In this Agreement:
Agreement means this Interface Licence Agreement;
Application means the Smilo.AI application;
Business Day means Monday to Friday, excluding official public holidays, in Brisbane, Queensland;
Commencement Date means the date set out at Item 1 of the Reference Schedule;
Completion Date means the date set out at Item 2 of the Reference Schedule;
Court includes any tribunal established under statute;
Data Breach means an incident in which:
Dispute has the meaning given to that term in clause 25.1;
Dispute Notice has the meaning given to that term in clause 25.1;
GST GST has the same meaning as in the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 as amended;
GST Amount has the meaning given to that term in clause 12.1(a);
Initial Term has the meaning given in clause 5.2;
Intellectual Property Rights Rights means all intellectual property rights, including but not limited to:
Interface means the Smilo.AI online dental practice interface, where the Licensee may access the information of its patients who are also Users of the Smilo.AI smartphone application.
Licence Fee means the licence fee set out at Item 4 of the Reference Schedule;
Licensee means the entity detailed at Item 2 of the Reference Schedule who, subject to the Terms and Conditions of this Agreement, accesses the Interface to view or download User information, pays the Licence Fee and agrees, including by electronic means, to be bound by the Terms and Conditions of this Agreement.
Licensee Updates has the meaning given to that term in clause 8.1;
Nominated Practices means the dental practices listed at Item 6 of the Reference Schedule;
Optional Extension Period means the period, if any, set out at Item 5 of the Reference Schedule;
Package means the package detailed at Item 5 of the Reference Schedule
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Registered Health Professional means a person who holds registration in a health profession with the Australian Health Practitioner Regulation Agency or such body which may replace the Australian Health Practitioner Regulation Agency as the body authorised by law to register health professionals in Australia or in the Licensee’s state or territory of residence.
Security Breach has the meaning given to it in clause 7.4;
Smilo.AI Account has the meaning given to that term in clause 7.1;
Special Conditions means the special conditions, if any, set out at clause 3.
Subsequent Term has the meaning given in clause 5.2;
Supply has the same meaning as in the GST Act;
System means any devices owned and controlled by the Licensee on which the Interface will be used and onto which Personal Information will be transferred from the Interface;
Tax Invoice has the same meaning as in the GST Act;
Term means the consecutive period of Initial Term and any Subsequent Terms;
The Indemnified has the meaning given to that term in clause 11.6;
Third Party Services has the meaning given to that term in clause 11.2;
Upgraded Version means an enhancement, improvement or modification to the Interface;
User means any person or entity using the Application; and
Writing includes typewriting, printing, lithography, photography and any other mode of representing or reproducing words in a permanent and visible form.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
A. Smilo.AI is the authorised licensor of the Interface.
B. The Licensee operates a dental practice and wishes to use the Interface as a medium to receive the oral health information of its clients who are also Users of the Application.
C. Smilo.AI has agreed to license access to the Interface, to the level of the Package, for the Licensee on the terms and conditions set out in this Agreement.
3.1 Access to the Interface is licensed, the Interface is not sold.
3.2 Smilo shall licence the Interface to the Licensee for the initial period of three (3) months from the Commencement Date until the Trial Completion Date (Initial Term). At the end of the Initial Term, the Licence shall automatically renew for successive three monthly periods (Subsequent Term), unless the Licensee notifies Smilo in writing giving 30 days' notice of the Licensee’s intention to terminate this Agreement.
3.3 The Licensee represents and warrants that it has the legal capacity and authority to enter into this Agreement.
3.4 Subject to the payment of the Licence Fee, Smilo.AI grants to the Licensee and the Licensee accepts a non-exclusive, non-transferable licence to use the Interface, to the level of the Package, on the System for the term of this Agreement in accordance with the provisions of this Agreement.
3.5 Commercial rehosting of the Interface on an alternative system is expressly prohibited, unless such use is in strict compliance with the terms and conditions of this Agreement.
3.6 The licence to use the Interface will continue for the Term.
3.7 The Licensee is solely responsible for compliance with any and all laws, rules, regulations, and taxation obligations that may apply to its use of the Interface.
