Last updated: December 22, 2020
Product Terms and Conditions
In these Terms and Conditions, the term “Purchaser” means the legal entity purchasing the Smileyscope Products and Services as set out under the “Purchaser’s Details” in the Order Form. The “Service Provider” means Smileyscope Pty Ltd
ABN: 17 617 126 708
1.Products and Services
1.1 The Purchaser does not obtain any title to any Products and holds all Products as bailee of the Service Provider until full payment for the Products is complete.
1.2 Risk in all Products passes to the Purchaser on delivery.
2.1 The Service Provider will provide the Products on the Commencement Date and there will be a limited one (1) year warranty for the Product unless extended or earlier terminated in accordance with these Terms and Conditions. Any extension shall take effect from the end of the Initial Term. Online and telephone support will be provided for two (2) years from the Commencement Date, and no further support shall be provided for the Product or Services unless mutually agreed to by the Parties.
2.2 All provisions of these Terms and Conditions shall continue in full force and effect upon any extension. Upon expiration or termination of the Term, all warranty, online and telephone support and related obligation of Service Provider shall termination but Sections 2.2, 3.2, 3.4, 3.5, 3.6, 5, 6.2, and 8 shall survive any expiration or termination hereunder.
3.1 The Purchaser must, for the purposes of the provision of the Products and Services:
(a) co-operate with the Service Provider; and
(b) provide information and documentation relevant to the Products and Services that the Service Provider reasonably requires.
3.2 The Purchaser must:
(a) ensure that the Products are used strictly according to these Terms and Conditions, in accordance with any applicable Documentation, manuals and instructions, in compliance with applicable laws, rules and regulations and not for any other purpose, unless agreed in writing by the Service Provider. The Purchaser agrees that the Service Provider will have no liability to the Purchaser in respect of any and all Loss suffered or incurred by the Purchaser directly or indirectly arising from or in connection with failure to strictly comply with the foregoing; and
(b) take reasonable care in the use and secure storage of the Products. This includes, but is not limited to, keeping all Products in appropriate storage conditions, in an appropriately secure area accessible only to authorised personnel and keeping complete and current records for all received, used and returned Products.
3.3 If any Products are damaged or lost at any time, the Purchaser:
(a) must notify the Service Provider as soon as reasonably practical of the damage or loss;
(b) cooperate with and provide all required information to the Service Provider; and
(c) pay all costs suffered or incurred by the Service Provider with replacing the Products including, but not limited to, the costs of resupplying replacement Products and the insurance excess as outlined in the Order Form to these Terms and Conditions. Purchaser acknowledges that Service Provider has no obligation to replace lost or damaged Products outside of the warranty period during the Term and that Service Provider may (but is not obligated to) replace any such Products with upgraded versions of the Product.
3.4 Within seven (7) days of the expiry or termination of the Term, unless the Products have been fully paid for by Purchaser or otherwise agreed by the parties, the Purchaser agrees to return all Products to the Service Provider at its usual place of business or such other location as notified by the Service Provider. The Purchaser must return the Products in the same clean condition and good working order it was when the Purchaser received it excluding ordinary fair wear and tear. If there is any damage to the Products beyond such ordinary fair wear and tear, the Service Provider may decide whether to replace or repair the Products, and the Purchaser agrees to pay all costs associated with replacing or repairing the Products including, but not limited to, any insurance excess as outlined in the Order Form to these Terms and Conditions.
3.5 Unless otherwise expressly permitted in writing by the Service Provider, the Purchaser must not, and must not encourage or assist a third party to:
(a) use the Products for any purpose other than permitted under these Terms and Conditions;
(b) copy, modify or adapt the Products; or
(c) reverse-engineer, decompile or disassemble any of the Products.
3.6 In addition to any other remedies available to the Service Provider under these Terms and Conditions or at law, the Purchaser acknowledges that in the event of any breach or threatened breach by the Purchaser of the provisions of clause 3.5:
(a) damages alone are an inadequate remedy for the Service Provider; and
(b) the Service Provider shall be entitled to an interim, interlocutory or permanent injunction or such other equitable remedy restraining the Purchaser without showing or proving any actual damages sustained by the Service Provider.
4.1 The Purchaser will pay the Service Provider all the Fees set out in the Order Form in accordance with these Terms and Conditions.
4.2 The Service Provider will invoice the Purchaser for all Fees in advance.
4.3 The Purchaser shall pay the Service Provider’s invoice (including any tax invoice), and all Fees are due and payable hereunder, within thirty (30) days of the giving of such invoice.
4.4 The Service Provider reserves the right to charge the Purchaser interest at the Interest Rate on all overdue payments, calculated daily, from the due date for payment until paid in full. All Fees are non-cancellable and non-refundable.
