Global Standard Terms and Conditions
The Customer appoints HITIQ to provide the Equipment, Licensed Software and Software Maintenance Services and HITIQ agrees to provide the Equipment, Licensed Software and Software Maintenance Services on the terms and conditions of this Agreement.
This Agreement commences on the Commencement Date and continues until the end of the last Equipment Term unless it is terminated earlier in accordance with the terms of this Agreement (Term).
3.1 The Customer may submit to HITIQ an Order for the Equipment from time to time.
3.2 HITIQ will accept or reject a submitted Order by notice in writing to the Customer within 14 days of receipt. If no notice is received within that time frame, the Order is deemed rejected.
3.3 HITIQ will supply to the Customer the Equipment in accordance with the accepted Order and this Agreement.
4. Manufacture of Mouthguards and delivery of Equipment
4.1 HITIQ will manufacture the number of Mouthguards specified in the accepted Order.
4.2 HITIQ will coordinate and implement intra oral scanning of each User in order to manufacture the Mouthguards.
4.3 HITIQ will ensure that the Mouthguards are manufactured and fitted for the Users under the supervision of a suitably qualified dentist or orthodontist.
4.4 HITIQ will deliver the number of Equipment specified in the accepted Order to the Delivery Address.
4.5 HITIQ will use its best endeavours to deliver the Equipment within 6 weeks of successful intra oral scanning of the Users (Delivery Date).
4.6 The Customer acknowledges and agrees that HITIQ does not guarantee delivery by the Delivery Date and no action may be taken by the Customer or Users against HITIQ if delivery is later than anticipated or desired.
4.7 The Customer must pay all costs associated with the delivery of the Equipment including courier costs, import/export duties and any other taxes (Delivery Costs).
5. Fees and payment terms
5.1 HITIQ will provide invoices to the Customer from time to time for the Fees, Delivery Costs and any other applicable taxes. The Customer must pay HITIQ the amount specified in each invoice within 30 days of the date of the invoice (Due Date).
5.2 If the Customer fails to pay the amount specified in an invoice by the Due Date, HITIQ may:
(a) charge the Customer interest on the overdue amount at the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic); and/or
(b) suspend the provision of the Licensed Software and the Software Maintenance Services.
6. Ownership of Equipment
6.1 The Customer agrees that all Equipment provided to the Customer by HITIQ is leased to the Customer and not sold. All Equipment remains the property of HITIQ at all times.
6.2 Risk in the Equipment passes to the Customer on its delivery to the Delivery Address.
7. Licensed Software
7.1 HITIQ grants to the Customer, and the Customer accepts on the terms and conditions of this Agreement, a worldwide, non-exclusive, non-transferrable, non-sublicensable, non-assignable and revocable licence to use the Licensed Software and Documentation solely for the Licensed Purpose for the Term.
7.2 The Customer must ensure that the Licensed Software is only used by the Authorised Software Users.
7.3 The Customer must procure that each Authorised Software User keeps their individual login data (Software Access Key) secure and confidential and does not permit any other person to use their Software Access Key.
7.4 The Customer may obtain a worldwide, non-exclusive, non-transferrable, non-sublicensable, non-assignable and revocable licence for Software Enhancements, on such additional terms and conditions as agreed by the parties, including as to the term of the licence for each Software Enhancement licensed to the Customer (Enhancement Term), subject always to the Enhancement Term ending at the end of the Term.
7.5 The Customer agrees to always use the latest versions and updates of the Licensed Software as provided by HITIQ.
7.6 The Customer must not, and must procure that its Personnel do not:
(a) use the Licensed Software for any purpose other than the Licensed Purpose;
(b) access the source code of the Licensed Software, or except to the extent explicitly permitted by applicable law, copy, reverse engineer, adapt, decompile, vary or modify the Licensed Software;
(c) supply, provide, sub-licence, rent or otherwise make available any Software Access Key or the Licensed Software in whole or in part, in any form, to a person who is not an Authorised Software User; or
(d) use the Licensed Software to send unsolicited electronic messages to anyone, make fraudulent or speculative enquiries or other similar activities, or transmit to or using the Licensed Software, any virus, disabling or malicious device or code, worm, Trojan, time bomb or other harmful or destructive device or code.
