OceanCare

Healthcare Provider Employee and Healthcare Consumer Terms of Use

Version: 1.4
Last updated: 14 August 2019

Thank you for using OceanCare! These OceanCare Healthcare Provider Employee and Healthcare Consumer Terms of Use (“Terms of Use”) constitute a legally binding agreement between you, the person who registers, accesses and/or operates OceanCare if you are a Healthcare Provider Employee or Healthcare Consumer (“you”, “your”) and Ocean Informatics Pty Ltd (ABN 14 081 649 470) of Level 2, 495 Victoria Avenue Chatswood NSW 2067 Australia (“we”, “our”, “us”, “Ocean Health”). For the purposes of these Terms of Use, you are a Healthcare Provider Employee if you have a Healthcare Provider Employee User Account; and you are a Healthcare Consumer if you have a Healthcare Consumer User Account.  This Terms of Use should be read in conjunction with our Collection Notice at www.oceancare.com.au/terms/CollectionNotice.htm (“Collection Notice”), our Privacy Policy at www.oceancare.com.au/terms/PrivacyPolicy.htm (“Privacy Policy”) and our Acceptable Use Policy at  www.oceancare.com.au/terms/AcceptableUsePolicy.htm (“AUP”). This Terms of Use governs registration, access, operation and/or use of OceanCare by Healthcare Provider Employees and Healthcare Consumers only. In this Terms of Use, words starting with a capital letter having the meanings given to them in this document.

1. OceanCare

1.1 OceanCare is a hosted shared care record service comprising of our LinkedEHR Care Planning application (“LinkedEHR Web App”) and the Topbar LinkedEHR App (“Topbar LinkedEHR App”). The LinkedEHR Web App and the Topbar LinkedEHR App are collectively referred to in these Terms of Use as OceanCare.
1.2 There are a number of different types of user accounts available on OceanCare. These accounts are available to Healthcare Providers, their Healthcare Provider Employees and Healthcare Consumers. Holders of such accounts are collectively referred to as “Users”.
1.3 OceanCare can only be accessed and/or operated by Users.
1.4 OceanCare is designed to facilitate, among other things: communications between Healthcare Providers and Healthcare Consumers; sharing of various information such as Health Information between Healthcare Providers and Healthcare Consumers; and collection, use and disclosure of clinical information between Healthcare Providers, Healthcare Consumers and third party systems. However, OceanCare may be subject to downtime, disconnection, interruptions and errors from time to time, such as when a smartphone or computer loses internet or network connectivity, “freezes”, or runs out of battery, where OceanCare does not operate due to telecommunications failure or fault, when we or our hosting providers are conducting planned or unplanned maintenance, or when any related hosting service go offline or suffer downtime for any reason, or as a result of other matters beyond our control. If you use, access and/or operate OceanCare for any purpose, you agree that to the maximum extent possible by law: (a) you do so at your sole risk; (b) we shall bear no responsibility for any disconnection, downtime, unavailability, delays, defects, errors or failures of OceanCare; (c) there will be suitable arrangements to adequately address Healthcare Consumer health and safety and/or loss or damage of Healthcare Consumer Data independently of OceanCare at all times; (d) that we do not make any representations as to the accuracy, certainty, relevancy, reliability, or quality of Healthcare Consumer Data; and (e) you acknowledge that it is likely that OceanCare and its functions will fail or be unavailable or inoperable from time to time. Additionally, you agree that: (f) we are not responsible for the acts or omissions of any Healthcare Providers, Healthcare Provider Employees and/or Healthcare Consumers; (g) that Healthcare Providers, Healthcare Provider Employees and/or Healthcare Consumers are not our employees or representatives; and (h) that to the maximum extent possible by applicable law, we are not responsible for any performance or non-performance of any services that: (i) a Healthcare Provider may be engaged by a Healthcare Consumer to provide or procure; or (j) Healthcare Provider Employees may be employed or engaged to provide for or on behalf of a healthcare provider.
1.5 These Terms of Use set out the terms and conditions upon which Healthcare Provider Employees and Healthcare Consumers may register, access and operate OceanCare.
1.6 A Healthcare Consumer user account may include all or any of the following;
(a) Health Information and/or Personal Information about the Healthcare Consumer (“Healthcare Consumer Data”);
(b) any documents prepared by any third-party that are uploaded or entered into the Healthcare Consumer user account by any User (“Third Party Data”); and
(c) records of communication between the Healthcare Consumer and/or his or her Healthcare Providers and/or communications between the Healthcare Consumer’s Healthcare Providers about the Healthcare Consumer,
(collectively, a Healthcare Consumer Record).
1.7 By registering, using and/or accessing an account on OceanCare or by consenting to a Healthcare Provider’s or Healthcare Provider Employee’s registration of a Healthcare Provider Employee account or a Healthcare Consumer Record on OceanCare on your behalf if you are a Healthcare Provider Employee or Healthcare Consumer (respectively) (each a “User Account”), you: (a) acknowledge that you have read and understood these Terms of Use; (b) represent that you are 15 years of age or older and have the capacity to consent and enter into these Terms of Use as a legally binding agreement; (c) accept these Terms of Use and agree that you are legally bound by these Terms of Use; and (d) consent to our collection, use, disclosure, handling and processing of your Personal Information, Health Information and other sensitive information in accordance with our Collection Notice and Privacy Policy.
1.8 If you do not agree wholly and unconditionally to these Terms of Use; (a) you must not access and/or operate OceanCare; and (b) if you are a Healthcare Consumer and/or Healthcare Provider Employee, you must immediately instruct your Healthcare Provider to deactivate your User Account.
1.9 We may amend and/or replace these Terms of Use from time to time.
1.10 You must not, and you must not permit any person to use, access and/or operate OceanCare from any location outside Australia.
1.11 We will always upload the latest version of these Terms of Use to this webpage. You must check this webpage regularly to ensure that you are familiar with the latest version of these Terms of Use.

