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Nexus Terms of Use 

1. Structure

1.1 This agreement comprises of the following:

  1. HITIQ General Terms;
  2. Annexures to these HITIQ General Terms;
  3. Order Form; and
  4. Data Processing Addendum,
  5. (collectively, Agreement).

1.2 The parties must comply with the special conditions (if any) set out in an Order Form (Special Conditions).

1.3 If the terms of this Agreement are inconsistent, the order of priority is as follows:

  1. Order Form (including any Special Conditions);
  2. Data Processing Addendum;
  3. Annexures to these HITIQ General Terms; and
  4. HITIQ General Terms.

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2. Term

2.1 The Agreement commences on the Order Effective Date (as set out in the Order Form) and continues until the end of the Order Term (as set out in the Order Form) unless it is terminated earlier in accordance with clause 11 (Term).

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3. Supply by HITIQ

3.1 If included in the Order Form, HITIQ will provide:

  1. the Equipment and Licensed Software during the Term in accordance with Annexure B;
  2. the Software Maintenance Services during the Term in accordance with Annexure C; and
  3. the training specified in the Order Form.

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4. Fees and payment terms

4.1 HITIQ will provide invoices to the Customer from time to time for the Fees, Delivery Costs and any applicable Taxes. The Customer must pay HITIQ the amount specified in each invoice within 30 days of the date of the invoice.

4.2 If the Customer fails to pay any amount by the due date, HITIQ may:

  1. 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
  2. suspend the provision of the Licensed Software and the Software Maintenance Services.

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5. Intellectual Property

5.1 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, including any Improvements to the Equipment, the Licensed Software and the Documentation.

5.2 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.

5.3 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.

5.4 Any dispute or difference arising between the parties in relation to clause 5 will be finally determined by an independent expert:

  1. agreed on by the parties and experienced in the field; or
  2. 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.

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6. User Data

6.1 All User Data will be owned by the Customer.

6.2 The Customer 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:

  1. performing its obligations under this Agreement; and
  2. generating De-Identified Data.

6.3 The Customer grants HITIQ a non-exclusive, perpetual, royalty free licence to access, store and use the De-identified Data for the following purposes:

  1. internal research and development;
  2. updating HITIQ's databases of de-identified sensor data collected via Mouthguards;
  3. improving the performance of HITIQ's technology, products and services; and
  4. purposes related to regulatory compliance and approvals.

6.4 The Customer must ensure that adequate back-up and recovery procedures are implemented and maintained to protect and preserve the User Data.

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7. Confidentiality

7.1 The Recipient acknowledges that the Discloser’s Confidential Information is the property of and confidential to or a trade secret of the Discloser.

7.2 Subject to clause 7.3, the Recipient must:

  1. keep the Discloser’s Confidential Information confidential and not directly or indirectly use or disclose it to any other person without the prior written approval of the Discloser;
  2. take all reasonable steps to secure and keep secure the Discloser’s Confidential Information in its possession or control;
  3. not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of the Discloser’s Confidential Information for any purpose.

7.3 Notwithstanding clause 7.2, the Recipient may:

  1. use the Discloser’s Confidential Information to the extent required to perform its obligations under this Agreement;
  2. use and disclose the Discloser’s Confidential Information in accordance with the Discloser’s prior written consent;
  3. disclose the Discloser’s Confidential Information to the extent required by any applicable law, court order, or the applicable rules of any financial market to which a party or its related body corporate is subject, provided that, to the extent practicable and as soon as reasonably possible, the Recipient:
    1. notifies the Discloser of the proposed disclosure;
    2. consults with the Discloser as to its content; and
    3. uses reasonable efforts to comply with any reasonable request by the Discloser concerning the proposed disclosure; and
  4. disclose the Discloser’s Confidential Information to:
    1. its Personnel on a strictly “need to know” basis; and
    2. its professional advisors for the purposes of receiving advice in relation to this Agreement,
    3. provided that the Recipient:
    4. ensures that these persons are under equivalent obligations of confidence to the Recipient as provided in this Agreement; and
    5. remains primarily liable for any breach of this Agreement by such persons as if the Recipient had committed such breach.

