Please read these Terms and Conditions carefully as they comprise your legal rights, remedies and obligations in relation to your use of the Smilo.ai website and Smilo.ai Applications and all associated information services (collectively, “Smilo.ai Applications”). By accessing or using the Smilo.ai Applications, you agree to comply with and be bound by these Terms and Conditions.
These Terms and Conditions constitute a legally binding agreement (“Agreement”) between you, the User, and Oral Tech AI Pty Ltd (“us” or “Smilo.ai“) as the owner of the Smilo.ai Applications.
NOTE: If you are under the age of eighteen (18) (or below the age at which persons may enter into legal binding contract in your country of use) your parent or guardian must read these terms and conditions and give their consent to be bound by these Terms and Conditions.
Part 1 Definitions and interpretation
In these Terms and Conditions:
Adult has the meaning given to that term in clause 3.1;
Business Day means Monday to Friday, excluding official public holidays, in Brisbane, Queensland;
Business Hours has the meaning given to that term in clause 1.1;
Court includes any tribunal established under statute;
Dispute has the meaning given to that term in clause 23.1;
Dispute Notice has the meaning given to that term in clause 23.1;
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 11.1(a);
Intellectual Property Rights means all intellectual property rights, including but not limited
- patents, copyright, designs and trade marks whether registered or not, and any right to have Confidential Information kept confidential, and all other existing or future intellectual property rights in material or works; and
- any Smilo.ai Applications or right to apply for registration of any of the rights referred to in paragraph (a) of this definition;
Licence Agreement means the any separate agreement entered into by you to govern your use of the Smilo.ai Applications, including but not limited to, any agreement provided through the Apple App Store or Google Play Store.
Minor has the meaning given to that term in clause 3.1;
Notification Email Address means the email address(es) the User used to register for its Smilo Account or otherwise sign up to use the Smilo Applications. It is the User’s responsibility to keep its email address(es) valid and current so that Smilo.ai are able to send notices, statements, and other information to the User.
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 Userʼs state or territory of residence.
Smilo.ai means Oral Tech AI Pty Ltd ACN 638 265 648 and any associated entities of that company, and each of them severally, and their related bodies corporate, associates and affiliates (Associates).
Smilo.ai Account has the meaning given to that term in clause 5.1;
Smilo.ai website means www.smilo.ai;
Supply has the same meaning as in the GST Act;
System means a single device owned and controlled by the User;
Tax Invoice has the same meaning as in the GST Act;
Terms and Conditions means these Smilo.ai Terms and Conditions of Use;
the Indemnified has the meaning given to that term in clause 10.10;
Third Party Services has the meaning given to that term in clause 10.3;
Upgraded Version means an enhancement, improvement or modification to the Smilo.ai Applications;
Us, We and Our means Smilo.ai;
User means any person who, subject to these Terms and Conditions, accesses or downloads the Smilo.ai Applications.
User Review has the meaning given to that term in clause 6.1;
User Rating has the meaning given to that term in clause 6.1; and
User Updates has the meaning given to that term in clause 7.1;
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural, and the converse also applies. A gender includes all genders.
(b) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(c) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(d) A reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to, these Terms and Conditions.
(e) A reference to an agreement or document (including a reference to these Terms and Conditions) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by these Terms and Conditions or that other agreement or document.
(f) A reference to writing includes a facsimile transmission, electronic mail and any means of reproducing words, figures, drawings or symbols in a visible and tangible form.
(g) A reference to a party to these Terms and Conditions or another agreement or document includes the partyʼs successors, permitted substitutes and permitted assigns (and, where applicable, the partyʼs legal personal representatives).
(h) A reference to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(i) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(j) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind.
(k) A reference to dollars and $ is to Australian currency.
(l) A reference to a right or obligation of any two or more people comprising a single party confers that right, or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that party is a reference to each of those people separately (so that, for example, a representation or warranty by that party is given by each of them separately).
(m) A reference to you or your is a reference to the User (from time to time).
(n) All references to time are to Queensland, Brisbane time.
(o) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.
(p) Nothing in these Terms and Conditions is to be interpreted against a party solely on the ground that the party put forward these Terms and Conditions or a relevant part of it.
(q) If anything is required to be (or may be) done on or by a day that is not a Business Day, it may be done instead on the next Business Day.
(r) A reference to an item or thing includes the whole and any part of it.
