Terms of Use

Updated: November 2018


These terms and conditions (Terms of Use) apply to your use of the website (www.keepsight.org.au), including any sub-domains (Website) including all applications, tools, information, content, materials, data, products and services made available to you on the Website from time to time (Services). The Website is owned and operated by Diabetes Australia The Website is designed for access and use by people with diabetes, health care providers including optometrists, ophthalmologists, general practitioners, support providers and any and all other similar accredited health providers who access and use the Website and any of the Services ('Health care Provider' or 'You'). The Website seeks to enable improved digital communication between You, NDSS and 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, 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 Website and Services. Under these Term of Use, 'Diabetes Australia', 'We', 'Our' or 'Us' means Diabetes Australia (ABN 47 008 528 461) of Level 1, 101 Northbourne Avenue, Turner, ACT 2612.


By accessing or using the Website including submitting your registration information on the Website, 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 accepting the Terms of Use below as they contain important information regarding Your legal rights, remedies and obligations, and include various limitations and exclusions.


IF YOU DO NOT ACCEPT ANY OF THESE TERMS OF USE, YOU SHOULD NOT ACCEPT THE TERMS OF BELOW AND IMMEDIATELY STOP ACCESSING, BROWSING OR USING THE WEBSITE.


Diabetes Australia may from time to time revise any or all of these Terms of Use. It is Your responsibility to regularly check the Website 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 Website 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 Website.


Access and Registration

To access and use our Services, you will need to register and create a profile with us (Profile) complete the registration and log-in process on our Website. You must be a registered user to access and use our Website and Services. You acknowledge that Diabetes Australia 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 Profile information up-to-date at all times. You may not assign or otherwise transfer your Profile 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 at all times when using the Website 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: https://www.ndss.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 Website, subject to compliance with all Privacy Laws and to the extent practicably feasible.


Your Conduct

General Obligations

You must access and use the Website and Services in a diligent, responsible and professional manner, in good faith and for a proper purpose, and in accordance with all Applicable Laws, including Privacy Laws.


Specific Obligations

Patient Consent

You acknowledge and agree that Diabetes Australia may at its sole discretion enable You through your Profile, on or via the Website, 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 Website.


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 given or 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 registered and authorised Health care Providers using the Website 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 Website and the Services, You acknowledge and agree that:


  1. the Website is designed to capture, store and facilitate access to health records (including identifiers, such as Medicare numbers) by You and other Health Care Providers, and particularly to streamline the transfer of Patient information for the purpose of generating reminder notices;
  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 Website. 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 Website OR you have all rights, licenses, consents and releases that are necessary to grant to Diabetes Australia and registered users on the Website the rights in and to such Data and user content (including personal Information), as contemplated under these Terms of Use;
  3. the Website simply facilitates the sharing of information for the purposes of You and Health care Providers registered on the Website providing You or Patients with reminder notices and does not provide medical advice of any kind. Diabetes Australia may share your Data (including Personal Information of Patients) with other Health care Providers who access and use the Website 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 Profile) 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. the Patient may contact Diabetes Australia for those purposes by email addressed to [email protected];
  6. data and Content handled by Diabetes Australia on the Website will be stored by Diabetes Australia 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 Diabetes Australia for the above permitted purposes, You must not upload any such Data, content or other information to the Website.


Website Use and Profile Maintenance

You may only access and use the Website via Your unique Profile and credentials, including username and password. You must keep your Profile details and credentials safe, secure and secret, and must not share them with anyone else, and must prevent unauthorised use of the Website. You must comply with all policies of Diabetes Australia contained in, or referred to on, the Website or as otherwise communicated to You by or on behalf of Diabetes Australia from time to time. You must immediately notify Diabetes Australia 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 Profile. You are solely liable for any and all activities conducted through your Profile, whether by your authorised employee, contractors or other permitted user access to the Profile (including any content and data posted or uploaded on the Website). Diabetes Australia accepts no responsibility or liability for any activities conducted on or via your Profile.


Your access to and use of our Website 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 Profile or you (or your end users') access and use [when we authenticate you].


Where You use the Website or Content to message other service providers it is Your responsibility to ensure that electronic messages sent via the Website 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 Website 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 Profile, service or system without authorisation from Diabetes Australia, or create or use a false identity or Profile on the Website;
  2. attempt to obtain unauthorised access to any Data or any aspect of the Website 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 Diabetes Australia's name, reputation or goodwill;
  5. disrupt, modify or interfere with the security of, or otherwise abuse, the Website, or any Data, services, system resources, software (including source code and object code), Profiles, servers or networks connected to or accessible through the Website;
  6. disrupt or interfere with any other user's enjoyment of the Website; or
  7. upload, post, disseminate or otherwise transmit on or through the Website (including when submitting any content to the Website 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 reminder for the clinical care of that Patient and only to the extent authorised by the relevant Patient;
    • o any viruses or other harmful, disruptive or destructive subject matter; or
    • o 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 Profile (whether authorised or not).