5.1 The Service Provider (or its Licensors) exclusively own all Intellectual Property in the Products, including all Smileyscope VR Software, Documentation and any improvements or modifications created or developed by the Service Provider or, unless agreed to the contrary in any separate agreement between the parties including any research and development agreement, the Purchaser. Except as expressly stated herein, no rights or licenses are granted by Service Provider, by implication, estoppel or otherwise.
5.2 The Purchaser acknowledges that the Service Provider (or its associated entities or persons) owns all Intellectual Property created by the Service Provider in connection with the Services unless agreed to in writing.
5.3 The Service Provider grants the Purchaser a non-exclusive, non-transferable licence to use the Smileyscope VR Software, including software components developed by the Service Provider and comprised in the Products, solely for use with the hardware components of the Product, in accordance with any the Documentation, manuals and instructions for the duration of the Term and in any event subject to Service Provider’s standard End User License Agreement therefor (“EULA”), which Purchaser hereby agrees to on its own behalf and on behalf of any of its personnel using the Products.
5.4 The Service Provider grants the Purchaser a non-exclusive, non-transferable licence to reproduce, copy and use the Documentation solely in connection with the use of Products in accordance with these Terms and Conditions and the EULA.
5.5 The Service Provider grants the Purchaser a non-exclusive, non-transferable licence to reproduce, copy and use the reports created by the Service Provider for the Purchaser in connection with the Services.
5.6 The obligations accepted by both parties under this clause 5 survive termination or expiry of these Terms and Conditions.
6.1 Either Party may terminate these Terms and Conditions immediately by notice to the other party if:
(a) the other Party commits a material breach of any of its obligations under these Terms and Conditions and does not remedy that breach within 14 days of receipt of a notice from the non-defaulting Party specifying the breach and requiring the breach to be remedied; or
(b) an Insolvency Event occurs in relation to the other Party;
6.2 Upon termination or expiration of these Terms and Conditions, the Service Provider will be entitled to payment of all outstanding Fees for Products provided and Services completed and not already paid by the Purchaser.
6.3 Termination of these Terms and Conditions will be without prejudice to the rights of the Parties in respect of any previous breach of any of the provisions of these Terms and Conditions.
7.1 Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a Party under these Terms and Conditions:
(a) must be in legible writing and in English addressed as shown below:
(1) if to the Service Provider:
Address: 1/333 Exhibition Street, Melbourne VIC Australia 3000
Attention: Jonathan Egudo
(2) if to the Purchaser, to the address set out in the details in the Order Form; or
(3) to the address last notified to the sender by any Party by notice.
8.1 Relationship between the Parties
Nothing in these Terms and Conditions:
(a) may be deemed to constitute an employment relationship, a partnership, joint venture, agency or other legal relationship between the Purchaser and the Service Provider other than that of independent contractors; or
(b) authorises either Party to waive, undertake or incur any obligation for which the other Party may be responsible or to incur any liability on behalf of the other Party.
8.2 Confidential Information
(a) A party (“the recipient”) must not, without the prior written approval of the other party (“the discloser”), make public or divulge either directly or indirectly to any person any Confidential Information of the discloser which it or they may acquire or come into possession of or become aware of in connection with these Terms and Conditions. The recipient shall not use any such Confidential Information of discloser except for purposes of these Terms and Conditions.
(b) The recipient may disclose Confidential Information to its directors, officers, employees, consultants and advisers who have a need to know the Confidential Information and are subject to obligations to protect the Confidential Information no less strict than those contained herein for the purpose of the recipient exercising its rights under and/or performing these Terms and Conditions.
(c) The recipient must use its best endeavours to ensure that any person to whom it discloses Confidential Information under these Terms and Conditions does not disclose the discloser’s Confidential Information.
(d) This clause 8.2 does not apply where Confidential Information:
(1) is or becomes public knowledge (other than as a result of a breach of these Terms and Conditions); or
(2) is required to be disclosed to a person or a court as required by law, provided the recipient shall provide prior written notice thereof to the discloser to the extent legally permissible; or
(3) is already in the possession of recipient at the time or receipt or disclosure from the discloser; or
(4) is independently developed by the recipient without the use of or reference to the Confidential Information of the discloser.
8.3 All express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms and Conditions or its subject matter that are not expressly contained in these Terms and Conditions (or the Order Form or EULA) are hereby disclaimed and excluded from these Terms and Conditions or its subject matter to the maximum extent permitted by law (including without limitation all implied warranties of merchantability, 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 8.3 you acknowledge that the Service Provider cannot and does not warrant that access to Service Provider’s Products and Services will be continuous and fault free, that any defect will be corrected within a specific time frame, or that any Product, Service or information from Service Provider is on time, accurate, reliable, secure, virus free or without defect; and
8.4 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.