Part 2 Background
A. Smilo.ai hosts the Smilo.ai Applications.
B. The Smilo.ai Applications provide oral health awareness through the provision of information and the ability for users to upload images of their teeth, gums and other oral structures. The Smilo.ai Applications may then use artificial intelligence and machine learning to assess the user images and provide guidance on seeking the services of a Dentist or other Registered Health Professional.
C. You wish to use the Smilo.ai Applications.
D. Smilo.ai allows you to use the Smilo.ai Applications subject to these Terms and Conditions and any associated Licence Agreement.
Part 3 Terms and Conditions
3 Use of Smilo.ai Applications
3.1 The User must be at least 18 years of age or the other age at which persons may enter into legally binding contracts in their country of use (“Adults”) to access and use the Smilo.ai Applications. By accessing or using the Smilo.ai Applications the User represents and warrants that they are an Adult. Alternatively, for Users who are less than 18 years of age (or the other age at which persons may enter into legally binding contracts in their country of use)(“Minors”), their parent or legal guardian must read these Terms and Conditions and, by submitting the online form, consent to and acknowledge and agree to these Terms and Conditions on behalf of the Minor User. These Terms and Conditions will apply to the consenting parent or legal guardian of the Minor User. The parents or legal guardians of Minor Users must ensure they supervise the Minor Userʼs use of the Smilo.ai Applications and Minor Users should not use the Smilo.ai Applications without such supervision.
3.2 By accessing and using the Smilo.ai Applications, and in so doing indicating their agreement to these Terms and Conditions, Smilo.ai grants to the User and the User accepts a non exclusive, non-transferable licence to use the Smilo.ai Applications on the System in accordance with these Terms and Conditions.
3.3 The Smilo.ai Applications must only be Used on one device at a time on the System.
3.4 The Smilo ai Applications must only be Used for personal use and may not be Used for commercial, profit, or revenue-generating activities unless otherwise expressly agreed to by us in writing.
3.5 Installation of the Smilo.ai Applications on a server or for use by or through other devices connected to a server over an internal or external network and commercial hosting are expressly prohibited.
3.6 The User is solely responsible for compliance with any and all laws, rules, regulations, and taxation obligations that may apply to its use of the Smilo.ai Applications.
3.7 Copyright in all content contained on the Smilo.ai Applications, including but not limited to text, drawings, photographs and page layout, subsists under, and is protected by, the Copyright Act 1968 (Cth) and international copyright laws and, unless stated otherwise, is owned by Smilo.ai or used by Smilo.ai under licence.
4 Userʼs rights and obligations
4.1 The User is entitled to use or access the Smilo.ai Applications in accordance with these Terms and Conditions and the provisions of any associated Licence Agreement.
4.2 If the Userʼs dental practice is a customer of Smilo.ai, the User may choose to interact and share their Personal Information with their dental practice through the Application at their discretion. If the Userʼs dental practice later ceases to be a customer of Smilo.ai the User will be notified through the Smilo.ai Applications and is still free to use and/or access the Smilo.ai Applications at its discretion.
4.3 In connection with their use of the Smilo.ai Applications, the User will not and will not assist or enable others to:
(a) breach or circumvent any applicable laws or regulations, agreements with third- parties, third-party rights, or our Terms and Conditions, Licence Agreement (if applicable), or associated documents;
(b) use the Smilo.ai Applications or its content for any commercial or other purposes that are not expressly permitted by these Terms and Conditions or in a manner that falsely implies Smilo.aiʼs endorsement, partnership or otherwise misleads others as to your affiliation with Smilo.ai;
(c) in any form or by any means copy, adapt, reproduce (other than for the purpose of viewing the Smilo.ai Applications on your browser), store, modify, distribute, print, upload, display, perform, remove any credits or publish, post or frame within another website or Smilo.ai Applications, or create derivative works from any part of the Smilo.ai Applications or commercialise any information obtained from any part of the Smilo.ai Applications without Smilo.aiʼs prior written permission or, in the case of third party material, from the owner of the Intellectual Property Rights in that material;
(d) copy, transmit, distribute, reproduce, licence, alter, adapt or modify the whole or any part of the Smilo.ai Applications in any way whatsoever;
(e) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Smilo.ai Applications;
(g) Terms and Conditions or that otherwise violates the privacy rights of other users or third parties;
(h) use the Smilo.ai Applications in connection with the distribution of unsolicited commercial messages (“spam”);
(i) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behaviour;
(j) misuse or abuse any features of the Smilo.ai Applications as determined by us in our sole discretion;
(k) use or display the Smilo.ai name, any Smilo.ai trademark, logo or other proprietary information without Smilo.aiʼs express written consent;
(l) dilute, tarnish or otherwise harm the Smilo.ai brand in any way, including through unauthorised use of Smilo.ai Applications content, registering and/or using Smilo.ai or derivative terms in domain names, trade names, trademarks or other source identifiers, or register and/or use domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Smilo.ai domains, trademarks, taglines, promotional campaigns or content;
(m) use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from, or otherwise interact with, the Smilo.ai Applications for any purpose;
(n) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Smilo.ai or any of its providers or any other third party to protect the Smilo.ai Applications and promote its security;
(o) take any action that damages, disables, overburdens, impairs, compromises or adversely affects, or could damage, disable, overburden, impair, compromise or adversely affect the performance or proper functioning of the Smilo.ai Applications; or
(p) export, re-export, import, or transfer the Smilo.ai Applications except as authorised by the laws of Queensland, Australia.