7.7 HITIQ will provide the Software Maintenance Services during the Term in accordance with Annexure B.
8. Use of Equipment
8.1 The Customer must:
(a) use the Equipment, and procure that its Personnel use the Equipment, only for the Licensed Purpose (and not for any other purpose);
(b) keep the Equipment in good order and repair (reasonable wear and tear excepted) and ensure the Equipment is properly operated in accordance with HITIQ's instructions and Documentation;
(c) notify HITIQ within 24 hours of it becoming aware that any Equipment has been lost, stolen, damaged or destroyed, or has become inoperable;
(d) not sell, dispose of, sub-licence or encumber the Equipment in any way (or attempt to do the same);not alter or remove any markings (or similar) on the Equipment;
(e) not make any alteration, modification or repairs (or similar) to the Equipment without the prior written consent of HITIQ; and not use the Equipment for any purposes which involve diagnosis, prevention, monitoring, treatment or alleviation of disease; diagnosis, monitoring, treatment, alleviation of or compensation for an injury; or investigation, replacement, modification or support of the anatomy or of a physiological process.
8.2 The Customer must, and must procure each User to, use the Equipment in a safe manner and in accordance with the Documentation and any other use instructions. HITIQ will not be liable to the Customer, any User or any other third party flowing from any failure of the Customer or Users to use the Equipment in a safe manner or in accordance with the Documentation or other use instructions.
8.3 To the fullest extent permitted by law, HITIQ excludes any warranties and makes no representations as to whether the Equipment and the Licensed Software will be suitable for the Customer's and each User's specific intended use of the Equipment and Licensed Software.
9. Special Conditions
9.1 The parties must comply with the special conditions (if any) set out in item 6 of the Master Agreement (Special Conditions).
9.2 To the extent of any inconsistency between these standard terms and conditions and the Special Conditions, the Special Conditions prevail.
10. Intellectual Property
10.1 The Customer acknowledges and agrees that, as between the parties, HITIQ owns all intellectual property rights in the Equipment, the Licensed Software and the Documentation.
10.2 The Customer must not, and must ensure that the Personnel do not, modify, reverse engineer or make copies or reproductions of the Equipment, the Licensed Software or the Documentation for any purpose, except with the prior written consent of HITIQ.
10.3 The Customer must not, and must ensure that the Personnel do not, apply for, register or attempt to register, or authorise or assist any third party to apply for or register, under any statute or otherwise in any country, a patent or other form of intellectual property relating to or incorporating the Equipment, the Licensed Software or the Documentation.
10.4 Notwithstanding any right or claim the parties may have had but for this Agreement, any Improvements in the Equipment, the Licensed Software and the Documentation shall be owned by the parties as tenants in common in proportion to their respective Contributions to that Improvement as agreed by the parties prior to the date of first Commercialisation of that Improvement. Any difference or disagreement between the parties in relation to this clause shall be finally determined by an independent expert in accordance with clause 10.6.
10.5 HITIQ will be solely responsible for, and entitled to all the proceeds derived from, the Commercialisation of any Improvements in the Equipment, the Licensed Software and the Documentation. The Customer must not Commercialise any Improvements in the Equipment, the Licensed Software and the Documentation without HITIQ's prior written consent.
10.6 Any dispute or difference arising between the parties in relation to clause 10.4 will be finally determined by an independent expert:
(a) agreed on by the parties and experienced in the field; or
(b) if the parties are unable to agree, appointed by the President or Acting President, in Victoria, of the Licensing Executives Society Australia and New Zealand at the shared expense of the parties.
11. User Data
11.1 grants HITIQ a non-exclusive, royalty free licence to access and use the User Data at any time during the Term and for a period of 3 years after the end of the Term for the following purposes:
(a) performing its obligations under this Agreement; and
(b) generating De-Identified Data.
11.2 The Customer grants HITIQ a non-exclusive, perpetual, royalty free licence to access, store and use the De-identified Data for the following purposes:
(a) internal research and development;
(b) updating HITIQ's databases of de-identified sensor data collected via Mouthguards;
(c) improving the performance of HITIQ's technology, products and services; and
(d) purposes related to regulatory compliance and approvals
11.3 The Customer must ensure that adequate back-up and recovery procedures are implemented and maintained to protect and preserve the User Data.
