These terms and conditions apply to you and your organisation’s (you or your) use of the My Occ Health Record Platform as provided My Occ Health Record Pty Ltd ACN 627 619 701 (we, us or our). This is a legal document which contains the terms governing our contractual relationship with you. By accepting an Order or contracting with us, you agree to be bound by these terms and conditions and warrant that you are authorised to bind the organisation you represent to these terms.
1. YOUR USE OF THE MY OCC HEALTH RECORD PLATFORM
1.1 Grant of rights
(a) Subject to payment of all Subscription Fees, we grant you and your Affiliates a non-exclusive and non-transferable licence for the Subscription Term to access and use the My Occ Health Record Platform, My Occ Health Record Content and associated Documentation (and to allow your Users to access and use the My Occ Health Record Platform, My Occ Health Record and associated Documentation) in accordance with these terms and solely for your and your Affiliates’ internal business purposes.
(b) You agree that your purchase of a subscription to the My Occ Health Record Platform is neither contingent upon the delivery of any other services by our Affiliates or us, nor dependent upon any oral or written public comments made by us with respect to future functionality or features of the My Occ Health Record Platform.
1.2 Usage restrictions
In relation to the My Occ Health Record Platform, you will not:
(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works;
(b) transmit any content or data that is unlawful or infringes any intellectual property rights; or
(c) circumvent or endanger its operation or security.
1.3 Modifications and updates
We may continually update the features and functionality of the My Occ Health Record Platform to reflect developments in technology, changes in our processes, necessary changes required by Applicable Laws or improvements to protect the security and functionality of the My Occ Health Record Platform. In the event we change the My Occ Health Record Platform, in whole or part, which results in a material decrease in features or functionality we will provide you with notice and you will have the opportunity to cease using the My Occ Health Record Platform in accordance with these terms.
1.4 Monitoring usage
We may monitor your use of the My Occ Health Record Platform to identify or resolve any technical problems or respond to complaints, monitor bandwidth usage or to determine if you are complying with the licence granted under these terms. We may remove, or request you to remove, any Subscriber Content uploaded to the My Occ Health Record Platform in breach of these terms.
1.5 Technology and security
You are responsible for:
(a) obtaining all computer hardware, software, network, internet, mobile telecommunications and any other necessary equipment required to access and use the My Occ Health Record Platform, including any changes, updates or enhancements we may make to the My Occ Health Record Platform from time to time. You are also responsible for ensuring your systems can access the My Occ Health Record Platform;
(b) any activities undertaken by you, your Affiliates and your Users where user account details are used and you will keep your, your Affiliates’ and your Users’ user account details and passwords secure. You will notify us promptly of any unauthorised use of any password or account. Your Users will not impersonate another user or provide false identity information to gain access to the My Occ Health Record Platform;
(c) the operability of products or services that are provided by third parties which you may use or interact with the My Occ Health Record Platform. The services provided by a third party are governed by terms of the applicable agreement between you and the third party and we assume no responsibility and disclaim any liability or obligations in relation to the products or services provided by a third party to you; and
(d) any changes, modifications, variations or customisations made by you when using or interacting with the My Occ Health Record Platform that deviate from the Standard My Occ Health Record Platform. We assume no responsibility and disclaim any liability in relation to the changes, modification, variations and customisations made by you in the Standard My Occ Health Record Platform.
2. SUBSCRIPTION FEES
You will pay all Subscription Fees specified in your Order in accordance with the terms of your agreement.
3. INTELLECTUAL PROPERTY RIGHTS
(a) We and our licensors will retain all rights, title and interest in all Intellectual Property Rights in the My Occ Health Record Platform, the Documentation, our Confidential Information and the My Occ Health Record Content (including all modifications, enhancements and developments to the My Occ Health Record Platform, the Documentation, our Confidential Information and the My Occ Health Record Content).
(b) You retain ownership of all Intellectual Property Rights in the Subscriber Content and you grant to us a non-exclusive, royalty-free and non-transferable licence to use the Subscriber Content for the purpose of performing our obligations and exercising our rights under these terms.
(c) You acknowledge the data (including aggregate data, non-personal information and anonymised data) generated by us arising out of your use of the My Occ Health Record Platform and any suggestions, enhancement requests, recommendations or other feedback provided by you to us in relation to the My Occ Health Record Platform may be used by us for the purpose of further improving our technology, performing industry analysis or analytics, or otherwise to conduct our business.