2. Healthcare Provider Employees and Healthcare Consumers

2.1 We reserve the right to accept or reject any application with respect to the registration of a User Account in our absolute discretion.
2.2 If you have a User Account:
(a) you must not provide your username, LinkedEHR Health Care ID and/or password to any other person;
(b) you agree and acknowledge that you shall be solely responsible for the confidentiality of your username, LinkedEHR Health Care ID and/or password and any use of your User Account (including unauthorised use by any persons);
(c) you must immediately notify us if you become aware of any unauthorised use of your User Account;
(d) you are solely responsible for your username, LinkedEHR Health Care ID and/or password and for maintaining the security thereof; and
(e) we are not responsible for any claims, damages or losses you may suffer by reason of any unauthorised use of your User Account by any third party.
2.3 You cannot access any part of, or use any functionality made available through, OceanCare unless you have a User Account.

3. How to register a Healthcare Consumer Record on OceanCare

3.1 Only persons with a Healthcare Provider Account or Healthcare Provider Employee Account can register, deactivate and modify Healthcare Consumer Records.
3.2 Healthcare Providers or Healthcare Provider Employees can register, deactivate and modify Healthcare Consumer Records via OceanCare, subject to any requirements specified in the Documentation.
3.3 If a Healthcare Provider Employee registers and/or modifies a Healthcare Consumer Record, the Healthcare Provider Employee:
(a) must ensure that, and will be deemed to have irrevocably warranted that, it entered truthful, accurate and up to date information only about the applicable Healthcare Consumer into OceanCare to the registration, modification and/or deactivation of a Healthcare Consumer Record;
(b) will be deemed to have irrevocably warranted that it has the authority and consent of the applicable Healthcare Consumer to register, modify and/or deactivate the Healthcare Consumer Record on OceanCare and that the applicable Healthcare Consumer has agreed to these Terms of Use and consented to our Collection Notice and Privacy Policy; and
(c) must ensure that it provided a valid email address for the applicable Healthcare Consumer in OceanCare.

4. We do not charge Healthcare Provider Employees or Healthcare Consumers any fees

4.1 Healthcare Provider Employees and Healthcare Consumers will not be charged any fees by us for their access to and/or use of OceanCare. However;
(a) a Healthcare Provider Employee‘s access to and/or use of OceanCare is subject to its Healthcare Provider’s payment of all applicable fees to us and its compliance with its obligations to us, along with any other applicable taxes, charges and costs payable under any issued invoice by us to a Healthcare Provider; and
(b) a Healthcare Consumer’s access to and/or use of OceanCare is subject to its compliance with its obligations to us as set out in these Terms of Use and the AUP and the Healthcare Consumer’s consent in accordance with our Collection Notice.

