Promedicus

Promedicus.net Terms of Use

AGREEMENT FOR USE OF PROMEDICUS.NET SECURE EMAIL SYSTEM BY NOMINATED RECIPIENT

BACKGROUND

Pro Medicus is the owner and operator of a secure electronic mail delivery system utilising the Internet known as the "Promedicus.net Secure Email System". The use of the System allows Diagnostic Service Providers to send Medical Reports (such as reports of radiology or pathology diagnostic results pertaining to a Patient) and other related information by secure email to a Referring Practitioner.

The System is comprised of three principal components:

(a) the Promedicus.net Secure Email Server Software;

(b) the Promedicus.net Server; and

The System is deployed by Diagnostic Service Providers registering with Pro Medicus as Registered Users and then nominating Referring Practitioners as their Nominated Recipients. A Nominated Recipient must accept the terms of this Agreement in order to be registered by Pro Medicus as a Registered User of the System.

IMPORTANT: THIS IS A LEGALLY BINDING CONTRACT BETWEEN PRO MEDICUS AND YOU

This Agreement contains all of the contractual terms on which Pro Medicus will provide the System to you and will govern the relationship between you and Pro Medicus.

In this Agreement, you are a Referring Practitioner who has been, or desires to be, nominated as a Nominated Recipient by one or more Diagnostic Service Providers who are already Registered Users of the System. References to "you" or "your" will be construed accordingly.

Definitions that appear in clause 11 at the end of this Agreement will apply unless the context indicates a contrary intention.

AGREEMENT

1. ACCEPTANCE OF THIS AGREEMENT

1.1 Your use of the System is conditional upon you accepting the terms of this Agreement as set out below.

1.2 By installing, downloading or using the Client Software on your computer system, you agree to be bound by the terms of this Agreement. If you do not wish to accept this Agreement, you must not install, download or use the Client Software.

2. REGISTERED USERS

2.1 Authority to Use System

Only Registered Users are entitled, and have authority, to use the System.

2.2 Categories of Registered User

Registered Users will be designated by Pro Medicus into one of the following categories:

(a) Registered Diagnostic Service Provider; or

(b) Registered Nominated Recipient.

2.3 Nomination as Nominated Recipient

(a) You acknowledge that you are a Referring Practitioner.

(b) Any Registered Diagnostic Service Provider may at their discretion elect to nominate you as their Nominated Recipient.

(c) This occurs by Pro Medicus receiving a Nominated Recipient Application Form from you or the Registered Diagnostic Service Provider who is nominating you. The Form contains the information required by Pro Medicus in order to register you as a Nominated Recipient of that Registered Diagnostic Service Provider. The Form may include your identity and your computer system details (so that Pro Medicus can check that your computer is compatible with the System).

2.4 Registration of Nominated Recipient

(a) If Pro Medicus accepts your Nominated Recipient Application Form, and if you have accepted this Agreement, Pro Medicus will register you as a Registered User of the System.

(b) This will enable you to use the System to receive Medical Reports electronically as Messages from such one or more Registered Diagnostic Service Providers who have nominated you as their Nominated Recipient.

3. PROVISION OF THE SYSTEM - PRO MEDICUS OBLIGATIONS TO REGISTERED USERS

3.1 Pro Medicus licences you to use the System for your non-exclusive and non-transferable use in accordance with this Agreement.

3.2 Pro Medicus will make available to you and licences you to use a copy of the Promedicus.net Client Software and a Mail Box for the purpose of connecting to the Promedicus.net Server.

3.3 Pro Medicus will make available the Promedicus.net Server and endeavour to ensure that it is continuously available on a 24 hour, every day basis, however Pro Medicus is not responsible or liable for any interruption, unavailability or downtime of the Promedicus.net Server.

3.4 Pro Medicus will provide a permanent connection between the Promedicus.net Server and the Internet. Pro Medicus will endeavour to ensure that the connection is continuously available on a 24 hours, everyday basis, however, Pro Medicus is not responsible or liable for any interruption, unavailability or downtime of that connection.

