PACSS PTY LTD ABN 45 628 474 199
PATIENT TERMS OF SERVICE
INTRODUCTION
The Company provides the “PACSS” online psychological preoperative screening assessment and support services subject to these Terms of Service.
Definitions
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australian Business Number.
(b) Agreement means the agreement formed between the Patient and the Company under, and on the terms of, these Terms of Service.
(c) Assessment means the online assessment to be completed by the Patient via the Platform.
(d) Assessment Content means any answers, responses, information or data that is provided by the Patient for an Assessment.
(e) Assessment Link means the website link sent via email that allows the Patient to complete the Assessment.
(f) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(g) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in New South Wales, Australia.
(h) Company means PACSS Pty Ltd ABN 45 628 474 199.
(i) Confidential Information means any written or verbal information that:
i Is deemed as confidential under this Agreement;
ii A party informs the other party that it considers it confidential and/or proprietary;
iii A party would reasonably consider to be confidential in the circumstances; and
iv Is personal information within the meaning of the Privacy Act and GDPR.but does not include information that a party can establish:
v Was in the public domain at the time it was given to that party;
vi Became part of the public domain, without that party’s involvement in any way, after being given to the party;
vii Was in that party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
viii Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(j) Consultation means a consultation between a Psychologist and the Patient, subject to the Consultation Fee and the Patient’s prior consent.
(k) Consultation Fee means the fee charged by the Company for a Consultation and payable by the Surgeon.
(l) Fee means a fee charged by the Company for its Services.
(m) GDPR means the EU General Data Protection Regulation 2016/679.
(n) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(o) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(p) Patient means any person referred by a Surgeon and sent an Assessment Link.
(q) Patient Data means any information, documents or other data that is uploaded into, or created using, the Platform by the Patient, or that otherwise forms part of the Patient’s Intellectual Property but excludes any background Intellectual Property that is owned by, or licensed to, the Company, and any derivative data (such as analytics).
(r) Platform means the digital system provided by the Company and accessible by the Patient to complete an Assessment.
(s) Privacy Act means the Privacy Act 1988 (Cth).
(t) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(u) Psychologist means a registered psychologist who assists with the provision of Services on behalf of the Company, and in particular prepares Reports.
(v) Report means a written report based on the Patient’s Assessment.
(w) Services means the suite of services provided by the Company, including (without limitation) the provision of Assessments, Reports and Consultations.
(x) Site means the website found at http://www.thepacss.com, or such other URL used by the Company from time-to-time.
(y) Surgeon means an individual or entity that separately engages the Company and refers the Patient.
(z) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(aa) Terms of Service means these terms and conditions that apply to the Patient, as updated from time-to-time, which can be found at the Site.
1 USING PACSS
1.1 To complete an Assessment, the Patient must receive and open an Assessment Link.
1.2 The Patient must ensure that all Patient Data, including personal information, is complete and accurate.
1.3 Once an Assessment is completed by the Patient, the relevant Assessment Link will automatically expire so that no additional Assessments can be completed using the same Assessment Link.
1.4 The Patient is responsible for ensuring that they have all necessary equipment and software to enable access to the Platform to complete an Assessment.
1.5 The Patient agrees that its use of the Platform and Services is subject to these Terms of Service.
1.6 The Company may restrict the access of any Patient that breaches these Terms of Service.
1.7 Patients under the age of 18 must not use the Services without their parent or legal guardian’s consent.
2 ASSESSMENTS
2.1 The Patient’s completion of the Assessment is voluntary and may be withdrawn at any time during the process.
2.2 The Patient must ensure that Assessment Content is completed accurately and truthfully, and the Assessment is personally completed by the Patient and not on their behalf or upon the instruction of any third party.
2.3 Subject to the parties agreeing otherwise, a completed Assessment will be securely stored on the Platform for a period of 12 months from the date of completion.
2.4 A completed Assessment will not be accessible by or shared with either the Patient or the Surgeon, or any third party. For clarity, the v Assessment is accessible only to the Company and Psychologists for the purposes of preparing a Report.
2.5 The Platform enables the Patient to create Patient Data, but by doing so the Patient shall not acquire an interest to any Intellectual Property owned by the Company, which may exist in the Platform.
2.6 The content of the Assessment, in particular the questions asked of the Patient, remain the Intellectual Property of the Company and the Patient must not copy, reproduce, vary, distribute or otherwise exploit the Assessment without the Company’s express prior written consent, or permit any third party to do so.
2.7 The Company may add, vary and/or remove elements of the Assessment at its complete discretion without prior notice.
2.8 To the extent permitted by law, under no circumstances will the Company be liable in any way for Assessment Content.
2.9 The Patient acknowledges and agrees that the Assessment Content may be used by the Company for research, developmental, statistical, analytical and/or archival purposes, subject to and in accordance with the Privacy Policy.
2.10 The Company may suspend accessibility to or remove Assessment Content via the Platform that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
3 REPORTS
3.1 The Patient consents to the Report being made accessible via the Platform to the Surgeon. The Company shall not disclose the Report to any other party unless the Patient provides express prior written consent otherwise.
3.2 The Company may also provide the Report or part thereof to the Patient upon written request, otherwise it is at the referring Surgeon’s complete discretion whether or not the Report is made available to the Patient.
3.3 A referring Surgeon may specifically request the Company to not disclose the Report to the Patient
3.4 The Patient acknowledges and agrees that:
(a) The Surgeon has an overarching duty of care to the Patient;
(b) Where the Surgeon is a professional practice comprising of a group of individuals, then the Report may be accessible by authorised members of the practice, and in such circumstances the Company is not responsible in any way for the maintenance of confidentiality by the Surgeon;
(c) The Report is provided to the Surgeon for their professional consideration as recommendations only and is not to be considered conclusive and/or binding advice that the Surgeon must follow;
(d) The Report is based on the Assessment Content only and does not take into account all other considerations relevant to the Patient’s decision regarding surgical treatment; and
(e) The Company shall have no liability to the Patient for any decision made in reliance on a Report.