4.4 Users must keep any user code and password private and confidential and must not allow anyone else to access the Smilo.ai Applications using their user code and password.
5 Account registration
5.1 Smilo.ai may require that the User register an account (“Smilo.ai Account”) to access and use certain features of the Smilo.ai Applications. If the User is registering a Smilo.ai Account for a company or other legal entity, the User 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 User must provide accurate, current and complete information during the registration process and keep their Smilo.ai Account information up-to-date at all times.
5.3 The User may not register more than one (1) Smilo.ai Account unless Smilo.ai authorises them to do so. The User may not assign or otherwise transfer their Smilo.ai Account to another person or entity.
5.4 The User is responsible for maintaining the confidentiality and security of their Smilo.ai Account credentials and may not disclose their credentials to any third party. The User must immediately notify Smilo.ai if they know or have any reason to suspect that their credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of their Smilo.ai Account.
5.5 The User is liable for any and all activities conducted through their Smilo.ai Account.
6 Ratings and reviews
6.1 The User, and other users of the Smilo.ai Applications, may upload a review (“User Review”) and submit a star or numerical rating (“User Rating”) about the Smilo.ai Applications and Smilo.ai.
6.2 User Ratings or User Reviews reflect the opinions of individual users and do not reflect Smilo.aiʼs opinion.
6.3 User Ratings and User Reviews will not necessarily be verified by Smilo.ai for accuracy and may be incorrect or misleading.
6.4 User Ratings and User Reviews uploaded by the User must be accurate and may not contain any offensive or defamatory language.
6.5 User Ratings and User Reviews must not be used in any way to coerce Smilo.ai or any third party service provider referred through the Smilo.ai Applications to provide any reimbursement, discount, favour or any other action not otherwise provided for in these Terms and Conditions.
6.6 Smilo.ai reserves the right to remove any User Ratings or User Reviews which are in breach of these Terms and Conditions.
6.7 Subject to its legal obligations with respect to privacy, any material, information or testimonials submitted to Smilo.ai and posted on the Smilo.ai Application will be considered as having been voluntarily submitted for use by Smilo.ai and as non- confidential and non proprietary information and Smilo.ai is free to use such information on the Smilo.ai Application and otherwise at its sole discretion, whether for commercial or non-commercial purposes and without liability or compensation to any person or entity.
7 Subscriptions and email notifications
7.1 As part of the optional subscriber services, the User can choose to receive update emails from Smilo.ai (User Updates).
7.2 If the User chooses to receive User Updates then Smilo.ai will generate User Updates by sending emails to the Userʼs nominated email address and the User acknowledges and consents to receipt of these User Updates.
7.3 The User may choose to stop receiving User Updates at any time by following the instructions in the User Update or on the Smilo.ai Applications.
8 Updates and new releases
8.1 Smilo.ai is not required to provide software updates or new releases unless specified under these Terms and Conditions.
8.2 If the Smilo.ai Applications requires an upgrade or significant modifications to be made on it, Smilo.ai shall develop an Upgraded Version and notify the User of the release of any Upgraded Version.
8.3 The User should obtain an Upgraded Version of the Smilo.ai Applications as soon as practicable following its release, and arrange for it to be installed on the System.
8.4 Upgraded Versions of the Smilo.ai Applications will be provided at no extra cost.
8.5 The User acknowledges that any support will cease in respect of superseded versions of the Smilo.ai Applications 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.
8.6 Smilo.ai is not responsible for the Userʼs inability to use the Smilo.ai Applications if an Upgraded Version is not installed by the User on the System.