4.1 The Licensee is entitled to:
4.2 In connection with its use of the Interface, the Licensee will not and will not assist or enable others to:
4.3 Licensees must, and must procure that their employees, officers, agents and contractors, keep any user code and password private and confidential and must not allow anyone else to access the Interface using its user code and password.
5.1 Smilo.AI may require that the Licensee register an account ("Smilo.AI Account") to access and use certain features of the Interface or the Application. If the Licensee is registering a Smilo.AI Account for a company or other legal entity, the Licensee represents and warrants that they have the authority to legally bind that entity to the obligations contained in, and grant Smilo.AI all permissions and licenses provided in, these Terms and Conditions.
5.2 The Licensee must provide accurate, current and complete information during the registration process and keep its Smilo.AI Account information up-to-date at all times.
5.3 The Licensee may not register more than one (1) Smilo.AI Account unless Smilo.AI authorises them to do so. The Licensee may not assign or otherwise transfer its Smilo.AI Account to another person or entity with the sole exception of a contractor engaged by the Licensee and who is directly involved in dealing with the Interface and/or any patient Personal Information legitimately accessed via the Interface in strict accordance with this Agreement. Any such contractor of the Licensee must be bound by the obligations of the Licensee pursuant to this Agreement.
5.4 The Licensee is responsible for maintaining the confidentiality and security of its Smilo.AI Account credentials and may not disclose its credentials to any third party. The Licensee must immediately notify Smilo.AI if it knows or has any reason to suspect that its credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of its Smilo.AI Account (“Security Breach”).
5.5 The Licensee is liable for any and all activities conducted through its Smilo.AI Account, except to the extent that any activities have been undertaken as a result of the:
6.1 As part of the optional subscriber services, the Licensee can choose to receive update emails from Smilo.AI (Licensee Updates).
6.2 If the Licensee chooses to receive Licensee Updates then Smilo.AI will generate Licensee Updates by sending emails to the Licensee’s nominated email address and the Licensee acknowledges and consents to receipt of these Licensee Updates.
6.3 The Licensee may choose to stop receiving Licensee Updates at any time by following the instructions in the Licensee Update or on the Interface.
7.1 Smilo.AI is not required to provide software updates or new software releases of the Interface unless specified under this Agreement.
7.2 For the avoidance of doubt, any expansion of the Package to include additional modules (eg. those tailored to orthodontics or periodontics) that are not specified in the Reference Schedule would require a variation to this Agreement and are not included as a software update or new software release simply by virtue of Smilo.AI having developed them during the Term.
7.3 If the Interface requires an upgrade or significant modifications to be made on it, Smilo.AI shall develop an Upgraded Version (including any associated software required to use the Interface) and notify the Licensee of the release of any Upgraded Version, including any different URL required to access the Upgraded Version of the Interface.
7.4 The Licensee should commence using the Upgraded Version of the Interface (including any associated software required to use the Interface) as soon as practicable following its release.
7.5 Upgraded Versions of the Interface will be provided at no extra cost.
7.6 The Licensee acknowledges that any support will cease in respect of superseded versions of the Interface within a reasonable period of release of an Upgraded Version, and in any event, will cease after 12 months of release of an Upgraded Version.
7.7 Smilo.AI is not responsible for the Licensee’s inability to use the Interface if an Upgraded Version (including any associated software required to use the Interface) is not accessed from the point it is notified to the Licensee pursuant to clause 9.3.
8.1 To the extent permitted by law, the Licensee acknowledges that its use of the Interface is completely voluntary and it uses the Interface at its sole risk.
8.2 The Licensee acknowledges that Smilo.AI does not warrant that the Interface is free from all known viruses. The Licensee is solely responsible for virus scanning the Interface and any content accessed via the Interface.
8.3 The Licensee acknowledges that information technology in general is not error-free and agrees that the existence of errors does not constitute a breach of this Agreement.