7.4 Subject to clause 7.5, on termination of this Agreement, the Recipient must return, and ensure any person to whom it has disclosed the Discloser’s Confidential Information to return, all records containing any Confidential Information to the Discloser or, at the Discloser’s election, permanently erase the Discloser’s Confidential Information from those records.

7.5 Nothing in this clause 7 will require a Recipient 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 Recipient makes no further use of the relevant information and continues to be bound by this clause 7 in respect of the retained files.

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8. Privacy

8.1 Each Party

  1. is responsible for determining and monitoring its own compliance with Privacy Laws; and
  2. must comply with their respective obligations in any Data Processing Addendum.

8.2 In relation to any Personal Information collected or disclosed to the Customer in connection with this Agreement, the Customer warrants to HITIQ that it will:

  1. comply with all Privacy Laws;
  2. not do anything with such Personal Information that would knowingly cause HITIQ to breach any Privacy Laws;
  3. take all reasonable steps to ensure that such Personal Information is protected against loss, misuse, and unauthorised access, modification or disclosure;
  4. to the extent permitted by applicable law, notify HITIQ as soon as reasonably practicable upon becoming aware of any actual or suspected unauthorised access or disclosure of such Personal Information, and cooperate with each party in investigating the same; and
  5. cooperate with HITIQ to resolve any privacy complaint, or action any notification or request, pertaining to such Personal Information.

8.3 The Customer must:

  1. provide to each User a copy of the Privacy Policy; and
  2. obtain the User's consent to HITIQ collecting, holding, using and disclosing their Personal Information in accordance with the Privacy Policy,

prior to the Customer submitting an Order Form for any Equipment to be used by the User.

8.4 Where the Customer is to disclose Personal Information to HITIQ in order for HITIQ to perform its obligations under this Agreement, the Customer warrants that it has:

  1. all necessary consents from the relevant individuals to disclose such information, and for HITIQ to collect and use such information; and
  2. accurately recorded such consents.

8.5 The Customer must put into place and maintain appropriate technical and organisational measures to secure Personal Information, having regard to the risk of accidental or unauthorised access, loss, destruction, misuse, modification, disclosure or damage to that Personal Information.

8.6 If either party has knowledge of any accidental loss or destruction of, or unauthorised disclosure of or access to Personal Information relevant to this Agreement, the party with such knowledge must:

  1. report such unauthorised disclosure or access to the other party as soon as practicable;
  2. mitigate, to the extent practicable, any harmful effect of such disclosure or access that is known to it or its Personnel;
  3. cooperate with the other party in providing any notices to individuals regarding accidental or unauthorised disclosures, as reasonably directed by the other party; and
  4. cooperate with any investigation into the incident that is subsequently undertaken by any data privacy authority, in consultation with the other party.

8.6 In relation to any Personal Information collected or disclosed to HITIQ in connection with this Agreement, HITIQ warrants to the Customer that it will:

  1. comply with all Privacy Laws;
  2. not do anything with such Personal Information that would knowingly cause the Customer to breach any Privacy Laws;
  3. take all reasonable steps to ensure that such Personal Information is protected against loss, misuse, and unauthorised access, modification or disclosure;
  4. to the extent permitted by applicable law, notify the Customer as soon as reasonably practicable upon becoming aware of any actual or suspected unauthorised access or disclosure of such Personal Information, and cooperate with each party in investigating the same; and
  5. cooperate with the Customer to resolve any privacy complaint, or action any notification or request, pertaining to such Personal Information.

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9. Liability

9.1 Subject to the remainder of this clause 9, 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:

  1. the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
  2. the Customer, a User or any other person was previously notified of the possibility of the loss or damage.

9.2 Subject to clauses 9.4 and 9.5, 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 Form, 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.

9.3 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.

