Smileyscope VR: End User Licence Agreement v1.3

 

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1. This Agreement

(a) Please read this End User Licence Agreement (agreement) carefully: it governs Your right to use the Smileyscope Products and Services (along with the Head Terms).

(b) By starting the Smileyscope VR or otherwise using the Smileyscope Products and Services, You agree to be bound by this agreement, including our collection and use of data set out in the Smileyscope Privacy Policy available at www.smileyscope.com.au/privacy-policy.

(c) If You do not agree with this agreement or the Smileyscope Privacy Policy, do not proceed to use the Smileyscope Products and Services.

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2. Users

In order to use Smileyscope Products, You agree that you are:

(a) authenticated as an Authorised User; or

(b) a patient using the Smileyscope Product under the supervision of an Authorised User.

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3. Licence

3.1 Ownership: You acknowledge that Smileyscope (or its Licensors) own:

(a) the Smileyscope Products and Services; and

(b) all intellectual property associated with the Smileyscope Products and Services.

The licence below confers no title or ownership in the Smileyscope Products and Services and should not be construed as a sale or transfer of any rights in the Smileyscope Products and Services.

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3.2 Licence Grant: Subject to clause 3.5 and the terms set out in this agreement, Smileyscope grants You a limited, revocable, non-exclusive and non-transferable licence for the duration of the Term to:

(a) use the Smileyscope Products solely for the purposes of providing or receiving clinical services;

(b) reproduce, copy and use the Documentation solely in connection with the use of Smileyscope Products in accordance with this agreement; and

(c) reproduce, copy and use any reports created by Smileyscope for the Smileyscope Licensee in connection with the Smileyscope Products and Services.

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3.3 Use: You must only use the Smileyscope Products and Services:

(a) strictly in accordance with this agreement and any applicable Documentation, manuals and instructions (including written or oral instructions provided by Smileyscope); and

(b) the Smileyscope Software with the Smileyscope Hardware.

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3.4 Restrictions: You must not, and must not encourage or assist a third party to:

(a) use the Smileyscope Products and Services for any purpose other than expressly permitted under this agreement;

(b) sell, sub-licence, subcontract, redistribute, assign or transfer Your rights in connection with the Smileyscope Products and Services to any third party, or otherwise exploit the Smileyscope Products and Services, in whole or in part;

(c) remove, add or alter any proprietary notices, labels or marks (or other authorship or origin information) from the Smileyscope Products and Services;

(d) copy, modify, alter or adapt Smileyscope Products or Smileyscope Services (or any software or other part thereof) or merge all or any part of Smileyscope Products or Smileyscope Services with any other software without Smileyscope’s prior written permission;

(e) reverse-engineer, reverse assemble or reverse compile, or directly or indirectly allow or cause a third party to reverse-engineer, reverse assemble or reverse compile, the whole or any part of Smileyscope Products or Smileyscope Services, except as expressly permitted by law; or

(f) perform any act which infringes the Intellectual Property rights which subsist in Smileyscope Products and Services.

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3.5 Responsibility for use: You are solely responsible for the manner in which You use the Smileyscope Products and Services and agree that Smileyscope will have no liability to You in respect of any decisions or actions taken (or not taken) by You as a result of access to or the use of the Products and Services, and all Loss suffered or incurred by You directly or indirectly arising from or in connection with failure to strictly comply with this clause 3. In particular, but without limitation, You acknowledge and agree that none of the information provided through the Product constitutes any form of advice (medical or otherwise), recommendation, representation or endorsement, and none of the same should be relied upon by any person for any reason, including, without limitation, in connection with any personnel decision. You warrant that:

(a) if you are a patient, you are using Smileyscope as a general wellness product for maintaining or encouraging a healthy lifestyle and is unrelated to the diagnosis, cure, mitigation, prevention, or treatment of a disease or a condition; or

(b) if you are an Authorised User, you agree you are a licensed healthcare provider using Smileyscope Products as a Physician or under the supervision of a similarly authorised professional, and are using the Product in accordance with training, and the directions in the User Manual including but not limited to the relevant indications for use, contraindications, precautions; and

(c) the Therapy Mode as described in the User Manual will be only used in accordance with training and directions in the User Manual including but not limited to the relevant indications for use, contraindications, precautions, and that in approved markets where supported by labelling, marketing, Therapy mode will be used following prescription by a Physician or similarly authorised professional, by a Physician or similarly licensed healthcare professional.