12. Defective Equipment
12.1 If the Equipment is faulty or damaged, the Customer must notify HITIQ by emailing email@example.com to report the problem as soon as the fault or damage is identified by the Customer or its Personnel. HITIQ will arrange for the Equipment to be picked up from the Customer (at no charge).
12.2 Where the Equipment is proved to be faulty and subject to clause 12.3, HITIQ will repair or replace (at HITIQ's election) the Equipment at no charge to the Customer.
12.3 HITIQ will not be liable to rectify any fault or damage to any Equipment if, in HITIQ's reasonable opinion, the fault or damage is the result of, or related to:
(a) an act or omission by the Customer, a User or a third party that is not accordance with the Documentation or other use instructions;
(b) fair wear and tear, ageing and/or excessive use of the Equipment.
13.1 Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of the other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 13.2, the Receiving Party must:
(a) keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all the Disclosing Party's Confidential Information coming into its possession or control;
(c) only use the Disclosing Party's Confidential Information to the extent necessary to perform its obligations under this Agreement; and
(d) not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.
13.2 The obligations of confidentiality under clause 13.1 do not apply to any information that is:
(a) generally available to the public (other than by reason of a breach of this Agreement);
(b) required to be disclosed by any applicable law, to comply with any court order, or the applicable rules of any financial market to which a party or its related body corporate is subject, if, to the extent practicable and as soon as reasonably possible, the Receiving Party:(i) notifies the Disclosing Party of the proposed disclosure;
(ii) consults with the Disclosing Party as to its content; and
(iii) uses reasonable efforts to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure;
(c) disclosed to the Personnel of the Receiving Party who:
(i) have a need to know the Disclosing Party's Confidential Information for the purposes of this Agreement (and only to the extent that each has a need to know); and
(ii) prior to the proposed disclosure, have been informed that the Confidential Information is confidential to the Disclosing Party, have been informed of the confidentiality obligations imposed on the Receiving Party by this Agreement in relation to that Confidential Information and have agreed to be bound by the same confidentiality obligations in relation to that Confidential Information,
provided the Receiving Party will be liable for any breach of confidentiality obligations by such Personnel as if it had committed such breach; or
(d) disclosed to the Receiving Party's professional advisors for the purposes of the Receiving Party receiving advice in relation to its obligations under this Agreement.
13.3 Subject to clause 13.4, the Receiving Party will automatically at the end of the Term return, and cause its Personnel, advisors and any other person to whom Confidential Information of the Disclosing Party has been disclosed by the Receiving Party in accordance with this Agreement to return, all records containing any such Confidential Information to the Disclosing Party or, at the election of the Disclosing Party, permanently erase the Confidential Information of the Disclosing Party from those records.
13.4 Nothing in this clause 13 will require a Receiving Party to delete or destroy any electronic back-up tapes or other electronic back-up files that have been created solely by its automatic or routine archiving and back-up procedures, to the extent created and retained in a manner consistent with its standard archiving and back-up procedures, provided that the Receiving Party continues to treat any retained electronic files as Confidential Information.
Each party must comply with their respective obligations in the Data Processing Addendum
HITIQ must provide the Customer with the training described in item 4 of the Master Agreement.
16.1 Subject to the remainder of this section 16, HITIQ is not liable to the Customer, the Users or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
(a) the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
(b) the Customer, a User or any other person was previously notified of the possibility of the loss or damage.
16.2 Subject to sections 16.4 and 16.5, the maximum aggregate liability of HITIQ to the Customer for all proven losses, damages and claims arising out of the supply and use of the Equipment and the subject matter of this Agreement and any Order, including liability for breach, in negligence or in tort or for any other common law or statutory action is limited to the total of all Fees paid by the Customer in the previous 12 month period.
16.3 Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement and any Order by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
16.4 Nothing in this Agreement or any Order excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by any applicable law that cannot be excluded, restricted or modified by agreement.
