PACSS PTY LTD ABN 45 628 474 199
SURGEON 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) Account means a registered account within the Platform.
(c) Agreement means the agreement formed between The Surgeon and the Company under, and on the terms of, these Terms of Service.
(d) Assessment means the online assessment to be completed by the Patient via the Platform.
(e) Assessment Content means any answers, responses, information or data that is provided by the Patient for an Assessment and shall be regarded as Confidential Information.
(f) Assessment Fee means a Fee charged by the Company for access to an Assessment as published in the Platform or otherwise agreed in the Commercial Terms.
(g) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(h) 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.
(i) Commercial Terms means any additional terms agreed between the Company and the Surgeon, including Fees, and (where relevant) includes any proposal or quote accepted in writing by the Surgeon and agreed by the Company.
(j) Company means PACSS Pty Ltd ABN 45 628 474 199.
(k) 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 the information to be 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.
(l) Consultation means a consultation provided by a Psychologist at the request of the Surgeon, subject to the Consultation Fee.
(m) Consultation Fee means a Fee charged by the Company for a Consultation as agreed in the Commercial Terms.
(n) Fee means a fee charged by the Company for its Services.
(o) GDPR means the EU General Data Protection Regulation 2016/679.
(p) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(q) 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.
(r) Patient means any person referred by a Surgeon to complete an Assessment.
(s) Platform means the “PACSS” digital system provided by the Company and accessible by the Surgeon.
(t) Privacy Act means the Privacy Act 1988 (Cth).
(u) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(v) Psychologist means a registered psychologist who assists with the provision of Services on behalf of the Company, and in particular prepares Reports.
(w) Report means a written report based on an Assessment and shall be regarded as Confidential Information.
(x) Services means the suite of services provided by the Company, including (without limitation) Assessments, Reports and Consultations.
(y) Site means the website found at http://www.thepacss.com, or such other URL used by the Company from time-to-time.
(z) Subscription Fee means a Fee charged by the Company for access to and use of the Platform as agreed in the Commercial Terms.
(aa) Surgeon means the entity that the Platform is licensed to under these Terms of Service (which if in doubt shall be the named Account holder).
(bb) Surgeon Data means all information, data, documents and other such materials entered into the Platform by a Surgeon or by any authorised user but does not include derivative and analytical data.
(cc) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(dd) Terms of Service means these terms and conditions that apply to the Surgeon, as updated from time-to-time, which can be found at the Site.
(ee) Trial Period means a free 30-day trial period provided by the Company on the terms and conditions agreed between the parties in the Commercial Terms.
1 AGREEMENT
1.1 The Surgeon agrees to use the Platform in accordance with the terms of these Terms of Service and Commercial Terms.
1.2 The Surgeon agrees:
(a) To pay the Fees in accordance with the pricing agreed in the Commercial Terms as and when they fall due; and
(b) That it is responsible for the conduct of each authorised user it authorises, who each must comply with these Terms of Service.
1.3 The Surgeon is responsible for ensuring that they have all necessary equipment and software to enable access to the Platform to complete an Assessment.
1.4 Where there is a conflict between the Terms of Service and Commercial Terms, the Commercial Terms shall prevail to the extent of the inconsistency.
1.5 The licence granted under these Terms of Service shall be ongoing until terminated in accordance these Terms of Service and/or Commercial Terms.
2 AUTHORISED USERS
2.1 The Company may add users under their Account to access the Platform upon written request by the Surgeon or providing such information during the Account set up process, in which case each authorised user will be provided their unique login details for the Account.
2.2 The Surgeon is solely responsible for the security of its username and password for access to their Account and for all conduct and activities of any user of their Account.
2.3 The Surgeon agrees to have in place procedures to ensure that any authorised user will respect and maintain the confidentiality and security of any Confidential Information.
3 USING PACSS
3.1 General
(a) To access and use the Platform:
i The Account must be set up and registered; and
ii The Surgeon must be a Fellow of the Royal Australasian College of Surgeons (FRACS Qualified Surgeon).
(b) The Surgeon agrees to use the Platform in accordance with any instructions provided by the Company, within the Platform and/or on the Site.
(c) The Company may permit or deny an Account in its absolute discretion (although the Surgeon may generally obtain an Account by registering via the Platform and accepting these Terms of Service).
(d) The use of the Platform may be further increased or restricted under any Commercial Terms between the Surgeon and the Company, which shall apply to each authorised user.