8.5 If any guarantee, warranty, term or condition is implied or imposed in relation to this agreement under applicable law 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:
(a) 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 in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
8.6 Limitation of liability
Except as otherwise required by law, the service provider will not be liable for any special, indirect, consequential or incidental loss or damage, whether in contract, tort (including in negligence), in equity, under statute, or on any other basis (b) the service provider’s maximum total liability to the purchaser in respect of any and all loss suffered or incurred by the purchaser from or in connection with these terms and conditions or its subject matter is limited to the total fees paid under these terms and conditions.
(a) The Purchaser agrees to indemnify, defend and hold harmless the Service Provider for any Loss suffered or incurred by the Service Provider in connection with Purchaser’s breach or negligence or the use of the Products or Services under these Terms and Conditions. Purchaser is solely responsible for the quality of medical services provided.
(b) Clause 8.7(a) does not apply to the extent that the Loss arises out of the Service Provider’s gross negligence or unlawful conduct.
If the whole or any part of a provision of these Terms and Conditions is void, unenforceable or illegal it is severed. The remainder of these Terms and Conditions continue to have full force and effect.
8.10 Governing law and jurisdiction
These Terms and Conditions are governed by the laws of the State of Victoria without respect to its conflict of laws provisions. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of the Victoria and the courts of appeal from them.
(a) Waiver of any right, power, authority, discretion or remedy arising on a breach of these Terms and Conditions must be in writing and signed by the Party granting the waiver.
(b) 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 and no delay or failure to exercise any right, remedy or provision herein shall constitute a waiver thereof.
(c) This clause 8.1110 may not itself be waived except in writing.
8.12 Assignment and subcontracting
(a) The Service Provider may assign, without consent, their rights under these Terms and Conditions (or these Terms and Conditions as a whole) to a third party as part of the merger, acquisition, reorganisation or sale of the whole or a substantial part of Service Provider’s business. The Purchaser must not assign its rights under these Terms and Conditions (or these Terms and Conditions as a whole) without the prior written consent of the Service Provider.
(b) The Service Provider may sub-contract for the performance of any part of its obligations under these Terms and Conditions.
8.13 Entire agreement
These Terms and Conditions (including the Order Form and EULA) supersede all previous agreements in respect of its subject matter and contains the entire agreement between the Parties with respect to such subject matter.
Commencement Date means the date Service Provider delivers the Products to Purchaser, with the goal of meeting any target dates so specified in the Order Form.
Confidential Information means, in relation to a party, all information of a confidential or proprietary nature relating to that party or its business which by its nature is confidential, whether verbal, written or recorded by electronic means, including these Terms and Conditions, and specifically includes technical information (including, in the case of the Service Provider, all technical information about the Products), financial information, marketing plans, business plans, trade secrets or information about suppliers or customers of a party.
Documentation means technical and operational documentation (if any) supplied by the Service Provider to the Purchaser in respect of the Products, as amended by the Service Provider from time to time.
Fees means the fees and other charges payable by the Purchaser to the Service Provider for the Services as detailed in the Order Form to these Terms and Conditions.
Insolvency Event occurs where either party:
(a) ceases or takes steps to cease to conduct its business in the normal manner;
(b) enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(c) is unable to pay its debts when they are due or is deemed insolvent;
(d) has a liquidator or provisional liquidator appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party, except as part of a reconstruction whilst solvent; or
(e) has an order made or a resolution passed for its winding up.
Intellectual Property means, without limitation, all inventions, improvements, discoveries, developments, methods, techniques, processes, frameworks, designs, compositions, works, concepts, software, programs, codes and ideas (whether or not patentable or copyrightable or constituting trade secrets or know-how) conceived, made, created, developed or reduced and confidential information, together with the right to apply for registration of any of the foregoing, as well as patents and copyrights.
Interest Rate means an interest rate of 10%, or if lower, the highest rate permissible under applicable law.
Limited Warranty means the Smileyscope warranty policy as provided on the Smileyscope website.
Loss means loss, liability, cost, expense or damage of any kind (including liability to a third party).
Parties mean Purchaser and Service Provider, their respective successors and permitted assigns and Party means either one of them.
Privacy and Personal Information as defined in the Privacy Act 1988 (Cth).
Products means the Smileyscope VR Hardware and Smileyscope VR Software.
Services means the provision of the summary reports and onsite presentations, training and demonstrations, or other Product-related services, to the extent any of the foregoing are provided by Service Provider to Purchaser.
Smileyscope VR Hardware means the Google Pixel Daydream VR Headsets and Pixel Phones, as updated or replaced from time to time.
Smileyscope VR Software means the customised Android user interface, the Smileyscope Virtual Reality applications and includes the animated Virtual Reality Content for the Smileyscope Virtual Reality applications provided under these Terms and Conditions.
Term means the Initial Term plus any renewal term(s), unless and until earlier terminated in accordance with this Terms and Conditions.
Virtual Reality Content means animated virtual reality content as developed and updated by the Service Provider from time to time used in conjunction with the Smileyscope VR Software.