9 User acknowledgements
9.1 To the extent permitted by law, the User acknowledges that their use of the Smilo.ai Applications is completely voluntary and they use the Smilo.ai Applications at their sole risk.
9.2 The User acknowledges that Smilo.ai does not warrant that the Smilo.ai Application is free from all known viruses, however it has used commercially reasonable efforts to check for the most commonly known viruses prior to issue of the Smilo.ai Applications to the User. The User is solely responsible for virus scanning the Smilo.ai Applications.
9.3 Smilo.ai does not endorse the content of advertisements appearing on the Smilo.ai Application and has no liability in respect of those advertisements.
9.4 Information relating to Registered Health Professionals who may accept referrals from you is provided by those Registered Health Professionals and Smilo.ai accepts no liability in respect of any information which may be inaccurate or out of date.
9.5 The User acknowledges that software in general is not error-free and agrees that the existence of errors does not constitute a breach of these Terms and Conditions.
9.6 The User acknowledges that any health-related information, including the results of any assessments which include but are not limited to the Oral Health Rating and Design My Smile, provided on the Smilo.ai Application:
(a) is provided for educational and awareness purposes only;
(b) relies on them strictly following the instructions for using the Smilo.ai App, including the requirements and recommended process and technique for taking and uploading images to the Smilo.ai App and the minimum requirements for the device they use to take those images and the lighting available where they take those images;
(c) does not constitute professional advice and should not be relied upon as such;
(d) is not intended to constitute a comprehensive guide concerning all aspects of the dental/oral health issue, disease, therapy, product or treatment described;
(e) should not be considered a substitute for the advice of a Registered Health Professional, any services or information produced by medical or scientific measurement devices, or used to diagnose, treat, monitor, prevent or cure any medical condition and it should not be used for therapeutic purposes;
(f) as far as it relates to a therapy, service, product or treatment, does not in any way endorse or support such therapy, service, product or treatment and is not intended to replace advice from a Dentist or other Registered Health Professional, including as to whether the particular therapy, service, product or treatment described in the Smilo.ai Applications is suitable in their circumstances;
(g) is provided solely on the basis that the User will be responsible for making their own assessment of the health-related information presented.
9.7 The User acknowledges that:
(a) the Smilo.ai Applications can only detect dental/oral health issues that are capable of being detected using the images and information that they have provided;
(b) some issues may only be detected with x-ray and/or thorough physical examination by a dentist or other registered health professional;
(c) they are advised, through a Registered Health Professional, to verify the quality, accuracy, context, currency, completeness and suitability of any health-related information provided on the Smilo.ai Application;
(d) they must exercise their own judgement prior to relying on any health-related information provided on the Smilo.ai Application; and
(e) should they have connected with their Registered Health Professional through the Smilo.ai Application and not have been contacted by their Registered Health Professional within seven days of having obtained an Oral Health Rating using the Smilo.ai Application, they will contact their Registered Health Professional directly.
9.8 The User acknowledges that Smilo.ai has no obligation to monitor the access to or use of, or disable access to, the Smilo.ai Applications by any user, but has the right to do so in order to:
(a) operate, secure and improve the Smilo.ai Applications (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes);
(b) ensure compliance with these Terms and Conditions;
(c) comply with applicable laws or the order or requirement of a court, law enforcement or other administrative agency or government body;
(d) respond to content uploaded by others that Smilo.ai determines is harmful or objectionable; or
(e) as otherwise set forth in these Terms and Conditions.
9.9 The User 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 Smilo.ai Applications.
9.10 The User 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 these Terms and Conditions.
10 Smilo.ai – Disclaimer, warranty, indemnity and limitation of liability
10.1 Smilo.ai makes no warranty regarding the accuracy and completeness of any statistics, parameters, data or information monitored and/or displayed through the Smilo.ai Application, which include but are not limited to the Oral Health Rating and Design My Smile. Additionally, Smilo.ai makes no warranty that the Smilo.ai Services will meet your requirements and/or any medical or regulatory standards or be available on an uninterrupted, secure, or error-free basis.
10.2 If the User discovers a material error which substantially affects the Userʼs use of the Smilo.ai Applications and notifies Smilo.ai of the error during the term, Smilo.ai may at its sole discretion, correct by patch or new release (at its option) that part of the Smilo.ai Applications which does not so comply provided that such non-compliance has not been caused by:
(a) any modification, variation or addition to the Smilo.ai Applications not performed by Smilo.ai; or
(b) the Userʼs incorrect use, abuse or corruption of the Smilo.ai Applications or by use of the Smilo.ai Applications with other software or on equipment with which it is not compatible.
