSUES; OR
- DATA, CONTENT, INFORMATION, PRODUCTS OR SERVICES OFFERED BY ANY THIRD PARTY (INCLUDING DATA AND CONTENT SHARED BY ANY OTHER USER) THROUGH THE PLATFORM AND SERVICES.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, OCULO AND ITS ASSOCIATES EXCLUDE ALL LIABILITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY TYPE OR KIND ARISING FROM, OUT OF OR IN CONNECTION WITH THIS AGREEMENT (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), WHETHER FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT OCULO OR ANY OF ITS ASSOCIATES HAVE BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- IN NO EVENT WILL THE AGGREGATE LIABILITY OF OCULO AND ITS ASSOCIATES TO YOU IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO OCULO UNDER THIS AGREEMENT DURING THE PERIOD OF TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.14.5.Notices
A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
- in writing, in English and signed by a person duly authorized by the sender; and
- hand delivered or sent by prepaid post or email to the recipient’s address for Notices provided by the relevant party during the account signup process, as varied by any Notice given by the recipient to the sender.
Account means Your Account on the Platform which enables You to access the Platform and Services and the Data and Content held on the Platform or made available through the Services.
Applicable Laws means all applicable state or federal laws, regulations and rules which are applicable to You or Your Location, including those pertaining to privacy and the collection, use, storage, disclosure and disposal of health information.
Business Days means a day on which banks are open for business, excluding Saturdays, Sundays and public holidays in Victoria, Australia.
Data and Content means:
- clinical notes and images, health care records, referral and medical appointment details and related Patient data and information; and
- all other user generated data and content including, without limitation, 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 to Patients (whether as an employee, contractor, owner or otherwise).
“Oculo”, “We”, “Our” or “Us” means CT Operations International USA Inc. of 1209 N Orange St, Wilmington, DE 19801, United States.
Patient means any individual who has sought ophthalmic or optometric health care treatment, or is attending Your Location to obtain ophthalmic or optometric health care services from a Health Care Provider.
Personally Identifiable Information has the meaning given to that term, or any equivalent concept, in under Applicable Laws.
Protected Health Information means protected health information as defined under the Health Insurance Portability and Accountability Act of 1996, and the Health Information Technology for Economic and Clinical Health Act, and the final regulations to such Acts that the U.S. Department of Health and Human Services has promulgated and set forth in 45 CFR Parts 160 and 164.
Term has the meaning given to it in section 11.