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4. Additional Responsibilities

4.1 General Obligations: You must:

(a) take reasonable care in the use and secure storage of the Smileyscope Products, including but not limited to keeping all Smileyscope Products in appropriate storage conditions in an appropriately secure area accessible only to authorised personnel;

(b) cooperate with Smileyscope and comply with any reasonable instructions provided by Smileyscope from time to time;

(c) install updates and new releases of the Smileyscope Products as required, in order to continue use of the Smileyscope Products; and

(d) provide information and documentation relevant to the Smileyscope Products and Services that Smileyscope reasonably requires.

 

4.2 Laws:

(a) You are responsible for, and must comply with all applicable laws and regulations for your relevant jurisdiction in relation to Your use of the Smileyscope Products and Services.

(b) You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Smileyscope Products and Services. You agree that neither the Smileyscope Products and Services nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.

 

4.3 Injunctions: In addition to any other remedies available to Smileyscope under this agreement or at law, You acknowledge that in the event of any breach or threatened breach by You of this clause 4, damages alone will be an inadequate remedy and Smileyscope is entitled to an interim, interlocutory or permanent injunction or such other equitable remedy restraining You without showing or proving any actual damages sustained by Smileyscope.

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5. Changes

5.1 Changes to this agreement: Smileyscope may change or update the terms of this agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with, or as applicable, without prior notice to You. We may make these changes or updates by updating the version of this agreement displayed by the Smileyscope Software and/or by updating the version of this agreement online. You can review the most current version of this agreement by accessing it at https://www.smileyscope.com.au/eula. Your continued use of the Smileyscope Products and Services following any changes to this agreement constitutes Your complete and irrevocable acceptance of any and all such changes. If future changes are unacceptable to You, You must stop using the Smileyscope Products and Services.

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5.2 Changes to the Smileyscope Products: Smileyscope, in its sole and absolute discretion, may modify or update the Smileyscope Products. You agree that Smileyscope personnel may access the Smileyscope Products to install modifications or updates and that the Smileyscope Products may install or download such modifications or updates automatically.

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6. Term

This agreement is effective upon the earlier of receipt by You of the Smileyscope Products or receipt by You of the Smileyscope Services and shall continue (unless terminated earlier in accordance with clause 7) until the expiry or termination of the Head Terms.

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7. Suspension and Termination

7.1 Suspension for breach: If You breach any provision of this agreement, Smileyscope may:

(a) suspend any or all its obligations to You under this agreement; and/or

(b) disable Smileyscope Products using time out codes, remote access or other technological measures.

On receipt of notice of Your breach of this agreement, You must take all necessary and reasonable steps to remedy the breach and its consequences; and use all reasonable efforts to minimise any loss to Smileyscope.

 

7.2 Suspension for malicious, illegal or unacceptable use: If Smileyscope reasonably suspects that malicious, illegal, or unacceptable use of Smileyscope Products and Services may occur, is occurring or has occurred, Smileyscope may at its sole discretion, without notice or giving any reason or incurring any liability for doing so, take such action as it sees fit, including immediately:

(a) disabling Smileyscope Products and Services; and

(b) suspension or deactivation of any access passwords or activation codes.

 

7.3 Termination: Smileyscope may terminate this agreement (including during any period of suspension under clause 7.1 or 7.2) immediately if:

(a) You are no longer an Authorised User (including where the Head Terms expire or are terminated for any reason); or

(b) You breach any provision of this agreement.

 

7.4 Consequences of termination or expiry: On termination or expiry of this agreement:

(a) Smileyscope may disable Smileyscope Products and Services using time out codes, remote access or other technological measures; and

(b) You shall cease using the Smileyscope Products and Services and return any Smileyscope Products and Documentation to Smileyscope, if required by the Head Terms.

 

7.5 Survival:

(a) The rights, obligations and indemnities in clauses 3.1, 3.4, 3.5, 4.2, 4.3, 7.4, 7.5, 8, 9, and 10, and any other obligations which are expressed to, or by their nature, survive expiry or termination of this agreement will survive the termination or expiry of this agreement. Termination or expiry of this agreement does not affect any rights which accrued before the date of expiry or termination.

(b) If any part of this agreement becomes invalid, illegal or unenforceable, this will not affect the validity of the remaining EULA.

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8. Confidentiality Obligations

8.1 General: You must keep Confidential Information secure and confidential and only use it for the purposes of this agreement.

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8.2 Use and Disclosure: You must not use or disclose Confidential Information without Smileyscope’s prior written approval except:

(a) as necessary to other Personnel who need to know the Confidential Information for the purposes of this agreement ; or

(b) as may be required by applicable law (in which case, prior to disclosure, You must consult with Smileyscope about the form and content of such disclosure to the extent permitted).