9.4 Nothing in this Agreement or any Order Form 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.

9.5 To the fullest extent permitted by law, the liability of HITIQ for a breach of a non-excludable consumer guarantee referred to in clause 9.4 is limited, at HITIQ's option, to:

  1. the replacement of the Equipment or the Licensed Software or the supply of equivalent goods;
  2. the repair of the Equipment or Licensed Software;
  3. the payment of the cost of replacing the Equipment or Licensed Software or of acquiring equivalent goods; or
  4. the payment of the cost of having the Equipment or Licensed Software repaired.

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10. Indemnity

10.1 The Customer indemnifies and must keep indemnified HITIQ, its officers, employees and contractors, against all liabilities, losses, damages, expenses and costs of any kind (Loss) that HITIQ may pay, sustain or incur as a direct result of:

  1. use of the Equipment and the Licensed Software by the Customer and any Personnel;
  2. any loss of or damage to the Equipment caused by the Customer and any Personnel,

except to the extent such Loss is directly caused by HITIQ's negligence or fraud.

10.2 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.

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11. Termination

11.1 Either party may terminate this Agreement 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.

11.2 To the greatest extent permissible by law, either party may terminate this Agreement 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).

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12. Termination consequences

12.1 On the termination of this Agreement:

  1. all Order Forms will automatically be terminated;
  2. the Customer must pay all Fees due under this Agreement;
  3. the Customer must cease using the Licensed Software; return or make available for collection any equipment owned by HITIQ in accordance with its reasonable instructions; and
  4. 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.

12.2 Within 14 days of termination of this Agreement, the Customer must return all Equipment to HITIQ.

12.3 This clause 12 and clauses 4, 5, 6, 7, 9, 10 and 15 will survive termination of this Agreement.

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13. Force Majeure Event

13.1 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:

  1. the Affected Party must as soon as practicable give the other party written notice of that fact;
  2. the Affected Party is not liable for that failure or delay;
  3. 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;
  4. 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
  5. 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.

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14. General

14.1 A failure, delay, relaxation or indulgence by either party in exercising any power or right conferred on that party 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.

14.2 Any provision of this Agreement (or any part thereof) which is invalid in any jurisdiction must, in relation to that jurisdiction:

  1. be read down to the minimum extent necessary to achieve its validity, if applicable; and
  2. 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.

14.3 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.

14.4 This Agreement cannot be amended or varied except in writing signed by the parties.

14.5 The Customer must not assign, transfer or novate any of its rights or obligations under this Agreement without the prior written consent of HITIQ. HITIQ must not assign, transfer or novate any of its rights or obligations under this Agreement without the prior written consent of the Customer.

14.6 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.

14.7 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.

14.8 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 in the Order Form.  Notice is deemed to be given by the sender and received by the addressee:

  1. if delivered in person, when delivered to the addressee;
  2. 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
  3. 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.

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15. Definitions and interpretation

15.1 In this Agreement:

Agreement has the meaning given in clause 1.1.

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.

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 information that is by its nature confidential, or which should reasonably be regarded as confidential, including the terms of this Agreement and all information belonging or relating to a party, whether oral, graphic, electronic, written or in any other form, but excludes information that is or becomes generally available to the public (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 customer specified in the Order Form.

Data Processing Addendum means the data processing addendum agreed between the parties.

De-identified Data means User Data which has been anonymised by HITIQ so that Users are not reasonably identifiable.

Delivery Costs means all costs associated with the delivery of the Equipment, including courier costs and Taxes.

Discloser means the party that discloses Confidential Information.

Documentation means the user manuals and on-line documentation, which are provided by or on behalf of HITIQ to the Customer, including in relation to the Licensed Software and Equipment.

Equipment means the goods specified in an Order Form consisting of one or more of the following:

  1. Mouthguards;
  2. Nexus charge case with charge cord for the Mouthguards; and
  3. iPad with the Licensed Software pre-installed.

Equipment Term means the equipment term set out in the Order Form.

Fees means the fees based on the Price List and as set out in the Order Form.

Force Majeure Event means any act, event or cause, other than a lack of funds, which:

  1. directly or indirectly results in a party being prevented from or delayed in performing any or all of its obligations under this Agreement; and
  2. 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, epidemic, pandemic, public health emergency, quarantine or radioactive contamination.