3.5 Save as provided in clauses 3.1 to 3.4 or unless otherwise agreed in writing between you and Pro Medicus, Pro Medicus is not responsible for providing any other hardware, software, peripheral equipment, Internet connection or any other goods or service which is or may be required for using the System.

3.6 Pro Medicus may engage agents or sub-contractors in connection with the supply of all or any part of the System to you.

4. ACCESS TO AND USE OF THE SYSTEM - YOUR OBLIGATIONS TO PRO MEDICUS

4.1 Other than that which will be provided by Pro Medicus under clause 3, you are responsible for providing and maintaining at your own cost your own communications line, communications equipment, hardware, software, Internet connection service and all other equipment or service which is compatible with, and required for access to and use of, the System.

4.2 You will comply with all reasonable directions issued by Pro Medicus pertaining to your access and use of the System.

4.3 You will not act on or through the System so as to interfere with or disrupt any other Registered User of the System or their ISP, computers, hardware or software. Without limitation, you will not nor attempt to:

(a) circulate any unsolicited publicity or advertising material;

(b) propagate any computer worms or viruses;

(d) send harassing, obscene, indecent, offensive or threatening electronic mail; or

(e) place, transmit or store any defamatory material.

4.4 You will not access, nor permit any other person to access, the System for any purpose or activity of an illegal, fraudulent or defamatory nature.

4.5 You will be responsible for your Internet connection, including the acts or omissions of your ISP whilst transmitting, receiving, storing or handling Messages as if they were your own acts or omissions.

4.6 You acknowledge, agree with and undertake to Pro Medicus that:

(a) all Intellectual Property in the Pro Medicus Software is and remains owned by Pro Medicus and you do not acquire any rights or title or ownership in the Pro Medicus Software other than a non-exclusive license to use the Pro Medicus Software in accordance with this Agreement;

(b) you will not copy, reproduce, translate, adapt, modify, reverse-assemble or reverse-compile all or any part of the Pro Medicus Software, or allow or cause a third party to do any of the above, without the prior written consent of Pro Medicus, except for making one copy for back-up or archival purposes only;

(c) you will not alter or delete or interfere with any copyright or trade mark notices which appear on or are depicted in the Pro Medicus Software; and

(d) you will adopt and maintain reasonable systems and procedures for the safe, secure and proper use, supervision and control of the Pro Medicus Software by you and your officers, employees or agents and to protect the Pro Medicus Software in your possession from unauthorised access or misuse by any other person.

4.7 You will accept and install any upgrades or new releases of the Client Software that are provided to you by Pro Medicus (at no cost) for maintaining or enhancing the functionality of the System. Those upgrades or new releases will then be licensed to you on the terms of this Agreement.

5. SECURITY PROCEDURES AND PRIVACY PROTECTION

5.1 Pro Medicus cannot access and does not collect nor hold any personal information or health information about your Patients or their Medical Reports that are transmitted as Messages via the System.

5.2 You are responsible for complying with all privacy laws as they may relate to your use of the System and the privacy protection of information about your Patients or other persons.

5.3 Your use of the System requires that Pro Medicus collects and holds certain information as to your identity (for example, your name, practice address, provider number) and details of your computer system. You agree that Pro Medicus may use or disclose that information lawfully and by fair means for the purpose of:

(a) helping Pro Medicus efficiently and effectively deliver and improve on the System ("primary purpose"); or

(b) any other purpose ("secondary purpose") if you would reasonably expect Pro Medicus to use or disclose that information for that secondary purpose and the secondary purpose is related to the primary purpose; or

(c) sending you news, information about Pro Medicus' activities and other general promotional material which Pro Medicus believes may be of interest to you.

[For further information on Pro Medicus' Privacy Policy, you should refer to the Pro Medicus Privacy Statement on the Pro Medicus Website.]

5.4 You will take appropriate steps to establish and maintain procedures within your organisation to ensure as far as reasonably practicable that your Mail Box and Security key are not accessible to unauthorised persons, are not lost or destroyed, are capable of being retrieved and used only by properly authorised persons and maintained in confidence.

5.5 You will inform Pro Medicus if you become aware of any breach of security or unauthorised use of the System.

5.6 You acknowledge that the System uses advanced encryption technology for security purposes. However, Pro Medicus cannot guarantee and does not warrant that all Messages transmitted via the System are totally secure against hacking or other improper activity over the Internet.