Before disclosing Confidential Information, You must use best endeavours to ensure that the person You disclose that Confidential Information to is aware of its confidential nature and has agreed to comply with the confidentiality obligations under this agreement

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9. Indemnity

9.1 Indemnity: You shall at all times be solely responsible for the delivery of clinical services provided. You agree to indemnify, defend and hold harmless Smileyscope (including its officers, directors and Personnel) for any Loss suffered or incurred by You arising out of or in connection with Your use or misuse of, or negligence relating to, the Smileyscope Products and Services. This indemnity does not apply to the extent that the Loss is caused or contributed to by Smileyscope’s gross negligence or unlawful conduct.

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9.2 Claim Management: We will give you prompt written notice of a claim giving rise to the indemnification obligation and reasonably cooperate with you relating to the claim. You must: (1) reimburse us for any reasonable out-of-pocket expenses we incur in providing such reasonable cooperation; and (2) not enter into any settlement that admits fault, wrongdoing or damages without our prior written consent.

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10. Disclaimers; Limitation of Liability

10.1 Disclaimer and Exclusion: The Smileyscope Products and Services are provided “as is” and “as available”. All express or implied guarantees, warranties, representations, or other terms and conditions relating to this agreement or its subject matter that are not expressly contained in this agreement are hereby disclaimed and excluded from this agreement to the maximum extent permitted by law (including, without limitation, all implied warranties of merchantability, title, non-infringement and fitness for a particular purpose). The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed and does not apply to this Agreement. Subject to clause 10.2 You acknowledge that Smileyscope cannot and does not warrant that access to Smileyscope Products and Services will be continuous and fault free, that any defect will be corrected within a specific time frame, or that any Smileyscope Product, Smileyscope Service, or information from Smileyscope is on time, accurate, reliable, secure, virus free or without defect.

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10.2 Non-Excludable Provisions:

(a) Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any applicable law which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

(b) If any guarantee, warranty, term or condition is implied or imposed in relation to this agreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and Smileyscope is able to limit Your remedy for a breach of the Non-Excludable Provision, then the liability of Smileyscope for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

(i)  in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or

(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

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10.3 Exclusion of loss: To the extent permitted by law and except as expressly provided to the contrary in this agreement, Smileyscope will not be liable for any losses of any kind, including special, indirect, consequential or incidental loss or damage, whether in contract, tort (including in negligence), in equity, under statute, or on any other basis.

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10.4 Liability Cap: Subject to clauses 10.2 and 10.3, and to the maximum extent permitted by law, the maximum aggregate liability of Smileyscope for all claims under or relating to this agreement or its subject matter, whether in contract, tort (including in negligence), in equity, under statute, or on any other basis, is limited to the amount of AUD$100.

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11. Force Majeure

11.1 Notwithstanding any other provision of this agreement, Smileyscope will not be liable for any failure to perform its obligations under this agreement where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event.

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11.2 In the case of a Force Majeure Event, Smileyscope will use all reasonable efforts to minimise the effect of the Force Majeure Event and resume performance in accordance with this agreement as soon as possible.

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12. General

12.1 Governing Law: The laws of Victoria, Australia govern this Agreement. Each Party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia.

 

12.2 Waivers: Waiver of any right, power, authority, discretion or remedy arising on a breach of this agreement must be in writing and signed by the Party granting the waiver. No failure or delay in exercising or enforcing any right, remedy or provisions shall constitute a waiver thereof. A Party may not rely on any conduct of another Party as a defence to exercise of a right, power, authority, discretion or remedy by that other Party. This clause 12.2 may not itself be waived except in writing.

 

12.3 Assignment: Smileyscope may assign this agreement and its rights hereunder, without consent, to a third party as part of the merger, acquisition, reorganization or sale of the whole or a substantial part of Smileyscope’s business or assets. You must not assign Your rights under this agreement without the prior written consent of Smileyscope.

 

12.4 Subcontracting: Smileyscope may sub-contract for the performance of any part of its obligations under this agreement.

 

12.5 Severability: If the whole or any part of a provision of this agreement is void, unenforceable or illegal it is severed.  In such case, the remainder of this agreement will continue to have full force and effect.

 

12.6 Entire Agreement: This End User License Agreement, together with the related agreement between Smileyscope and the Smileyscope Licensee, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous communications, agreement, arrangements or documents between the Parties with respect to such subject matter.