10.3 The Smilo.ai Applications may contain links to third-party websites or resources, including dental practices (“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. Notwithstanding the foregoing, where you have been referred to the Smilo.ai Applications by your dental practice which is a customer of Smilo.ai, you will not see links to Third-Party Services of competing dental practices through the Smilo.ai Applications.
10.4 Smilo.ai may restrict the availability of the Smilo.ai Applications or certain features thereof, if this is necessary in view of capacity limits, the security or integrity of its servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Smilo.ai Applications.
10.5 The Smilo.ai Applications and its content is provided “as is”, without warranty of any kind, either express or implied except to the extent required by law. The User agrees that they have had whatever opportunity they deem necessary to investigate the information provided on the Smilo.ai Applications and any associated laws that may be applicable to the Userʼs use of the Smilo.ai Applications.
10.6 If you are a Consumer, as that term is defined under Schedule 2 of the Competition and Consumer Act 2010 (Cth), guarantees (Statutory Guarantee) may apply to the Smilo,ai Applications that cannot be excluded under the Australia Consumer Law. If the Smilo.ai Application fails to meet any Statutory Guarantee, Smilo,ai’s liability to you for failure to meet such Statutory Demand is limited to, at its discretion, the re-supply of the services or the payment of the cost of re-supplying the services.
10.7 To the extent permitted by law, Smilo.ai accepts no liability or responsibility for the actions or omissions of any users of the Smilo.ai Application.
10.8 Smilo.ai is not an agent for any of the Registered Health Professionals listed on this Smilo.ai Application and Smilo.ai has no responsibility for and no liability whatsoever in respect of the conduct of an appointment by the Registered Health Professionals, reviewing or fulfilment of any request for prescription, timing of an appointment or the provision of a prescription, attendance at an appointment or quality of service provided by a Registered Health Professionals. Smilo.ai cannot ensure that Registered Health Practitioners will meet all timeframes for responding to service requests. If your matter is urgent you should confirm any appointment requests directly with the Registered Health Professional, and if necessary seek urgent medical or hospital attention.
10.9 Subject to clause10.1 and to the extent permitted by the applicable law, Smilo.ai disclaims all other warranties with respect to the Smilo.ai Applications and the services provided by Smilo.ai under these Terms and Conditions, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
10.10 To the extent permitted by law, neither Smilo.ai nor its directors, officers, employees, contractors, agents or representatives, nor Registered Health Professionals listed on the Smilo.ai Application and any other party involved in creating, producing, or delivering the Smilo.ai Application or its content (jointly and severally the “Indemnified”) will be liable, including 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 Userʼs access to, use of or inability to access or use the Smilo.ai Applications including, but not limited to, downloading any information and materials in or from the Smilo.ai Applications; or
(c) any inaccuracy, unavailability or performance failure and/or losses arising out of, or in connection with, any external third party services upon which the Smilo.ai Application relies (including without limitation failures related to cellular, internet or bluetooth connection of third party devices or providers) and/or generally from causes beyond Smilo.aiʼs reasonable control, including, but not limited to, internet failure, network or computer equipment failures, electrical power failures, or acts of providers of third party services.
(d) any communications interactions or meetings with other persons with whom the User communicates, interacts or meets with as a result of their use of the Smilo.ai Applications, 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.
10.11 The User 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 Userʼs use of the Smilo.ai Applications in breach of or contrary to these Terms and Conditions or the instructions provided within the Smilo.ai Application, the Userʼs negligent or unlawful acts, any information that the User provides via the Smilo.ai Applications or any damage that the User may cause to the Smilo.ai Applications. This indemnification includes, without limitation, liability relating to copyright infringement, defamation, invasion of privacy, trade mark infringement and contraventions of the Competition and Consumer Act 2010 (Cth).
10.12 In addition, in any event and notwithstanding anything herein to the contrary including the foregoing, to the maximum extent permitted by law, Smilo.aiʼs maximum total aggregate liability under these terms, whether based on warranty, contract, tort (including negligence), product liability or otherwise, shall not exceed, in the aggregate, $100.
10.13 The above limitation of liability does not affect Smilo.aiʼs liability, to the extent that it cannot be excluded or limited by law.
10.14 The disclaimers set out in this clause 10 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) or other applicable laws which cannot be excluded by law.