HITIQ means the HITIQ entity listed in the Order Form.

Improvement means an improvement, enhancement, development, modification or adaptation.

Licensed Software means the software to store, manage and provide on-going access to the User Data, including Software Enhancements.

Mouthguards means Nexus A9 Smart Mouthguards.

Order Form means an order form signed by the parties specifying the products and/or services HITIQ will provide to the Customer.

Personal Information means any information that:

  1. relates to an identifiable individual and identifies or can be used to identify that individual, directly or indirectly, either alone or in combination with other personal or identifying information that is or can be associated with that specific individual, including:
    1. first and last name;
    2. home or other physical address, including street name and name of city or town and/or province or territory;
    3. email address or other online information, such as a user name and password;
    4. telephone number;
    5. government-issued identification or other number;
    6. financial or payment card account number;
    7. date of birth; or
    8. health information, including information regarding the individual's medical history or mental or physical condition, or medical treatment or diagnosis by a health care professional; and
    9. any information that is combined with any of (a) through (h) above; or
  2. the relevant Privacy Laws otherwise define as protected personal information.

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 (as defined in Annexure B).

Price List means the price list set out in Annexure A.

Privacy Laws means all applicable laws, rules and regulations related to the protection of Personal Information.

Privacy Policy means HITIQ's Privacy Policy which can be accessed at https://hitiq.com/legal/privacy-policy.

Recipient means the party receiving Confidential Information of the Discloser.

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 software maintenance services set out in Annexure C.

Special Conditions has the meaning given to that term in clause 1.2.

Taxes means all government-imposed taxes, as per the applicable law associated with the supply of goods or services under this Agreement, including any value added tax, goods or services tax, duties, import/export duties, direct or indirect taxes, and related penalties or interest, but excludes taxes based on HITIQ’s profits.

Term has the meaning given to that term in clause 2.1.

User means the individuals specified in the Order Form.

User Data means all sensor trace data generated from usage of the Mouthguards by the Users.

15.2 In this Agreement, unless the context otherwise requires:

  1. headings are for convenience only and do not affect interpretations;
  2. the singular includes the plural and conversely;
  3. a grammatical form of a defined word will have the corresponding meaning;
  4. a reference to a clause, schedule or annexure is a reference to a clause, schedule or annexure to this Agreement and references to this Agreement include any such clause, schedule or annexure;
  5. a reference to a thing (including a right) includes a reference to a part of that thing;
  6. a reference to a document includes the document as modified from time to time and any document replacing it;
  7. the word “person” includes natural person and any body or entity whether incorporated or not;
  8. wherever “include” or any form of that word is used it must be construed as it were followed by “(without limitations)”;
  9. a reference to “written” or in “writing” includes any communication sent by letter or email; and
  10. no provision is to be construed to the disadvantage of a party because that party was responsible for its preparation.

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Annexure A - Price List

As per HITIQ Order Form.

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Annexure B - Equipment and Licensed Software Schedule

B1. Manufacture and delivery of Equipment

B1.1 HITIQ will:

  1. manufacture the number of Mouthguards specified in the Order Form;
  2. coordinate and implement intra oral scanning of each User in order to manufacture the Mouthguards;
  3. ensure that the Mouthguards are manufactured and fitted for the Users under the supervision of a suitably qualified dentist or orthodontist;
  4. deliver the number of Equipment specified in the Order Form to the Delivery Address; and
  5. use its best endeavours to deliver the Equipment within 2 weeks of successful intra oral scanning of the Users.

B1.2 The Customer:

  1. must pay all Delivery Costs; and
  2. acknowledges and agrees that HITIQ does not guarantee delivery by the date specified in clause (e) and no action may be taken by the Customer or Users against HITIQ if delivery is later than anticipated or desired.

B2. Title and risk

B2.1 The Customer acknowledges and agrees that all Equipment provided to the Customer by HITIQ is leased to the Customer and not sold. Title in the Equipment remains with HITIQ at all times.