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13. Definitions

13.1 In this agreement, unless inconsistent with the context:

Authorised User means a Personnel member of the Smileyscope Licensee who:

(i) has been authorised by the Smileyscope Licensee to use Smileyscope Products and Service; and

(ii) has undergone the required Smileyscope Products and Services training specified by Smileyscope; and

(iii) has undergone refresher training as specified by Smileyscope from time to time.

 

Confidential Information means, in relation to a party, all information of a confidential or proprietary nature relating to a party or its business which by its nature is confidential, which is disclosed to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party, and includes:

(i) information which relates to Smileyscope Products and Services, including account details, passwords and activation codes, development concepts, source code, object code, specifications, data models and schema, technical information, trade secrets, protocols, algorithms, manuals, drawings and data created or used by Smileyscope, or information about suppliers or customers of Smileyscope; and

(ii) the design, specification and content of Smileyscope Products and Services, except insofar as that information is then in the public domain other than as a result of a breach by You of this Agreement.

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Documentation means technical and operational documentation (if any) supplied by Smileyscope to You in respect of the Smileyscope Products and Services, as amended by Smileyscope from time to time.

 

Force Majeure Event means an act, omission or circumstance over which Smileyscope could not have reasonably exercised control including telecommunication failures.

 

Head Terms means, as applicable:

(i) The Smileyscope Licence Terms and Conditions (available online at https://www.smileyscope.com.au/terms), or any other head terms executed in writing by Smileyscope and the Smileyscope Licensee, ; or

(ii) where the Smileyscope Licensee is receiving the Smileyscope Products and Services on trial, the Smileyscope Product Evaluation Agreement agreed by Smileyscope and the Smileyscope Licensee.

 

Intellectual Property Rights means all industrial and intellectual property rights throughout the world, including all copyrights, designs (whether or not registrable), rights in respect of inventions or discoveries (whether or not patentable), trade marks, trade names and brand names (whether or not registrable), confidential information, and software, programs, codes and ideas (whether or not patentable, copyrightable or constituting trade secrets or know-how)  together with the right to apply for registration of any of the foregoing.

 

Loss means any loss, damage, cost, liability or expense however incurred (including liability to a third party).

 

Non-Excludable Provision has the meaning given to it in clause 10.2.

 

Party and Parties means a party to this agreement and their respective successors, trustees and permitted assigns.

 

Personnel means an officer, employee, agent or contractor.

 

Smileyscope Hardware means the custom designed virtual reality headset with an embedded touch screen device provided by Smileyscope, as updated or replaced from time to time.

 

Smileyscope Licensee means the organisation or entity that is trialling or has bought licences to the Smileyscope Products and Services either directly from Smileyscope or a Smileyscope-authorised reseller.

 

Smileyscope Products means:

(i) the Smileyscope Hardware; and

(ii) the Smileyscope Software.

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Smileyscope Products and Services means the Smileyscope Products and the Smileyscope Services.

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Smileyscope Services means the provision of summary reports and onsite presentations, training and demonstrations, or other Smileyscope Product-related services, to the extent any of the foregoing are provided by Smileyscope to You.

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Smileyscope Software means the customised Android user interface and the Smileyscope Virtual Reality applications, including the animated virtual reality content as developed and updated by Smileyscope from time to time for the Smileyscope Virtual Reality applications and any new releases or updates provided under this agreement.

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We, us, our or Smileyscope means Smileyscope Pty Ltd. (ABN 17 617 126 708), Level 1, 333 Exhibition Street, Melbourne VIC 3000.

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You or Your means the person using or supervising the use of the Smileyscope Products and Services.

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14. Interpretation

In this agreement, unless inconsistent with the context:

(a)          words denoting the singular include the plural and vice versa;

(b)          words denoting any gender include all other genders;

(c)           words denoting individuals shall include corporations, firms, unincorporated bodies, government authorities and instrumentalities;

(d)          any headings are for convenience and ease of reference only and does not affect the interpretation of this Agreement;

(e)          a provision of this Agreement will not be construed adversely to the Party that drafted it;

(f)           a reference to this Agreement includes this Agreement as amended, varied, novated, supplemented or replaced from time to time;

(g)          a reference to legislation or a provision of legislation includes:

(i)            all regulations, orders or instruments issued under the legislation or provision; and

(ii)           such legislation or provision as amended or replaced from time to time; and

(h)          a reference to “includes” and “including” is to be construed without limitation.

 

Smileyscope VR: End User Licence Agreement v1.3

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