4. MUTUAL INDEMNIFICATION OBLIGATIONS
(a) We will defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable legal fees) directly arising out of, or in connection with, a third party claim brought against you in relation to the provision of the Standard My Occ alleged infringement of that third party’s Intellectual Property Rights arising out of, or in connection with, your use of the Standard My Occ Health Record Platform or standard My Occ Health Record Content.
(b) You will have no claim under the indemnity described in clause 4(a) to the extent the infringement arises from:
(i) your Subscriber Content;
(ii) your use of the My Occ Health Record Platform or My Occ Health Record Content other than in accordance with these terms;
(iii) our compliance with your specifications or instructions; and/or
(iv) changes, modifications, variations or customisations made by you when using or interacting with the Standard My Occ Health Record Platform.
(c) If we believe, or it is determined, that the My Occ Health Record Platform or My Occ Health Record Content (Infringing Material) may have violated a third party’s Intellectual Property Rights, we may choose to either modify the Infringing Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, we may end the license for, and require return of, the applicable Infringing Material and refund any Fees you may have paid for it. If such return materially affects our ability to meet our obligations under your Order, then we may, at our option and on 30 days prior written notice, terminate your Order.
(d) You must defend, indemnify, and hold us and our Affiliates harmless against any loss, damage, expense, liability or costs (including reasonable legal fees) directly arising out of, or in connection with, any third party claim brought against us or our Affiliates in connection with your Subscriber Content, your use of the My Occ Health Record Platform in violation of these terms and any changes, modifications, variations or customisations made by you when using or interacting with the Standard My Occ Health Record Platform.
5. INDEMNIFICATION PROCEDURE
(a) If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under clause 4, the Indemnified Party must:
(i) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity (Claim);
(ii) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the Claim, always provided that the Indemnifying Party obtains the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(iii) provide the Indemnifying Party with such reasonable assistance regarding the Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(b) not, without prior consultation with the Health Record Platform only, for actual or
(i) Indemnifying Party, make any admission relating to the Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Users whose access is necessary to enable it to exercise its rights or perform its obligations under these terms and who are under obligations of confidentiality substantially similar to this clause 6. You will not disclose these terms or the pricing to any third party.
(b) The obligations of confidentiality under clause 6(a) do not apply to any Confidential Information that:
(i) is disclosed to the receiving party by a third party entitled to do so, whether before or after the Commencement Date;
(ii) was already rightfully in the receiving party’s possession when it was given to the receiving party and was not otherwise acquired from the disclosing party directly or indirectly;
(iii) is generally available to the public as at the Commencement Date or subsequently becomes so available other than by reason of a breach of these terms; or
(iv) any disclosure of Confidential Information by the receiving party that is necessary to comply with any court order, law or the applicable rules of any regulatory body.
7. PRIVACY AND DATA PROTECTION
(a) Each party will perform their respective obligations under these terms in accordance with their respective obligations under Privacy Laws, and to the extent that the GDPR applies to the provision of services and use of the Platform we are a processor only and you are responsible for meeting all controller obligations.
(b) We will not access your Subscriber Content, except:
(ii) where instructed or permitted by you;
(iii) in accordance with Applicable Laws; or
(iv) to protect or exercise our legal rights.
(c) You will obtain all necessary consents and authorities from persons whose Personal Information is collected, processed and held via the My Occ Health Record Platform.
(d) If you have purchased our ‘My Occ Health Record Daily Health Check’ service, your employees and individuals will be able to disclose certain health information to us which we will then disclose to you via the My Occ Health Record Platform.
You acknowledge that any information we disclose to you that was collected via the My Occ Health Record Daily Health Check service will constitute sensitive information under Privacy Laws and you must handle this information in accordance with all relevant Privacy Laws. In particular, you agree to only use this information for the purposes of maintaining a safe workplace and managing and preventing the transmission of COVID-19, unless you have obtained the express consent from the relevant individual to use the information for another purpose. You agree you (and not us) are responsible for any mandatory reporting obligations that may arise in connection with this information but that you must not otherwise disclose this information to third parties, except as required or authorised by law.
(e) Each party indemnifies the other for any third party claim for breach of Privacy Law.
(f) We warrant that we are ISO 27001 compliant and that we will use all reasonable steps to ensure the security of the My Occ Health Record Platform and Subscriber Content.
8. WARRANTIES AND ACKNOWLEDGEMENTS
(a) Subject to clause 8(b), we warrant the My Occ Health Record Platform will function substantially in accordance with the Documentation during the relevant Subscription Term. Any representation, warranty, condition or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law, and we disclaim all other warranties (whether express, implied or statutory) and conditions, including fitness for purpose, merchantability or non-infringement.