B2.2 Risk in the Equipment passes to the Customer on delivery to the Delivery Address.

B3. Licensed Software

B3.1 HITIQ grants the Customer 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 during the Term.

B3.2 The Customer must ensure that the Licensed Software is only used by the Authorised Software Users.

B3.3 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.

B3.4 The Customer may obtain a worldwide, non-exclusive, non-transferrable, non-sublicensable, non-assignable and revocable licence during the Term 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.

B3.5 The Customer must only use the latest versions and updates of the Licensed Software as provided by HITIQ.

B3.6 The Customer must not, and must procure that its Personnel do not:

  1. use the Licensed Software for any purpose other than the Licensed Purpose;
  2. 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;
  3. 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
  4. 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.

B4. Use of Equipment

B4.1 The Customer must:

  1. use the Equipment, and procure that its Personnel use the Equipment, only for the Licensed Purpose (and not for any other purpose);
  2. 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;
  3. notify HITIQ within 24 hours of it becoming aware that any Equipment has been lost, stolen, damaged or destroyed, or has become inoperable;
  4. not sell, dispose of, sub-licence or encumber the Equipment in any way (or attempt to do the same);
  5. not alter or remove any markings (or similar) on the Equipment;
  6. not make any alteration, modification or repairs (or similar) to the Equipment without the prior written consent of HITIQ; and
  7. 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.

B4.2 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.

B4.3 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.

B5. Defective Equipment

B5.1 If the Equipment is faulty or damaged, the Customer must notify HITIQ by emailing support@hitiq.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 to the Customer).

B5.2 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.

B5.3 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:

  1. an act or omission by the Customer, a User or a third party that is not in accordance with the Documentation or other use instructions;
  2. fair wear and tear, ageing and/or excessive use of the Equipment.

B6. Definitions

B6.1 In this Annexure B:

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.

Delivery Address means the address specified in the Order Form as the address to which the Equipment is to be delivered.

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.

Software Access Key has the meaning given in clause B3.3.

Capitalised terms used but not otherwise defined in this Annexure B have the meaning given to it in the HITIQ General Terms.

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Annexure C - Software Maintenance Services Schedule

C1. Scope of Software Maintenance Services

C1.1 “Software Maintenance Services” are as follows:

  1. Help Desk Support – HITIQ will operate the support and assistance service relating to the Licensed Software in accordance with the procedure set out in this Annexure C.
  2. Error Correction – HITIQ will use its reasonable endeavours to correct any Error reported by the Customer in accordance with this Annexure C.

C1.2 Software Maintenance Services specifically excludes the following:

  1. any maintenance services in respect of superseded versions of the Licensed Software;
  2. correction of errors or defects caused by operation of the Licensed Software in a manner other than that expressly authorised by the Agreement or the Documentation;
  3. rectification of errors or defects caused by misuse or incorrect use of the Licensed Software by any of the Customer's Personnel;
  4. consulting and training services unless expressly provided for within the Agreement;
  5. making Software Enhancements to the Licensed Software designed to provide functionality not specified in the Documentation or the Agreement;
  6. reviewing or advising in relation to the method of use of the Licensed Software or its integration with any of the Customer's systems or processes;
  7. maintenance of any of the Customer's equipment.

C2. Downtime

C2.1 HITIQ will use its reasonable endeavours to make the Licensed Software available to the Customer 24 hours a day, seven days a week, except during Maintenance Service Downtimes (as that term is defined below).

C2.2 “Maintenance Service Downtimes” are as follows:

  1. “Repair Downtime” means downtime caused by the need for modification or repairs to the Licensed Software server infrastructure, such as core routing or switching infrastructure. HITIQ will use its reasonable endeavours to give the Customer at least 48 hours’ notice prior to any Repair Downtime.
  2. “Scheduled Customer Downtime” means downtime caused by the need for maintenance to the Customer's configuration which the Customer has either requested, or which HITIQ has scheduled with the Customer in advance (either on a case-by-case basis, or based on standing instructions), such as for hardware or software upgrades.
  3. “Emergency Downtime” means downtime caused by the need for critical unforeseen maintenance needed for the security or performance of the Customer or HITIQ’s configuration or HITIQ’s network.