8.4 The Licensee acknowledges that any images and other information uploaded by patient users of the Application and any assessments made by the Application, including but not limited to the Application’s “Oral Health Rating” and “Design My Smile” features, and made available to the Licensee through the Interface:
8.5 The Licensee:
8.6 The Licensee acknowledges that Smilo.AI has no obligation to monitor the access to or use of, or disable access to, the Interface by the Licensee, but has the right to do so to:
8.7 The Licensee agrees to cooperate with and assist Smilo.AI in good faith, and to provide it with such information and take such actions as may be reasonably requested with respect to any investigation undertaken by Smilo.AI or its representatives regarding the use or abuse of the Interface or the Application.
8.8 The Licensee warrants that it has not relied on any representation made by Smilo.AI, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Smilo.AI, which has not been stated expressly in this Agreement.
8.9 The Licensee agrees within 14 days after the date of termination or discontinuance of this Agreement for whatever reason, it must return, destroy or delete any confidential or commercial information provided to it by Smilo.AI through this Agreement.
9.1 If the Licensee discovers a material error which substantially affects the Licensee’s use of the Interface and notifies Smilo.AI of the error during the term, Smilo.AI will use all reasonable endeavours to correct such material error. If full functionality cannot be provided within 10 Business Days then the Licensee may, in its sole discretion, terminate this Agreement by written notice.
9.2 The Interface may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Smilo.AI is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement or recommendation by Smilo.AI of such Third-Party Services. Materials and information available by using Third-Party Services is not created, controlled or approved by Smilo.AI and no responsibility is taken by Smilo.AI for the consequences or claims that may arise from viewing or using such materials or information.
9.3 The Interface and its content is provided “as is”, without warranty of any kind, either express or implied except to the extent required by law. The Licensee agrees that they have had whatever opportunity they deem necessary to investigate the information provided on the Interface and any associated laws that may be applicable to the Licensee’s use of the Interface.
9.4 Subject to clause 11.1 and to the extent permitted by the applicable law, Smilo.AI disclaims all other warranties with respect to the Interface and the services provided by Smilo.AI under this Agreement, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
9.5 To the extent permitted by law, neither Smilo.AI nor its directors, officers, employees, contractors, agents or representatives, nor any other party involved in creating, producing, or delivering the Interface or its content (jointly and severally those “Indemnified”) will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data, loss of goodwill, service interruption, computer or other technology hardware damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress in connection with, or arising out of or incidental to:
(a) these Terms and Conditions;
(b) the Licensee’s access to, use of or inability to access or use the Interface including, but not limited to, downloading any information and materials in or from the Interface; or
(c) any communications, interactions or meetings with other persons with whom the Licensee communicates, interacts or meets with as a result of its use of the Interface,
whether based on warranty, contract, tort (including, without limitation, negligence), equity, product liability or any other legal theory, and whether or not Smilo.AI has been informed of the possibility of such damage.
9.6 To the extent permitted by law, in no event will Smilo.AI’s aggregate liability arising out of or in connection with these Terms and Conditions and the Licensee’s use of the Interface including, but not limited to, from the use of or inability to use the Interface or its content, exceed the amounts you have paid or owe toward the Licence Fee in the 12-month period prior to the event giving rise to the liability.
9.7 The Licensee agrees to indemnify the Indemnified for all damages, losses, penalties, fines, expenses and costs (including legal costs) that arise out of or relate to the Licensee’s use of the Interface in breach of these Terms and Conditions, the Licensee’s negligent or unlawful acts, any information that the Licensee provides via the Interface or any damage that the Licensee may cause to the Interface. This indemnification includes, without limitation, liability relating to sole reliance by Registered Health Professionals on the Interface for patient diagnosis and treatment, copyright infringement, defamation, invasion of privacy, trademark infringement and contraventions of the Competition and Consumer Act 2010 (Cth) and Privacy Act 1988 (Cth).
9.8 The above limitation of liability does not affect any of Smilo.AI’s liability which cannot be excluded or limited by law.
9.9 The disclaimers set out in this clause 11 apply to the maximum extent permitted by law but are not intended to exclude any statutory rights set out in the Competition and Consumer Act 2010 (Cth) which cannot be excluded by law.
10.1 If any Supply made under this Agreement is a taxable Supply, then:
(a) If GST is payable in respect of any supply made by a supplier under this Agreement (‘GST amount’), the recipient will pay to the supplier an amount equal to the GST payable on the supply.