(b) We do not guarantee that the My Occ Health Record Platform will perform error free or uninterrupted or that we will correct all errors. We are not responsible for any issues related to the performance, operation or security of the My Occ Health Record Platform that arise from your Subscriber Content or third party content or services not provided by us or changes, modifications, variations or customisations made by you when using or interacting with the Standard My Occ Health Record Platform.
(c) You acknowledge that:
(i) nothing contained in the My Occ Health Record Content made available to you through the My Occ Health Record Platform is intended to be, and must not be taken to be, the practice of medical or counselling care, including injury prevention, and is intended only to be for informational purposes only and should not be construed as professional advice. Any reliance or use of any My Occ Health Record Content is solely at your own risk;
(ii) the My Occ Health Record Platform does not make final clinical or other decisions and is not a substitute for independent professional advice from a competent, licensed and trained professional in the applicable area to provide judgment and analysis; and
(iii) you are solely responsible for verifying the accuracy, integrity and quality of all Subscriber Content necessary for you to make any medical or counselling care diagnostic decisions, operational decisions and injury prevention strategic decisions.
(d) Nothing in these terms excludes, restricts or modifies any condition, warranty, right or remedy conferred by the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) or any other applicable law that cannot be excluded, restricted or modified by agreement.
(e) To the fullest extent permitted by law, our liability for a breach of a non-excludable condition or warranty is limited at our option (where permitted by the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) to:
(i) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
9. LIMITATION OF LIABILITY
(a) We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss, loss of profits, loss of sales or business, loss of production, loss of agreements or contracts, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, loss of reputation, loss of use or corruption of software, data or information (including Subscriber Content) arising under or in connection with these terms.
(b) Subject to clauses 4 and 9(a), to the extent permitted by Applicable Laws, our aggregate liability in respect of any claims arising out of or in connection with these terms, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed the total charges paid by you to us under your Order in the 12 months immediately preceding the claim that arose during the Subscription Term of your Order. This clause 9 does not apply to a third party claim arising from a breach of Privacy Laws.
We may, with or without notice to you and at our discretion, limit or suspend your right to access or use to the My Occ Health Record Platform should we believe you are not complying with your obligations under these terms.
11. TERM AND TERMINATION
11.1 Subscription Term
(a) Your Subscription Term is specified in your Order.
(b) Your subscription will automatically renew for a further Subscription Term under the same Terms and Conditions unless we receive written notice no less than 90 days prior to the end of your Subscription Term that you do not wish to continue with the subscription.
(a) A party may terminate these terms:
(i) on 30 days written notice of the other party’s material breach (including without limitation your failure to pay any fees due for the My Occ Health Record Platform subscription described in your Order) unless the breach is cured during that thirty day period;
(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors; or
(iii) as specified in your Order.
(b) Expiry or termination of these terms will not affect the operation of the provisions of these terms which by their nature survive termination or expiry of these terms (including clauses 3, 3, 4, 5, 6, 8, 12 and this clause 11.2(b)).
(a) These terms contains the entire understanding between the parties concerning the subject matter of these terms and supersedes all prior communications between the parties.
(b) We will not be in breach of these terms or liable to you for any loss incurred by you as a result of our failing or being prevented, hindered or delayed in the performance of our obligations under these terms where such prevention, hindrance or delay results from events, circumstances or causes beyond our control, including, without limitation, acts of God, strikes or other labour disturbances, war, whether declared or not, sabotage, or any other cause or causes, whether similar or dissimilar to those specified, which cannot reasonably be controlled by us.
(c) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(d) Neither party may assign or novate any rights or entitlements under these terms without the other party’s written consent.
(e) We may make reference to your name or logo on our websites (including websites dedicated to the My Occ Health Record Platform), press releases or other marketing materials.
(f) Any provision of these terms which is invalid in any jurisdiction must, in relation to that jurisdiction:
(i) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(ii) be severed from these terms in any other case,
without invalidating or affecting the remaining provisions of these terms or the validity of that provision in any other jurisdiction.
(g) These terms and any dispute or claim arising out of or in connection with it is governed by and must be construed in accordance with the laws in force in Victoria, Australia.
(h) The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia in respect of all matters arising out of or relating to these terms, its performance or subject matter.
(i) Each party is an independent contractor and, unless these terms expressly provides otherwise, has no authority to bind or commit the other party. Nothing in these terms may be construed as creating a relationship of employer and employee, partnership, principal and agent or trustee and beneficiary.
(j) Any notice given to a party under or in connection with these terms must be in writing and must be:
(i) delivered by hand or by pre-paid post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the email address specified in your Order.