5. Intellectual Property Rights

5.1 We do not own any data entered into OceanCare about any Healthcare Consumer including any Health Information and/or other Personal Information (“Healthcare Consumer Data”). In addition, we do not own any documents prepared by any third-party that are uploaded or entered into OceanCare by any User (“Third Party Data”). As between you and us, we and/or our Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth)) and/or our licensors own all Intellectual Property Rights in OceanCare and in any updates, upgrades, new versions, maintenance releases and other modifications of OceanCare, and in any documentation that we publish about OceanCare (“Documentation”) other than Healthcare Consumer Data and Third Party Data. You must not represent that you own OceanCare or any part of it or any updates, upgrades, new versions, maintenance releases and other modifications therein, or in the Documentation. As between you and us, we own and have a right to license all content and data processed by OceanCare, excluding Healthcare Consumer Data and Third Party Data, but including all other information, text, graphics, audio or visual material in OceanCare (collectively, “OceanCare Data”).
5.2 Except as expressly stated herein, these Terms of Use do not grant you or any third party any rights to or in patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other Intellectual Property Rights or other rights or licences in respect of OceanCare or any part of it and/or the Documentation.
5.3 You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute our or our licensors’ ownership in or rights with respect to OceanCare or any part of it and/or the Documentation.
5.4 You may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our or our licensors’ Intellectual Property Rights in OceanCare or any part of it and/or any Documentation.
5.5 You hereby assign to us all and any Intellectual Property rights that you may have in all and any comments in connection with the LinkedEHR Web App or requests for new features therein that you may suggest or create (each, an Improvement Suggestion). Each Improvement Suggestion becomes our sole and exclusive property. This assignment is effective as soon as you create any Improvement Suggestion or disclose an Improvement Suggestion to us including where applicable under section 197 of the Copyright Act 1968 (Cth) and in equity. You further authorise us (and any third parties authorised by us) to infringe any Moral Rights that you have in any Improvement Suggestions. You must execute any documentation reasonably required by us to give effect to the assignment to us of all Intellectual Property Rights in any Improvement Suggestions and moral rights consents from you in respect of Improvement Suggestions in our favour.
5.6 For the avoidance of doubt, we are not obligated to provide any Source Code to you with respect to OceanCare or any part of it or otherwise.

 

6. Limited right to access and use OceanCare

6.1 If you are a Healthcare Provider Employee, you may only use or access OceanCare while your Healthcare Provider has a valid licence and right for you to do so. For the purposes of these Terms of Use, a Healthcare Provider is any person with a Healthcare Provider User Account on OceanCare.
6.2 If you are a Healthcare Consumer, we grant you a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable right to access OceanCare for the purposes specified on our website at oceancare.com.au.
6.3 You may not make any use of OceanCare except as expressly permitted by this clause ‎6 and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our Intellectual Property Rights in OceanCare or any part of it. Without limiting the foregoing provisions of this paragraph, you must not, under any circumstances, sell or resell access to OceanCare or any other part of OceanCare or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicense, copy or duplicate OceanCare or any part of OceanCare or any content you obtain via OceanCare. In addition, you must not, nor may you permit any person to:
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, creative derivative works from or enhance OceanCare and/or any content in OceanCare or any other part of OceanCare (except with respect to your Healthcare Consumer Data if you are a Healthcare Consumer and/or any Third Party Data, as expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights or those of our licensors;
(c) infringe any patent that we may have, or any of our other Intellectual Property Rights;
(d) use OceanCare or any other part of OceanCare for the purposes of building or contributing to a competing product or service, or in any way that infringes our rights or the rights of any third party; or
(e) take any steps to circumvent any technological protection measure or security measures in OceanCare or any other part of OceanCare.
6.4 You must not use OceanCare in any way that is in breach of these Terms of Use or any statute, regulation, law or legal right of any person.