(b) Subject to clause 12.1(c), the recipient will pay the GST amount at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement.
(c) The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST Amount under clause 12.1(b).
(d) If this contract requires a party to reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
(e) The amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party is entitled; and
(f) If the payment or reimbursement is subject to GST, an amount equal to that GST
(g) If an adjustment event occurs in relation to a taxable supply under this contract:
(h) The supplier must provide an adjustment note to the recipient within 7 days of becoming aware of the adjustment; and
(i) Any payment necessary to give effect to the adjustment must be made within 7 days after the date of receipt of the adjustment note.
11.1 The Licensee acknowledges that any and all of the Intellectual Property Rights subsisting in or used in connection with the Interface, including any design, text, graphics, video, logos, icons, sound recordings and all software relating thereto and any modifications, improvements or enhancements made thereto, are and remain the sole property of Smilo.AI or such other party as may be identified in or on it.
12.1 All information, data, drawings, specifications, documentation, software listings, source or object code which Smilo.AI may have imparted and may from time to time impart to the Licensee relating to the Interface or the Application is confidential. The Licensee agrees that it must use the same solely in accordance with the provisions of this Agreement and that it must not at any time during or after expiry or termination of this Agreement, disclose the same, whether directly or indirectly to any third party without Smilo.AI’s prior written consent.
12.2 This clause does not prevent the disclosure or use by the Licensee of any information which is or after the date of this Agreement, through no fault of the Licensee, becomes public knowledge or to the extent required by law.
12.3 If, in using the Application, the Licensee discloses any practice or business information, financial information or Personal Information of a confidential nature to Smilo.AI, Smilo.AI agrees that it will keep such information confidential. This clause does not prevent the disclosure or use by Smilo.AI of any information which is or after the date of this Agreement, through no fault of Smilo.AI, becomes public knowledge or to the extent permitted by law.
13.1 Smilo.AI will only disclose User’s Personal Information to the Licensee if, and to the extent that, the relevant User has consented to such disclosure.
13.2 The Licensee must not access, download, use or transfer to the System any Personal Information of a User of the Application unless:
(a) the User is a patient of the Licensee’s dental practice;
(c) the Licensee takes all steps required by law to protect the User’s Personal Information that is disclosed to it under this Agreement from misuse and loss, and from unauthorised access, modification or disclosure;
(d) where the System uses cloud-based data storage, the Licensee ensures that such storage complies with the Privacy Act 1988 (Cth).
13.3 Each party must co-operate with any reasonable requests or directions of the other party arising directly from, or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Act.
13.4 Each party must:
(a) notify the other party immediately if it becomes aware of any suspected or actual Data Breach; and
(b) take all reasonable steps to prevent or stop the suspected or actual Data Breach to the extent to which they are able to do so.
14.1 Notwithstanding clause 5.2, either party may, with no less than 30 days’ written notice to the other, terminate this Agreement at its sole discretion and the Agreement will terminate at the completion of the Subsequent Term which falls after the 30 day notice period of this clause 16.1.
14.2 In addition to other provisions for termination in this Agreement, either party (the “Non-Defaulting Party") may by notice in writing to the other (the “Defaulting Party") terminate this Agreement immediately in any of the following circumstances:
(a) if the Defaulting Party is in breach of any term, condition or provision of this Agreement or required by applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from the Non-Defaulting Party; or
(b) to the extent it is lawful to do so, if the Defaulting Party enters into any form of insolvency administration, including liquidation, bankruptcy, receivership, voluntary administration or otherwise.
14.3 Should Smilo.AI terminate this Agreement pursuant to clause 16.2, the Licensee must immediately pay to Smilo.AI all costs and expenses, including legal and other fees incurred in relation to any default and all arrears of fees, charges or other payments arising in respect of the Interface, this Agreement or otherwise.
14.4 The Non-Defaulting Party’s termination pursuant to clause 16.2 is in addition to any other rights and remedies it may have under this Agreement or at law.
14.5 If Smilo.AI terminates this Agreement pursuant to clause 16.1, Smilo.AI will refund any Licence Fee already paid to it by the Licensee for the remainder of the Term beyond the date for termination set out in the notice provided pursuant to clause 16.1 on a pro-rata basis.