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


Diabetes Australia also reserves the right to audit or monitor Your Profile, including inspecting records of Your use of the Website and the Services, at any time where Diabetes Australia reasonably believes You are, or are likely to be, involved in any inappropriate use of the Website 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. Diabetes Australia 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 Website. Notwithstanding, You acknowledge that Diabetes Australia has no obligation to monitor, or otherwise audit your access or use of the Website 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 Website (Your Content), You warrant that:


  1. You have all necessary rights to contribute Your Content to the Website and to allow any Your Content to be used by Diabetes Australia in accordance with these Terms of Use and for the purpose of providing the Services;
  2. Your Content:
    • o 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 Website, 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;
    • o 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 Website 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.

Ownership and Licences

Content Licences

So that We can provide Your Data and content to the Health care providers whom You include in the reminder for a Patient or communicate with respect to a Patient’s clinical care via the Website, 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 Website, 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 Diabetes Australia 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 Website and the Services, including creating, uploading, posting, sending, receiving, storing, or otherwise making available any Data, including user content on or through the Website, 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 Website 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 Website 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 Website for the Permitted Purposes and as set out in our Privacy Policy.


Other than in respect of Your Content, and where necessary, Diabetes Australia grants You a sub-licence to use data on the Website solely to the extent necessary for You to access and use the Website and the Services in accordance with and subject to these Terms of Use. Diabetes Australia 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 Website 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 Diabetes Australia 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 Diabetes Australia 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

Diabetes Australia owns and holds all rights, title and interest in any Intellectual Property Rights in the Website and the Services (including without limitation in the software, designs, arrangements, layouts, sequences, forms and graphics pertaining to the Website, all trademarks, product names, and company names and/or logos displayed on the Website, 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 Website 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 Website and Services, other than in the User Data. Nothing on the Website 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 Diabetes Australia.


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 Website 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 Website, or that any other person has engaged in any conduct on the Website 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: [email protected] 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 Website may contain links to third party websites and You acknowledge that Diabetes Australia does not control any third party website or any products or services offered by third parties through the Website. These links do not constitute an endorsement, sponsorship, affiliation, association or recommendation by Diabetes Australia 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 Diabetes Australia reasonably believes You are, or are likely to be, involved in any inappropriate use of the Website, including but not limited to phishing activity, We may suspend Your Profile at any time without notice to You.


Termination

Diabetes Australia may terminate these Terms of Use and Your Profile 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;; or (ii) You are, in Diabetes Australia's reasonable opinion, involved in any inappropriate use of the Website. If We exercise any such termination right, We will send an e-mail to the e-mail address recorded on Your Profile, and termination will be effective within 24 hours following the issue of that e-mail.


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

  1. 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 Website in respect of Your Profile. 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.
  2. If You wish to cease using the Website and the Services at any time You may do so for any reason at any time.

Disclaimers, Limitations of Liability and Indemnity

Medical Disclaimer

Data on the Website is provided for use by Health Care Providers. As Data is submitted by Health Care Providers (including You), Diabetes Australia 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, or suggesting a that a Patient be registered for a reminder.


General Disclaimer

The Website 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 Website, 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 Website and the Services, including providing and interpreting any Data;
  3. Except as otherwise expressly agreed in writing, Diabetes Australia expressly disclaims any implied or express representations or warranties of any kind relating to the use of the Website, the Services and Data of any kind;
  4. Without limiting the foregoing, Diabetes Australia 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 Website and the Services (including any advice, opinion, statement, other content, or any products or services distributed or made available by third parties through the Website or Services);
    • that confidentiality of information transmitted through the Website and Services will be maintained by users of the Website and the Services (including You);
    • that the Website or the Services will meet Your requirements in any way;
    • that any access to, or use of, the Website 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
    • Diabetes Australia 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 Website and the Services;
      • Data uploaded, transferred or shared on the Website or for any use of the Website and the Services by You or any Health Care Providers;
      • interruptions or disruptions in any way on the Website; 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 Website, Services, Data or otherwise from Diabetes Australia, creates any warranty not expressly made in these Terms of Use.

Limitation of liability

To the maximum extent permitted by applicable laws, Diabetes Australia 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 Website 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.

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 Diabetes Australia for any breach of a Non-excludable Provision will be limited, at Diabetes Australia'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, Diabetes Australia 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 Website and the Services and any Data, including arising in connection with any breach of these Terms of Use.


Force Majeure

Neither Diabetes Australia 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 New South Wales, 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.

Definitions

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


Profile means a diabetes patient’s OR a Health Care Provider's Profile on the Website which enables them to access the Website and the Data held on the Website.


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


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 a 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 Diabetes Australia 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.