6. SENDING OF MESSAGES TO YOU BY A DIAGNOSTIC SERVICE PROVIDER

6.1 Messages using the System may only be sent to you as Recipient and must not be sent by you to any other person or in any other manner.

6.2 Messages must only be used for the purpose of sending and receiving Medical Reports and not for any other purpose unless agreed to in writing by Pro Medicus.

6.3 Pro Medicus does not make any warranty nor assume any liability in relation to:

(a) whether any Message is or will be deemed to constitute a valid memorandum in writing signed by or on behalf of the Sender for the purposes of any law which requires the transaction to be evidenced by a memorandum in writing or a written memorandum which is signed; or

(b) whether any Message is valid or enforceable in any legal proceeding relating to that Message; or

(c) whether any Messages that are sent by a Sender are complete and accurate and/or contain the Sender's Signature so as to allow the Recipient to verify the authenticity of the Message; or

(d) whether any Messages are collected or are not collected by a Recipient.

6.4 You acknowledge that Pro Medicus and/or third parties have the right to include within the System information content other than Medical Reports, including program updates and other information which will be made available for viewing, reading or use by Registered Users of the System.

7. CONFIDENTIALITY OBLIGATION

7.1 You will not disclose or make public the Confidential Information of Pro Medicus or any other Registered User that is disclosed to you or comes into your possession except:

(a) with the prior written approval of Pro Medicus or the other Registered User, as the case may be;

(b) in circumstances where you are legally compelled to disclose that Confidential Information.

7.2 You will take all reasonable steps to ensure that your employees and agents do not make public or disclose any Confidential Information in circumstances which would constitute a breach of clause 7.1 if the disclosure had been made by you.

7.3 In protecting the confidentiality of the Confidential Information, you will exercise not less than the same degree of discretion and precaution that you apply if protecting your own confidential information.

7.4 You will upon becoming aware of any breach of confidentiality immediately inform the other person to whom the Confidential Information belongs or relates of the circumstances of the breach.

8. LIABILITY ISSUES

8.1 You acknowledge to and agree with Pro Medicus that you have exercised your own independent assessment and judgment in registering as a Registered User of the System and that you have not relied upon any representation made by Pro Medicus in relation to the System which is not expressly stated in this Agreement.

8.2 Pro Medicus provides the System "as is" and represents only that the System will in material respects substantially perform in accordance with its intended purpose. However, Pro Medicus does not guarantee that the System will continuously or will always perform or operate accurately or completely or free of any error.

8.3 Any and all other terms, warranties or representations, including any warranties of title, merchantability, fitness for a particular purpose or non-infringement, if any, made by Pro Medicus either before or after the making of this Agreement, and whether made in writing or verbally, or implied by statute or otherwise, relating in any way to the System are excluded from this Agreement.

8.4 If any statute implies into this Agreement any implied term which implied term cannot be lawfully excluded, that implied term will apply to this Agreement. However, the liability of Pro Medicus for any breach by it of that implied term will be limited, at the option of Pro Medicus, to any of the following:

If the breach relates to services:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

If the breach relates to goods:

(a) the replacement of the goods;

(b) the repair of the goods;

8.5 Pro Medicus will not be liable in contract, tort, equity, strict liability or any other way to you or to any of your Patients, officers, employees, agents or consultants for or in respect of any loss or damage (including without limitation any loss of profit, data, consequential or incidental loss or damage) to any property or business or death or personal injury, however that may be caused, which may be suffered or incurred or which arises directly or indirectly from or in consequence of the supply of the System to you or the use of the System, and regardless of whether or not Pro Medicus is advised of any such loss or damage.

8.6 You will at all times indemnify and hold harmless Pro Medicus and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from directly or indirectly any breach by you of your obligations under this Agreement or any wilful, unlawful or negligent act or omission made by you or any of your officers, employees, agents or consultants or any other person for whose acts or omissions you are vicariously liable, relating to the use of the System.