11 Goods and services tax
11.1 If any Supply made under these Terms and Conditions is a taxable Supply, then:
(a) If GST is payable in respect of any supply made by a supplier under these Terms and Conditions (‘GST amount’), the recipient will pay to the supplier an amount equal to the GST payable on the supply.
(b) Subject to clause 11.1(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 these Terms and Conditions.
(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 11.1(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: 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
(e) If the payment or reimbursement is subject to GST, an amount equal to that GST If an adjustment event occurs in relation to a taxable supply under this contract: The supplier must provide an adjustment note to the recipient within 7 days of becoming aware of the adjustment; and
(f) Any payment necessary to give effect to the adjustment must be made within 7 days after the date of receipt of the adjustment note.
12 Intellectual property rights
12.1 The User acknowledges that any and all of the Intellectual Property Rights subsisting in or used in connection with the Smilo.ai Applications, 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.
13 Confidential and Personal Information
13.1 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 User relating to the Smilo.ai Applications is confidential. The User agrees that it must use the same solely in accordance with the provisions of these Terms and Conditions and that it must not at any time during or after expiry or termination of these Terms and Conditions, disclose the same, whether directly or indirectly to any third party without Smilo.aiʼs prior written consent.
13.2 This clause does not prevent the disclosure or use by the User of any information which is or after the date of these Terms and Conditions, through no fault of the User, becomes public knowledge or to the extent required by law.
13.3 If, in using the Smilo.ai Applications, the User discloses any practice or business information, financial information or patient 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 these Terms and Conditions, through no fault of Smilo.ai, becomes public knowledge or to the extent permitted by law.
14.1 In addition to other provisions for termination in these Terms and Conditions, Smilo.ai may by notice in writing to the User terminate the Userʼs access to or use of the Smilo.ai Applications, in whole or at Smilo.aiʼs sole option, in any of the following circumstances:
(a) if the User is in breach of these Terms and Conditions or as 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 Smilo.ai; or
(b) if the User enters into any form of insolvency administration, including liquidation, bankruptcy, receivership, voluntary administration or otherwise; or
(c) if Smilo.ai elects, at its sole discretion, to terminate these Terms and Conditions and gives the User 30 days notice to that effect.
14.2 Upon termination, the User 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 Smilo.ai Applications, these Terms and Conditions or otherwise.
14.3 Termination is subject to any rights and remedies Smilo.ai may have under these Terms and Conditions or at law.
14.4 If Smilo.ai terminates these Terms and Conditions and the User is not at fault, Smilo.ai will refund any licence fee already paid to it by the Userfor the Term on a pro- rata basis.
15 Smilo.aiʼs rights
15.1 Any express statement of a right of Smilo.ai under these Terms and Conditions is without prejudice to any other right of Smilo.ai expressly stated in these Terms and Conditions or existing at law.
16 Electronic agreement
16.1 Smilo.ai and the User 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 User 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 Survival of agreement
17.1 The covenants, conditions and provisions of these Terms and Conditions which are capable of having effect after the expiration of these Terms and Conditions shall remain in full force and effect following the expiration of these Terms and Conditions.
18.1 Smilo.ai may assign or transfer all or part of its rights and obligations under these Terms and Conditions to any third party without notice to the User.
18.2 The User must not assign or otherwise transfer all or part of its rights or obligations under these Terms and Conditions without the prior written consent of Smilo.ai.
19.1 Failure or neglect by either party to enforce at any time any of the provisions of these Terms and Conditions is not to be construed as a waiver of that partyʼs rights under these Terms and Conditions nor does it in any way affect the validity of the whole or any part of these Terms and Conditions or prejudice that partyʼs rights to take subsequent action.
20.1 In the event that any of the terms, conditions or provisions contained in these Terms and Conditions 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 Governing law and jurisdiction
21.1 These Terms and Conditions 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 Any notice under these Terms and Conditions must be given in writing. Smilo.ai may provide notice to the User through its Notification Email Address or the User’s Smilo Account.
22.2 The User agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing.
22.3 Any notice to you will be deemed given upon the first business day after we send it.
22.4 The User will provide notice to Smilo.ai by post to PO Box 568, Sandgate QLD 4017. The user’s notices to Smilo.ai will be deemed given upon receipt.
23 Dispute resolution
23.1 If a dispute arises between the parties regarding any matter relating to these Terms and Conditions (“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 best 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 The parties involved in a Dispute will bear their own costs incurred pursuant to clause 23.1.
23.3 Despite the dispute resolution procedures above, a party to these Terms and Conditions may seek urgent injunctive relief from an appropriate Court.