(k) Any notice is deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt;
(ii) if sent by pre-paid post at the time recorded by the delivery service; or
(iii) if sent by email, at 9.00 am on the next business day after transmission.
13. DEFINITIONS AND INTERPRETATION
In these terms, the following terms have the meaning set out below.
Affiliate means a party’s related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)) and, in relation to us, also includes:
(a) Bodycare Injury Management Pty Ltd (ACN: 120 104 985);
(b) Bodycare Injury Management New Zealand Pty Ltd (NZBN: 9429040984810); and
(c) Bodycare Health & Wellbeing Pty Ltd (ACN: 624 842 351).
(d) Bodycare Work Pty Ltd (ACN: 634 054 256)
(e) Healthbook Pty Ltd (ACN: 630 277 860)
Applicable Laws means all laws, statutes, regulations or other statutory instrument or proclamation of any applicable jurisdiction in which any act or obligation, in connection with the terms and conditions of these terms, is or is to be carried out or regulated, whether of a legislative, equitable or common law nature, from time to time in force.
My Occ Health Record Content means any data, content, instructions, analysis or outputs produced by or derived from the My Occ Health Record Platform, other than Subscriber Content.
My Occ Health Record Platform means our proprietary “as-a-service” occupational health management and reporting software platform offered to subscribers via the internet, including all corrections, updates, modifications, releases, versions and enhancements to such software that may be generally released by us and as further described in the Documentation including any applicable support services, but does not include its source code.
Standard My Occ Health Record Platform means the My Occ Health Record Platform in its standard, base settings at the time that the My Occ Health Record Platform is initially provided by us to you.
Claim has the meaning given to that term in clause 55(a)(i).
Commencement Date means the commencement date of your subscription as set out your Order or, if no commencement date is set out in your Order, the date you first access the My Occ Health Record Platform.
Confidential Information means:
(a) information that at the time of disclosure by a disclosing party is identified to the receiving party as being confidential or which the receiving party knows, or ought reasonably to be expected to know, is confidential to the disclosing party or any Affiliate of the disclosing party; and
(b) all other information belonging or relating to a disclosing party, or any Affiliate of that disclosing party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these terms.
Documentation means, in relation to the My Occ Health Record Platform, the documentation made available by us to you (as they may be updated by us from time to time), including current guides and manuals we publish or make generally available.
Indemnified Party has the meaning given to that term in clause 55(a).
Indemnifying Party has the meaning given to that term in clause 55(a).
Infringing Materials has the meaning given to that term in clause 44(d).
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including rights of any kind in:
(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
(b) literary works, dramatic works, musical works, artistic works, cinematograph films, television broadcasts, sound broadcasts, published editions of works and any other subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the subject matter, subsist anywhere in the world;
(c) registered and unregistered trade marks and service marks, including goodwill in the business concerned in the relevant goods and services;
(d) trade, business or company names;
(e) internet domain names; and
(f) proprietary rights under the Circuit Layouts Act 1989 (Cth),
whether created or in existence before or after the date of these terms and includes any thing, whether tangible or intangible, which incorporates, embodies or is based on any of the things referred to in paragraphs (a) to (f) inclusive of this definition.
Order means the ordering document used for the provision of a subscription to the My Occ Health Record Platform agreed by you and us or our Affiliate (i.e. proposal, quote, response to RFP or other similar specification document).
Personal Information has the meaning given in the Privacy Act and includes “Sensitive Information” (as that term is defined in the Privacy Act).
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means any applicable law, statute, regulation, ordinance, code, standard or requirement of any government, governmental or semi-governmental body which relates to privacy, including without limitation the Privacy Act and the Australian Privacy Principles under the Privacy Act, and the Spam Act 2003 (Cth), as amended from time to time and the EU General Data Protection Regulation 2016/679 (“GDPR”) as relevant.
Subscriber Content means all content and information provided by you to us.
Subscription Fees means the fees payable for your subscription to, configuration of and ongoing use of the My Occ Health Record Platform as set out in your Order.
Subscription Term means the term set out in your Order.
User means a person who is authorised by you to use the My Occ Health Record Platform, for whom you have purchased a subscription and/or to whom you have supplied a user identification and password.
In these terms, unless the context requires otherwise:
(a) the headings are used for convenience only and do not affect the interpretation of these terms;
(b) the word “person” includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(c) wherever “include”, “for example” or any form of those words or similar expressions is used, it must be construed as if it were followed by “(without being limited to)”;
(d) a reference to time is to Melbourne, Victoria time unless otherwise specified;
(e) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
(f) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body; and
(g) if a period of time is specified and commences from a given day or the day of an act or event, it is to be calculated exclusive of that day.