8.7 Without limitation to the above, you will indemnify Pro Medicus against any action, claim or demand made by any of your Patients, officers, employees or agents or their personal representatives or dependents relating to this Agreement or the use of the System.

9. TERMINATION

9.1 You may terminate this Agreement at any time upon 60 days prior written notice to Pro Medicus.

9.2 Pro Medicus may terminate this Agreement immediately by notice in writing to you if:

(a) you are in breach of any term of this Agreement and that breach is not remedied within 7 days of Pro Medicus notifying you of the breach;

(b) you become, threaten or resolve to become, or are in jeopardy of becoming, subject to any form of insolvency administration; or

9.3 Upon termination of the Agreement:

(a) Pro Medicus will be regarded as discharged from any further obligations under this Agreement;

(b) termination does not affect any additional rights or remedies which Pro Medicus may have or pursue under this Agreement or at law; and

(c) you will destroy or deliver up to Pro Medicus all copies of the Pro Medicus Software in your possession and cease using any copy of the Pro Medicus Software.

10. GENERAL

10.1 Force Majeure

Pro Medicus will not be liable for any delay or failure to perform its obligations under this Agreement which is due to force majeure. If a delay or failure by Pro Medicus to perform its obligations is caused by force majeure, the performance of those obligations will be suspended. However, if the suspension exceeds 60 days, you may then terminate this Agreement on providing notice in writing to Pro Medicus.

10.2 Assignment and Novation

This Agreement must not be assigned or novated by you without written consent from Pro Medicus. Pro Medicus may consent to the assignment or novation of this Agreement by you subject to such conditions as it chooses to impose.

10.3 Entire Agreement

This Agreement constitutes the entire agreement between Pro Medicus and you relating to the System and supersedes any and all prior representations, agreements and understandings, whether verbal or in writing.

10.4 Applicable Law

This Agreement will be governed by and construed according to the law of the State of Victoria and you submit to the jurisdiction of Victorian Courts or Australian Commonwealth Courts.

10.5 Notices

(a) Notices under this Agreement may be delivered by hand, by mail, by facsimile or by Email.

(b) Notice will be deemed given:

(i) in the case of hand delivery, at the time of delivery to the recipient;

(ii) in the case of posting by mail, 3 days after the date of dispatch of the notice by the sender;

(iii) in the case of facsimile, upon receipt of a clear transmission confirmation report by the sender if received during Business Hours, or otherwise at the commencement of Business Hours on the next Business Day;

(iv) in the case of Email, upon receipt by the sender of a clear delivery report if the report is received within Business Hours or otherwise at the commencement of Business Hours on the next Business Day.

10.6 Severance

If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, then that provision will be deemed to be deleted and this Agreement will otherwise remain in full force and effect apart from that provision.

10.7 Variation of Agreement

Pro Medicus reserves the right to amend this Agreement at any time. Pro Medicus will notify you in writing of the amended Agreement. The amended Agreement will automatically be effective 30 days after the date of that notice. Other than as provided above, this Agreement may not be amended except in writing signed by you and Pro Medicus.

10.8 Survival of Agreement

(a) Any term of this Agreement which is capable of having effect after the termination of this Agreement will remain in full force and effect following the termination of this Agreement.

(b) Subject to any provision to the contrary, this Agreement will be of benefit to and binding upon you and Pro Medicus and our respective successors, trustees, permitted assigns or legal personal representatives.

10.9 Waiver

(a) No term of this Agreement will be deemed to be waived except by notice in writing signed by a party.

(b) Any failure by Pro Medicus to enforce any term of this Agreement, or any delay or indulgence granted by Pro Medicus to you will not be construed as a waiver by Pro Medicus of its rights under this Agreement.

(c) A waiver by Pro Medicus of a breach by you will not prejudice its rights in respect of any subsequent breach of this Agreement by you.

10.10 Disputes

(a) Any dispute arising in connection with this Agreement which cannot be settled by negotiation between Pro Medicus and you or our respective representatives will be submitted to arbitration in accordance with the rules for the conduct of commercial arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both parties may be legally represented.

(b) Prior to referring a matter to arbitration, you and Pro Medicus agree to explore in good faith the prospect of resolution of the dispute with or without mediation.