(e) The Surgeon must ensure that all Surgeon Data, including personal information, is complete and accurate and, where applicable, to keep such information regularly updated to ensure it remains complete and accurate at all times.
3.2 Features
(a) The Platform shall enable the Surgeon to (without limitation):
i Purchase Assessments;
ii Send Assessments to Patients;
iii View the status of Assessments;
iv View Reports;
v Update Account information; and
vi Access and use any other features made available by the Company from time-to-time.
4 ASSESSMENTS
4.1 Upon payment of the Assessment Fee, the Surgeon’s Account will be credited for an Assessment. The Surgeon can then at its discretion send the Assessment to the Patient via the Platform for completion.
4.2 The Surgeon acknowledges and agrees that:
(a) The Patient’s completion of the Assessment is voluntary and may be withdrawn at any time during the process, and the Company has no control over whether the Patient successfully completes an Assessment;
(b) The Company cannot guarantee that the Patient will complete the Assessment truthfully and on their own behalf, or will gain any benefit from the Assessment;
(c) The Assessment will not be shared with either the Surgeon or the Patient, but only the Report for the Assessment;
(d) The content of the Assessment, in particular the questions asked of the Patient, remain the Intellectual Property of the Company and the Surgeon 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;
(e) The Company may add, vary and/or remove elements of the Assessment as its complete discretion without prior notice; and
(f) The Company may use Assessment Content for research, developmental, statistical, analytical and/or archival purposes, subject to and in accordance with the Privacy Policy.
5 REPORTS
5.1 Subject to 5.3, the Company shall prepare a Report and make it available to the Surgeon via the Platform within the timeframe agreed between the parties, which in default shall be within 2 Business Days from the date the Patient completes the Assessment.
5.2 The Company will not share the Report with the Patient unless required by law or upon the specific written request of the Patient. In all other circumstances it is at the Surgeon’s complete discretion whether or not the Report is made available to the Patient.
5.3 The Surgeon represents to the Company that the Patient has consented to the Report being shared with the Surgeon. However, the Patient may specifically request that the Report is not shared with the Surgeon, in which case the Company shall be relieved of any obligation to provide the Report to the Surgeon.
5.4 The Surgeon acknowledges and agrees that:
(a) The Surgeon has an overarching duty of care to the Patient;
(b) The Company is not responsible and cannot be held liable for any breach of confidentiality for any unauthorised access to and/or disclosure of a Confidential Information which is made available to a Surgeon via the Platform;
(c) The Report is provided to the Surgeon for their professional consideration only and must be used in conjunction with standard professional practices and other relevant information available to the Surgeon consistent with the Surgeon’s duty of care to the Patient;
(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 the Surgeon must not rely exclusively on Reports for making any decisions;
(e) The Company shall have no liability to the Surgeon for any decision made in reliance on a Report.
6 CONSULTATIONS
6.1 The Company may provide a Consultation upon the written request of the Surgeon and, where on behalf of the Patient, subject to the Patient’s consent.
6.2 A Consultation may be conducted in person, over the phone or using an online communication platform such as Skype or Zoom.
6.3 During a Consultation, the Surgeon 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.
7 Fees, payments & refunds
7.1 Fees
(a) Subject to any Trial Period, the Surgeon must pay the Subscription Fee to access the Platform. For clarity, the Subscription Fee does not include additional support services offered by the Company.
(b) At the end of any Trial Period or subscription period, the Surgeon must pay the Subscription Fee to continue access to the Platform.
(c) Unless otherwise agreed in the Commercial Terms, the Subscription Fee shall be paid by one annual payment in advance by credit card.
(d) The Surgeon must pay the Assessment Fee to access Assessments for the Patient. Unless otherwise agreed, the Assessment Fee shall be paid via the Platform by credit card. For clarity, the Assessment Fee includes the preparation of the Report for that Assessment.
(e) The Surgeon may purchase multiple Assessments in the one purchase order and there is no limit on the amount of Assessments a Surgeon may purchase during any subscription period.
(f) The Surgeon agrees to pay the Consultation Fee for a Consultation in the manner agreed between the parties and acknowledges that the Company reserves the right to increase the standard Consultation Fee for any urgent requests that require the assistance of the Company within 2 Business Days, in which case the increased hourly rate will be notified to and agreed by the Surgeon in advance.
7.2 Variation
The Company may vary the Fees by giving the Surgeon written notice. Those Fees will apply from the beginning of the next subscription period (which will primarily be after each 12-month access period provided for by the Subscription Fee).