4 CONSULTATIONS
4.1 The Company may provide a Consultation upon the written request of the Patient or their referring Surgeon.
4.2 A Consultation may be conducted in person, over the phone or using an online communication platform such as Skype or Zoom.
4.3 During a Consultation, the Patient agrees to conduct themselves and interact with the Psychologist in a respectful and professional manner, and in particular not in a rude, offensive and/or harassing manner.
5 Fees, payments & refunds
5.1 Fees
(a) There are no Fees payable by the Patient for use of the Platform.
(b) The Company reserves the right to introduce or change any Fees from time-to-time, and should any Fees be introduced for the Patient the following rules shall apply:
i No refunds on Fees will be offered other than as required by law;
ii All Fees will be quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds); and
iii GST will be applicable to any Fees charged by the Company to the Patient in Australia and, unless expressed otherwise, all Fees shall be deemed inclusive of GST; and
iv The Company will provide the Patient with a Tax Invoice for any payments.
6 General conditions
6.1 Licence
(a) By accepting these Terms of Service, the Patient is granted a limited, non-exclusive and revocable licence to access and use the Platform, in accordance with these Terms of Service.
(b) The Company may issue the licence to the Patient on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the Patient’s licence in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the Patient.
6.2 Modification of Terms
(a) The terms of these Terms of Service may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the Patient with written notice, and the Patient will be required to accept the modified terms in order to continue using the Platform and Services.
6.3 Improvements
(a) The Patient agrees and accepts that the Platform is:
i Hosted by the Company and shall onlor other connection to the servers operated by the Company and is not available ‘locally’ from the Patient’s systems; and
ii Managed and supported by the Company from the servers operated by the Company and that no ‘back-end’ access to the Platform is available to the Patient unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.
6.4 Support
(a) The Company provides support services for Patients, primarily via Consultations subject to request by the Surgeon and consent of the Patient.
(b) The Patient should notify the Company of any difficulties or problems they may experience with the Platform or completing an Assessment.
(c) The Company shall endeavour to respond to all support requests within 2 Business Days.
6.5 Use & Availability
(a) The Patient agrees that it shall only use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The Patient agrees that the Company shall provide uninterrupted access to the Platform to the best of its abilities, however:
i Access to the Platform may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to the Platform.
6.6 Privacy
(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR for data that it collects about the Patient.
(b) The Privacy Policy does not apply to how the Patient or the Surgeon handles personal information.
(c) The Platform may use cookies (a small electronic tracking code) to improve a Patient’s experience while browsing, while also sending browsing information back to the Company. The Patient may manage how it handles cookies in its own browser settings.
6.7 Intellectual Property
(a) Trade marks. The Company has moral and registered rights in its trade marks and the Patient shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Patient agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Patient warrants that it shall not infringe on any third- party rights through the use of the Platform.
(c) The Platform. The Patient agrees and accepts that the Platform is the Intellectual Property of the Company and the Patient further warrants that by using the Platform the Patient will not:
i Copy the Platform or the services that it provides for the Patient’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
(d) Content. All content (excluding Patient Data) submitted to the Company, whether via the Platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Patient with respect to the Services.
6.8 Third Party Dependencies
The Patient agrees and acknowledges that the Platform has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
6.9 Confidentiality
(a) The Company agrees to keep all Patient Data in the strictest confidence, and to the extent Patient Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
(b) Each party acknowledges and agrees that:
i the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii it owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv all Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
6.10 Liability & Indemnity
(a) The Patient agrees that it uses the Platform and Services at its own risk.
(b) The Patient acknowledges that the Company is not responsible for the conduct or activities of any Patient and that the Company is not liable for such under any circumstances.
(c) The Patient agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Patient’s use of or conduct in connection with the Platform or Services, including any breach by the Patient of these Terms of Service.
(d) The Company make no representations, warranties or guarantees, whether express or implied, as to the accuracy or usefulness of Assessments and/or Reports.
(e) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Patient’s access to, or use of, or inability to use the Platform or Services, in particular any decision made in reliance on Reports, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
(f) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
6.11 Suspension and Termination
(a) The Patient may terminate immediately by giving the Company written notice.
(b) The Company may terminate this Agreement and access to the Services if the Patient is in breach of these Terms and:
i That breach is not capable of remedy;
ii The breach is material, wilful, reckless or repetitious;
iii The breach compromises the Intellectual Property Rights of the Company; and/or
iv The breach can be remedied but is not remedied within 15 Business Days of being given notice of that breach by the Company.
(c) Termination is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination, in particular the Patient’s obligation to pay Fees.
6.12 Dispute Resolution
(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring formal proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.13 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The Patient can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service.
(c) The Company will send the Patient notices and other correspondence via the Platform, to the details that the Patient submits to the Company, or that the Patient notifies the Company of from time-to-time. It is the Patient’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The Patient may not assign or otherwise create an interest in these Terms of Service.
(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the Patient.
6.14 General
(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with any Special Conditions made under these Terms of Service, the terms of those Special Conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service.
(g) Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
(i) Interpretation. The following rules apply unless the context requires otherwise:
i Headings are only for convenience and do not affect interpretation.
ii The singular includes the plural and the opposite also applies.
iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
iv A reference to a clause refers to clauses in these Terms of Service.
v A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
END TERMS OF SERVICE