14.6 If the Licensee terminates this Agreement pursuant to clause 16.1 or clause 16.2, the Licensee will remain liable for any Fees or other costs genuinely incurred that relate to the period up until the date for termination set out in the notice provided pursuant to clause 16.1.
14.7 Following the termination of this Agreement:
(a) the Licensee will cease to have access to the Interface and all of its contents;
(b) any Personal Information of a User obtained by the Licensee through the Interface must be dealt with by the Licensee strictly in accordance with the consent provided by the User to the Licensee and all applicable laws; and
(c) Users who are patients of the Licensee will be notified through the Interface that the Licensee no longer uses the Interface but that the User may continue to use the remaining features of the Application without continuing to be linked to, or share their Personal Information with, the Licensee.
14.8 Following the termination of this Agreement:
(a) the Licensee will cease to have access to the Application and all of its contents and must delete the Application from the System and any other devices to which it has been downloaded;
(b) any Personal Information of a User obtained by the Licensee through the Application must be dealt with strictly in accordance with the consent provided by the User and all applicable laws; and
(c) Users who are patients of the Licensee will be notified through the Application that the Licensee no longer uses the Application but that the User may continue to use the remaining features of the Application without continuing to be linked to, or share their Personal Information with, the Licensee.
15.1 Any express statement of a right of Smilo.AI under this Agreement is without prejudice to any other right of Smilo.AI expressly stated in this Agreement or existing at law.
16.1 Smilo.AI and the Licensee consent to sending and receiving documents and particulars by electronic transmission pursuant to the Electronic Transactions (Queensland) Act 2001.
16.2 Smilo.AI and the Licensee consent to having their signatures on documents in electronic form or by electronic acknowledgement of acceptance (including by selecting a check box in an electronic form) and agree that such electronic signature or acknowledgement creates a binding contract pursuant to the Electronic Transactions (Queensland) Act 2001.
17.1 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration or earlier termination of the Agreement.
18.1 Smilo.AI may assign or transfer all or part of its rights and obligations under this Agreement to any third party without notice to the Licensee.
18.2 The Licensee must not assign or otherwise transfer all or part of the Interface or this Agreement without the prior written consent of Smilo.AI, which must not be unreasonably withheld or delayed.
19.1 Failure or neglect by either party to enforce at any time any of the provisions of this Agreement is not to be construed as a waiver of that party’s rights under this Agreement nor does it in any way affect the validity of the whole or any part of this Agreement or prejudice that party’s rights to take subsequent action.
20.1 In the event that any of the terms, conditions or provisions contained in this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision is, to that extent, severed from the remaining terms, conditions and provisions which continue to be valid to the fullest extent permitted by law.
21.1 This Agreement is governed by the laws of Queensland and the Commonwealth of Australia.
21.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
22.1 A notice required or authorised to be given or served upon a party pursuant to this Agreement must be in writing in the English language and shall be given by (i) delivery; (ii) electronically via the Interface; (iii) email; or (iv) by prepaid registered or express post to the address of the party specified in this Agreement or such other address as either party may specify in writing. All notices shall be effective upon receipt by the parties to which notice is given 2 Business Days after the date of dispatch, or if by electronic means, at the time of sending upon confirmation of delivery.
22.2 The provisions of this clause are in addition to any other mode of service permitted by law.
22.3 In this clause ‘notice’ includes a demand, request, consent, approval, offer and any other instrument or communication made, required or authorised to be given under or pursuant to a provision of this Agreement.
23.1 If a dispute arises between the parties regarding any matter relating to this Agreement (“Dispute”) then any party may notify the other parties in writing of the dispute (“Dispute Notice”). Within 7 days of the service of the Dispute Notice, the parties must meet in good faith and use their reasonable endeavours to resolve such Dispute to their mutual satisfaction. Should this process fail to resolve the Dispute, the parties may seek other legal recourse or determination.
23.2 Each party involved in a Dispute will bear its own costs incurred pursuant to clause 25.1.
23.3 Despite the dispute resolution procedures above, a party to this agreement may seek urgent injunctive relief from an appropriate Court.