16.5 To the fullest extent permitted by law, the liability of HITIQ for a breach of a non-excludable consumer guarantee referred to in section 16.4 is limited, at HITIQ's option, to:
(a) the replacement of the Equipment or the Licensed Software or the supply of equivalent goods;
(b) the repair of the Equipment or Licensed Software;
(c) the payment of the cost of replacing the Equipment or Licensed Software or of acquiring equivalent goods; or
(d) the payment of the cost of having the Equipment or Licensed Software repaired.
17.1 The Customer indemnifies and must keep indemnified HITIQ, its officers, employees and contractors, against all liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) of any kind (Loss) that HITIQ may pay, sustain or incur as a direct or indirect result of:
(a) use of the Equipment and the Licensed Software by the Customer and any Personnel;
(b) any loss of or damage to the Equipment
except to the extent such Loss is directly caused by HITIQ's negligence or fraud.
17.2 The Customer acknowledges that the Equipment and Licensed Software is not to be used as a medical device, including for the purposes of diagnosis, prevention, monitoring, treatment or alleviation of disease; diagnosis, monitoring, treatment, alleviation of or compensation for an injury; or investigation, replacement, modification or support of the anatomy or of a physiological process, and to the maximum extent permitted by applicable law, the Customer indemnifies, and must keep indemnified HITIQ, its officers, employees and contractors, from and against any and all Losses incurred by any of them directly or indirectly in connection with any use of the Equipment or the Licensed Software as a medical device.
18.1 Either party may terminate this Agreement or any accepted Order immediately by written notice if the other party breaches this Agreement and fails to remedy such breach within 14 days of receiving notice of such breach.
18.2 To the greatest extent permissible by law, either party may terminate this Agreement or any accepted Order immediately by written notice if the other party is bankrupt or otherwise subject to an insolvency event (including the appointment of any controller, receivers and managers, or if the party is unable to pay its debts when they become due).
18.3 On the termination of this Agreement:
(a) each and every accepted Order will automatically be terminated;
(b) the Customer must cease using the Licensed Software; and
(c) the Customer must remove the Licensed Software from any hardware owned by the Customer and procure each User to remove the Licensed Software from any hardware owned by the User.
18.4 Within 14 days of termination of this Agreement, the Customer must return all Equipment to HITIQ.
18.5 This clause 18.5 and clauses 5, 10, 11, 13, 16, 17, 18.3, 18.4 and 21 will survive termination of this Agreement.
19. Force Majeure Event
Where any failure or delay by a party (Affected Party) in the performance of any or all of its obligations under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
(a) the Affected Party must as soon as practicable give the other party written notice of that fact
(b) the Affected Party is not liable for that failure or delay;
(c) the Affected Party's obligations under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event;
(d) the parties will meet, acting reasonably and in good faith, to seek to agree, where possible, reasonable alternative approaches to perform obligations which are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event (including, if necessary, changes to this Agreement); and
(e) if the Force Majeure Event continues for more than 90 consecutive days and while it continues, the party other than the Affected Party may, at its sole discretion, terminate this Agreement by giving written notice to the Affected Party.
20.1 This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for their preparation.
20.2 A failure, delay, relaxation or indulgence by HITIQ in exercising any power or right conferred on HITIQ by this Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement. A waiver of a breach does not operate as a waiver of any other breach.
20.3 Any provision of this Agreement (or any part thereof) which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
20.4 Nothing in this Agreement will be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary between the Customer and HITIQ.
20.5 This Agreement cannot be amended or varied except in writing signed by the parties.
20.6 The Customer must not assign, transfer or novate any of its rights or obligations under this Agreement without the prior written consent of HITIQ.
20.7 This Agreement will be governed by and construed with reference to the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Victorian courts and courts competent to hear appeals from the same.
20.8 This Agreement contains the entire understanding between the parties and supersedes all prior communications and agreements between the parties, including any prior written or verbal undertakings or statements. The parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of this Agreement.
20.9 Any notice or other communication to or by a party under this Agreement must be given to the other party to the address set out at item 7 of the Master Agreement. Notice is deemed to be given by the sender and received by the addressee:
(a) if delivered in person, when delivered to the addressee;
(b) if posted, at 4.00pm (addressee's time) on the 7th business day after the date of posting to the addressee, whether delivered or not; or
(c) if sent by email, 4 hours after the time the email was sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
but if the delivery or receipt is on a day which is not a business day or is after 4.00 pm (addressee's time), it is deemed to have been received at 9.00 am on the next business day. In this clause business day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place of receipt of the notice or communication.