C2.3 The Customer agrees that:

  1. during Maintenance Service Downtimes, the quality of the Licensed Software may be temporarily degraded or a partial or complete outage of the Licensed Software may occur;
  2. HITIQ provides no assurance that the Customer will receive advance notification of the occurrence of any Maintenance Service Downtime; and
  3. the operation and availability of the systems used for accessing and interacting with the Licensed Software or to transmit information, including telephone, computer networks, and the Internet, can be unpredictable and may, from time to time, interfere with or prevent access to or use or operation of the Licensed Software. HITIQ will not be liable for any such interference with or prevention of the Customer's access to or use of the Licensed Software or the impact such interference or prevention may have on HITIQ’s ability to perform the Software Maintenance Services.

C3. Backup

C3.1 HITIQ will use commercially reasonable efforts to ensure that adequate back-up and recovery procedures are implemented and maintained to protect and preserve the User Data.

C4. Support and assistance service

C4.1 Operation Times

HITIQ will use its reasonable endeavours to operate and maintain a support and assistance service (Helpdesk) between the hours of 9.00 a.m. and 5.00 p.m, Australian Eastern Standard Time/Australian Eastern Daylight Time as applicable (Designated Time Zone), Monday to Friday, excepting public holidays in Melbourne, Victoria (Service Availability Time). The Customer may contact the Helpdesk by phone on +61 478 038 567 or by email on support@HITIQ.co. Notwithstanding the preceding sentence, if, for any reason, a support message received during the Service Availability Time is unable to be responded to during the Service Availability Time, HITIQ will use its reasonable endeavours to respond to such message during the next Service Availability Time.

C4.2 After Hours Messages

HITIQ will use its reasonable endeavours to respond to any messages received outside of the Service Availability Time during the next Service Availability Time.

C5. Errors

C5.1 Discovery of Errors

Upon discovering any Error, the Customer must contact the Helpdesk and provide a reasonably detailed report of the Error to the Helpdesk.

C5.2 Assigned Severity Level

HITIQ will deal with any Error reported by the Customer according to the severity level reasonably assigned to such Error by HITIQ.

C5.3 Severity 2 Errors

Where a problem is classified by HITIQ as a Severity 2 Error, HITIQ will during the Service Availability Time investigate the problem and respond to the Customer where reasonably practicable within one Business Day from the time of the first telephone consultation with the Customer and will, as and when necessary, provide the Customer with the following information:

  1. an outline of the problem;
  2. the proposed corrective action; and
  3. to the extent possible, the proposed timeframe for performing such corrective action.

C5.4 Severity 1 Errors

Where a problem is classified by HITIQ as a Severity 1 Error, HITIQ will:

  1. as soon as reasonably practicable mobilise a technical team to troubleshoot the problem and define solution options;
  2. as soon as reasonably practicable assign a representative to oversee and report on all corrective activities;
  3. initially notify the Customer of the problem resolution status; and
  4. thereafter until the Error has been resolved, regularly continue to apprise the Customer of the Error resolution status.

C6. Definitions

C6.1 In this Annexure C:

Designated Time Zone has the meaning given in clause C4.1.

Error means an error in the Licensed Software which significantly impairs the operation of the Licensed Software in the manner described in the Documentation relating to that Licensed Software.

Helpdesk has the meaning given in clause C4.1.

Service Availability Time has the meaning given in clause C4.1.

Severity 1 Error means an Error which renders an essential function of the Licensed Software materially inoperable or causes it to fail consistently (and materially) and no Workaround is available.

Severity 2 Error means an Error in which a non-essential function of the Licensed Software is experiencing a reproducible problem or a common non-essential operation fails consistently.

Software Maintenance Services means the services set out in clause C1.1 but excludes the services set out in clause C1.2.

Workaround means one or more reasonable temporary (electronic rather than manual) procedures, including the installation of a previous version of the Licensed Software, to bypass the Error in the Licensed Software until the Error can be corrected.

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