7. Our right to terminate your access to OceanCare

7.1 Any rights and licenses granted to you under clause ‎6 are conditional upon your compliance with (and without limitation may be terminated by us if you fail to comply with) these Terms of Use and/or any applicable laws and regulations governing your use of OceanCare.
7.2 If you are a Healthcare Consumer, we may terminate any licences granted to you under these Terms of Use and/or your access to OceanCare at any time without notice, if you fail to comply with any provision of these Terms of Use or if we choose to discontinue providing OceanCare, or if we deem that it is reasonably necessary to do so to protect our legitimate interests, subject to any non-excludable obligations we may have under applicable law.
7.3 If you are a Healthcare Provider Employee, your right to access OceanCare will terminate if your Healthcare Provider’s right and/or licence to access OceanCare is terminated.
7.4 Subject to any non-excludable obligations we may have under applicable law, upon termination of your access to OceanCare:
(a) we may deactivate and/or restrict certain functionality, limit or prevent your use of and/or access to OceanCare via whatever technical means we choose to employ;
(b) we may delete your Healthcare Consumer Data and any Third Party Data, unless we are required by applicable law to retain it; and
(c) you must cease to use OceanCare, without prejudice to any other of your or our rights or remedies accrued prior to termination.
7.5 If you are a Healthcare Provider Employee and your Healthcare Provider’s access and/or subscription to OceanCare is suspended or terminated under these Terms of Use for any reason, your access to OceanCare will also be suspended or terminated (as determined by us).

 

8. Accessing and availability of OceanCare

8.1 The availability of OceanCare will be subject, in addition to any other provisions set out in these Terms of Use, to any technical and non-technical limitations or restrictions set out at oceancare.com.au/terms/technicalrestrictions.htm. You agree and acknowledge that the accessibility and use of OceanCare, is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which OceanCare operates, interfaces with or connects to, and that we are not responsible for any non-performance of OceanCare associated with any of those matters.
8.2 We agree to use our best endeavours to ensure that OceanCare is available at least 90% of the time (measured each calendar month). If you use OceanCare you must not expect that it will be available more than that.

 

9. Healthcare Consumer Data and Third Party Data

9.1 To the extent possible by law, we are not liable in relation to any data displayed on OceanCare or any other part of OceanCare that is entered into or uploaded into OceanCare by you or any other person.
9.2 Any person who enters or uploads Healthcare Consumer Data, OceanCare Data and/or Third Party Data (collectively, Data) into OceanCare (either directly or by obtaining it from third party databases) is responsible for the legality of the Data and any claims arising in respect of the Data.
9.3 We do not accept responsibility for the conduct of any User. If you believe that a Healthcare Provider Employee or Healthcare Consumer has breached these Terms of Use, you must promptly notify us in writing.
9.4 Where you enter or upload any Healthcare Consumer Data and/or Third Party Data into OceanCare (either directly or by obtaining it from third party databases), you warrant, agree and represent that:
(a) you are fully entitled and authorised to upload, input, transfer and disclose the Data to us;
(b) you have obtained the relevant explicit, freely given, intelligible consent from the relevant data subjects to upload or enter such Data into OceanCare;
(c) the Data and our collection, use, storage and/or disclosure of that content in the course of operating our business will not breach any applicable law or any right of any person; and
(d) the upload, input, transfer and disclosure of the Data via OceanCare does not breach any applicable laws, regulations, codes or rules, such as the My Health Records Act 2012 and the My Health Records Rule 2016.
9.5 You agree that as between you and us, you are solely responsible for the accuracy, completeness, legality and quality of all the Data that you upload into, or enter into, OceanCare, and for obtaining all and any permissions, licenses, rights and authorisations necessary for us and our third party contractors to collect, use and disclose the Data to the extent we need to do so in order to operate OceanCare.
9.6 We make no representation in relation to the availability, quality, suitability and appropriateness of any goods and services supplied, or failed to be supplied, by any Healthcare Provider or Healthcare Provider Employee. In addition, we make no representation in relation to the availability, quality, suitability and appropriateness of Healthcare Consumer Data and/or Third Party Data. We are not a party to any transaction for the supply of goods or services advertised by, or agreed to be provided by, any Healthcare Provider and/or Healthcare Provider Employee of OceanCare. Before entering into any transaction with any Healthcare Provider, you should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate consents, advice and take all appropriate precautions.
9.7 The processing of any Data (including but not limited to clinical opinions and/or advise) on OceanCare does not constitute a recommendation, referral, endorsement or any advice from us or any of our officers, employees or agents in respect of the Data. You agree and accept to use OceanCare at your sole risk and that, to the extent possible by law, other than liability which by law cannot be excluded, we shall not have any liability to you in respect of any Data.