21. Definitions and Interpretation
In this Agreement, capitalised terms have the following meaning:
Agreement means the Master Agreement, these standard terms and conditions and all annexures, the Data Processing Addendum and all accepted Orders.
Authorised Software User means a person who is authorised by the Customer to access the Licensed Software, who has had sufficient training in relation to the Licensed Software and who needs to access the Licensed Software for the Licensed Purpose.
Commencement Date means the date specified in item 2 of the Master Agreement.
Commercialisation in relation to intellectual property, means to manufacture, sell, hire or otherwise exploit a product or process, or to provide a service, incorporating that intellectual property, or to license or assign intellectual property to any third party to do any of those things.
Confidential Information means the terms of this Agreement and all information belonging or relating to a party to this Agreement, whether oral, graphic, electronic, written or in any other form that is:
(a) or should reasonably be regarded as, confidential to the party to whom it belongs or relates; or
(b) not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement.
Contributions means cash (if any), in-kind, funding (from any source), inventorship or other contributions.
Customer means the party specified in item 1 of the Master Agreement.
Data Processing Addendum means the data processing addendum which can be accessed here: [insert link]
De-identified Data means User Data which has been anonymised by HITIQ so that Users are not reasonably identifiable.
Delivery Address means the address specified in the accepted Order as the address to which the Equipment is to be delivered.
Delivery Costs has the meaning given to that term in clause 4.7.
Delivery Date has the meaning given to that term in clause 4.5.
Documentation means the user manuals and on-line documentation, which are provided by or on behalf of HITIQ to the Customer (including, without limitation, in relation to the Licensed Software and Equipment).
Due Date has the meaning given to that term in clause 5.1.
Enhancement Term has the meaning given to that term in clause
Equipment means the goods specified in an accepted Order consisting of one or more of the following:
(b) Nexus charge case with charge cord for the Mouthguards; and
(c) iPad with the Licensed Software pre-installed.
Equipment Term means the equipment term set out in the accepted Order.
Fees means the fees for the Equipment, Licensed Software and Software Maintenance Services based on the Price List and as set out in the accepted Order.
Force Majeure Event means any act, event or cause, other than a lack of funds, which:
(a) directly or indirectly results in a party being prevented from or delayed in performing any or all of its obligations under this Agreement; and
(b) is beyond the reasonable control of that party,
including war, sabotage, riot, act of terrorism, national emergency, fire, lightning, flood, cyclone, earthquake, landslide, storm, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, pandemic, public health emergency, quarantine or radioactive contamination.
HITIQ means HITIQ Limited.
Improvement means an improvement, enhancement, development, modification or adaptation.
Licensed Purpose means monitoring the performance and capabilities of the Users for the purposes of data collection, testing, and validation of data against other data sources, and specifically excludes any purposes which involve: diagnosis, prevention, monitoring, treatment or alleviation of disease; diagnosis, monitoring, treatment, alleviation of or compensation for an injury; and investigation, replacement, modification, or support of the anatomy or of a physiological process.
Licensed Software means the software to store, manage and provide on-going access to the User Data, including Software Enhancements.
Master Agreement means the HITIQ Global Master Supply and Licence Agreement executed by the parties.
Mouthguards means Nexus A9 Smart Mouthguards.
Order means the order for Equipment issued to HITIQ by the Customer in the form of Annexure A.
Personnel means all employees, agents, contractors, directors and officers of a party and, in relation to the Customer, includes the Users and Authorised Software Users.
Price List means the prices for the Equipment, Licensed Software and Software Maintenance Services set out in item 5 of the Master Agreement.
Software Enhancement means an extension, addition or further development of an existing feature or functionality of the Licensed Software, or the creation of a new feature or functionality of the Licensed Software or any component of the Licensed Software, including a new module.
Software Maintenance Services means the services in Annexure B.
Special Conditions has the meaning given to that term in clause 9.1.
Term has the meaning given to that term in clause 2.
User means the individuals specified in item 3 of the Master Agreement.
User Data means all sensor trace data generated from usage of the Mouthguards by the Users.