7.3 Refunds
(a) Subject to (b) below, no refunds are offered other than as required by law. In particular, there will be no refund for the Subscription Fee for any cancellation of a subscription before the end of the paid subscription term, unless agreed otherwise at the Company’s absolute discretion.
(b) The Company agrees to refund any paid Assessment Fees in the following circumstances:
i Where the Company fails to prepare and deliver a Report within 2 Business Days of receiving a completed Assessment; or
ii Where the Surgeon validly terminates this Agreement and there are Assessments credited to their Account that remain unused at the time of termination.
7.4 Late Payment.
(a) If the Surgeon does not pay the full Fees as required, the Company may suspend all access to the Platform for their Account.
(b) If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Surgeon’s Account without notice and end this Agreement.
(c) The Surgeon agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of the Platform in the event of (a);
ii Loss of Surgeon Data in the event of (b).
7.5 Currency
All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).
7.6 GST
(a) GST is applicable to any Fees charged by the Company to the Surgeon in Australia. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Surgeon with a Tax Invoice for any payments
(b) For Surgeons outside of Australia whereby GST is not applicable, then any Fees are exclusive of any applicable services or value- added tax or similar tax which shall be added to any Fees accordingly.
8 General conditions
8.1 Licence
(a) By accepting these Terms of Service, the Surgeon 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 Surgeon on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the Surgeon’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 Surgeon.
8.2 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 Surgeon with written notice, and the Surgeon will be required to accept the modified terms in order to continue using the Platform and Services.
8.3 Improvements
(a) The Surgeon agrees and accepts that the Platform is:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the Surgeon’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 Surgeon 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.
8.4 Support
(a) The Surgeon should notify the Company of any difficulties or problems they may experience with the Platform and the Company shall endeavour to respond to all general support requests within 2 Business Days.
(b) The Company also provides specific support services for Surgeons for the management of Patients upon request, primarily Consultations.
8.5 Use & Availability
(a) The Surgeon 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 Surgeon 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.
8.6 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 Surgeon.
(b) The Privacy Policy does not apply to how the Surgeon or the Surgeons handle personal information. If necessary under the Privacy Act and/or the GDPR, it is the Surgeon’s responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.
(c) The Platform may use cookies (a small electronic tracking code) to improve a Surgeon’s experience while browsing, while also sending browsing information back to the Company. The Surgeon may manage how it handles cookies in its own browser settings.
8.7 Security
The Company takes the security of the Platform and the privacy of Patients very seriously. The Surgeon agrees that they shall not do anything to prejudice the security or privacy of the Company's systems or the information on them and will take appropriate measures against the unauthorised or unlawful access to their Account.
8.8 Intellectual Property
(a) Trade marks. The Company has moral and registered rights in its trade marks and the Surgeon 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 Surgeon agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Surgeon warrants that it shall not infringe on any third- party rights through the use of the Platform.
(c) The Platform. The Surgeon agrees and accepts that the Platform is the Intellectual Property of the Company and the Surgeon further warrants that by using the Platform the Surgeon will not:
i Copy the Platform or the services that it provides for the Surgeon’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 Surgeon 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 Surgeon with respect to the Services.
8.9 Third Party Dependencies
The Surgeon 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.
8.10 Confidentiality
(a) The Company agrees to keep all Surgeon Data in the strictest confidence, and to the extent Surgeon 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 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.
8.11 Liability & Indemnity
(a) The Surgeon agrees that it uses the Platform and Services at its own risk.
(b) The Surgeon acknowledges that the Company is not responsible for the conduct or activities of the Surgeon, Patient or any authorised user, and that the Company is not liable for such under any circumstances.
(c) The Surgeon 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 Surgeon’s use of or conduct in connection with the Platform or Services, including any breach by the Surgeon or any authorised user of these Terms of Service.
(d) The Company make no representations, warranties or guarantees, whether express or implied, as to the accuracy, reliability or usefulness of 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 Surgeon’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.
8.12 Suspension and Termination
(a) The Surgeon may terminate immediately by giving the Company written notice or simply cancelling their Account.
(b) The Company may terminate this Agreement and access to the Services if the Surgeon 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 Surgeon’s obligation to pay Fees.
(d) Upon termination, any login details for the Surgeon’s Account will be automatically disabled.
8.13 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.
8.14 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 Surgeon 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 Surgeon notices and other correspondence via the Platform, to the details that the Surgeon submits to the Company, or that the Surgeon notifies the Company of from time-to-time. It is the Surgeon’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 Surgeon 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 Surgeon.
8.15 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