(c) Nothing in this clause will prevent Pro Medicus from seeking urgent equitable relief before an appropriate court or collection proceedings for any unpaid fees or charges.

11. DEFINITIONS

In this Agreement, the following definitions apply:

"Confidential Information" means any information that relates directly or indirectly to the activities or business of a person in connection with the System or this Agreement, which information is not lawfully in the public domain and includes the information in a Medical Report.

"Diagnostic Service Provider" means a group or practice of specialist medical practitioners or other skilled health technicians who provide specialised medical and health related diagnostic services, including, for example, a radiologist or a pathologist.

"Force Majeure" means any circumstance beyond the reasonable control of a person which occurs without the fault or negligence of the person and will include, but is not limited to, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, riots, strikes, malicious damage or sabotage.

"Intellectual Property" means any and all intellectual property rights subsisting anywhere in the world and includes copyright, trade mark, design, patent, semi-conductor or circuit layout rights.

"Internet" means the worldwide connection of computer networks known as the Internet.

"ISP" means an Internet Service Provider who is in the business of providing a service that allows its customers to connect and have access to the Internet.

"Key Pair" means a Private Key and its mathematically related Public Key.

"Mail Box" means a specific email address and/or password created by Pro Medicus for a Registered User.

"Medical Report" means a medical report or diagnostic results written by a Diagnostic Service Provider pertaining to a test or examination performed on or for a Patient.

"Message" means an identified and structured set of data that is securely transmitted electronically through the System.

"Nominated Recipient" means a Referring Practitioner who is nominated to be a Registered User (subject to Pro Medicus' approval under clause 2) by a Registered Diagnostic Service Provider.

"Patient" means a natural person who is referred by a Referring Practitioner to a Diagnostic Service Provider.

"Private Key" means a mathematical key used to decrypt Messages encrypted with the corresponding Public Key.

"Pro Medicus" means Pro Medicus Limited (ACN 006 194 752).

"Promedicus.net Client Software" means the Pro Medicus proprietary computer software provided by Pro Medicus to be used under licence by a Nominated Recipient as an integral component part of the System and includes the Promedicus.net Secure Email Client, Promedicus.net Clinical Report Viewer and Promedicus.net Scheduler.

"Promedicus.net Secure Email Server Software" means the Pro Medicus proprietary computer software provided by Pro Medicus to be used under licence by a Diagnostic Service Provider as an integral component part of the System.

"Promedicus.net Server" means the Pro Medicus internal configuration of computer hardware, software and processing and communication facilities provided by Pro Medicus as an integral component part of the System.

"Pro Medicus Software" means any computer software distributed or provided by Pro Medicus in relation to the System and includes the Promedicus.net Client Software and the Promedicus.net Secure Email Server Software.

"Pro Medicus Website" means the website of Pro Medicus located on the World Wide Web at URL: www.promedicus.com.au.

"Public Key" means a mathematical key that can be made publicly available and which is used to encrypt Messages that can then be decrypted using the corresponding Private Key.

"Recipient" in relation to a Message means the person who receives the Message.

"Referring Practitioner" means a medical practitioner, other health service provider, hospital, government registry or other medical institution who refers a Patient to a Diagnostic Service Provider.

"Registered User" means a Diagnostic Service Provider or Nominated Recipient who is registered by Pro Medicus as a user of the System under clause 2.

"Security Key" means a Key Pair, Private Key or Public Key or any combination of them which Pro Medicus creates or allows to be created for a Registered User.

"Sender" in relation to a Message, means the person who transmits the Message.

"Signature" means an authorised written signature of a person.

"System" means the "Promedicus.net Secure Email System" as described in the Background to this Agreement.

"Transaction" means any single transmission of a Message sent by a Sender to a Recipient that is received by the Promedicus.net Server, and is deemed to include Messages that have been sent but may not yet have been received.

"Transmit" means to cause a Message to be sent from a Sender to a Recipient.

"World Wide Web" means the method and system of representing and obtaining graphical data and information through the Internet known as the World Wide Web.

"writing" includes any mode of representing or reproducing words or names in a visible form and "written" has a corresponding meaning.