 

10 Acceptable Use

10.1 You must comply with our Acceptable Use Policy at oceancare.com.au/terms/AcceptableUsePolicy.htm.

11 Limitation of liability

11.1 You agree and acknowledge that you are solely responsible for and you indemnify us in respect of any loss and damage we may incur in connection with any claims and/or complaints made by any person where the claim is caused directly or indirectly by:
(a) your use of OceanCare in breach of these Terms of Use;
(b) your breach of any applicable law or regulation; and
(c) your goods and/or services.
11.2 Except in respect of any non-excludable guarantees implied by Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the “Australian Consumer Law”), we do not represent that the information and content displayed on OceanCare is accurate, correct, up-to-date or error free. The information and content on OceanCare is not professional advice. You agree that you will seek all appropriate financial, legal and other advice as applicable before relying on any information you obtain from OceanCare.
11.3 Except in respect of any non-excludable guarantees implied by the Australian Consumer Law or any other applicable law (“Non-Excludable Guarantees”), you and us are not liable to each other for any direct loss of profits or for any indirect, special or consequential loss or damage incurred by the other, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
11.4 Except in respect of any Non-Excludable Guarantees and except to the extent that we are unable to contract out of liability by applicable law, we will not have any liability to you for any loss, damage, personal injury or death, howsoever arising in relation to:
(a) your use or inability to use OceanCare; and/or
(b) the performance or non-performance of OceanCare.
11.5 The goods and services that we supply to any Healthcare Consumers or Healthcare Provider Employee under these Terms of Use may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of any implied guarantees that may be applicable to you will depend on whether you are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where you are a ‘consumer’ for the purposes of the Australian Consumer Law, we are required to provide and shall be deemed to have provided the following mandatory statement to you: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
11.6 If the goods or services supplied by us to you are supplied to you in your capacity as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable guarantees in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, we limit our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by us to you, in respect of each of the goods and services, at our option, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.7 Any warranty against defects provided by us to you in your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
11.8 Except with respect to any non-excludable guarantees which may be implied by the Australian Consumer Law, all conditions, warranties, guarantees, rights and remedies implied in these Terms of Use are excluded, to the extent possible by law.

 

12 Notice

12.1 Any notice issued to you from us or from us to you shall be in writing and sent by hand delivery, post or email. Where sent from us to you, we shall use your contact details for your User Account. You may contact us or send a notice to us using our contact details that are specified on our website at oceancare.com.au.
12.2 Any notice issued by hand shall be deemed delivered upon delivery.
12.3 Any notice issued by post shall be deemed delivered six (6) Business Days after posting if posted domestically, or ten (10) Business Days after posting if posted internationally. Email is not a valid method of serving notices under these Terms of use.
12.4 We may send you email or other electronic messages concerning your account and OceanCare from time to time.

 13 General

13.1 OceanCare is only available to persons over the age of fifteen (15) years of age and who are able to enter into legally binding contracts.
13.2 All rights not expressly granted to us in these Terms of Use are expressly reserved by us.
13.3 A party shall not assign or novate its rights or obligations under these Terms of Use without the other party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing provisions of this clause ‎3, we may assign or novate our rights or obligations under these Terms of Use at any time in connection with a restructure or sale of all or part of our business.
13.4 These Terms of Use, the Collection Notice and Acceptable Use Policy constitutes the complete and exclusive statement of the agreement between you and us with respect to OceanCare, superseding all proposals or prior agreements, oral or written, and all other communications between you and us relating to OceanCare.
13.5 No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
13.6 If any provision of these Terms of Use or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of these Terms of Use and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
13.7 These Terms of Use shall be governed by the laws of New South Wales, Australia. You and us submit to the non-exclusive jurisdiction of the courts located in New South Wales and any courts of appeal therefrom, with respect to any dispute that may arise in relation to OceanCare.

14 Interpretation

14.1 In these Terms of Use:
(a) Headings and underlinings are for convenience only and do not affect the construction of these Terms of Use.
(b) A provision of these Terms of Use will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(c) Currency refers to Australian dollars unless expressly specified to the contrary.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of these Terms of Use.
(f) A reference to time is to time in New South Wales.
(g) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(h) The words “includes”, “including” and similar expressions are not words of limitation and shall be interpreted as if immediately followed by the words “but not limited to” in each case.