Smart Mouthguard Terms and Conditions
These legally binding terms and conditions of use (“Terms”) apply to your use of the HITIQ smart mouthguard, the software embedded within the smart mouthguard, the associated mobile application, the Website, and all other associated platforms, portals, applications, software, APIs, products and services (collectively, the “Service(s)”), including the use of the Content and HITIQ Output Data made available to you via the Services.
By accessing or using the Services, you indicate that you have read and accept these Terms and agree to abide by and be bound by all such Terms. If you do not accept these Terms, you must discontinue using the Services.
1.1 “Account” means an account registered by you on the Services.
1.2 “ACL" means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.3 “Content” means the written, visual, audio or other content published on or made available through the Service.
1.4 “HITIQ” (also referred to herein as "we", "us" or "our") means HITIQ Limited (ACN 609 543 213).
1.5 “HITIQ Output Data” means the data which is derived from the data collected via the HITIQ smart mouthguard and which is presented or made available to you through the Services.
1.6 “Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
1.7 “User Content” means any written, visual, audio or other content that is posted, linked, shared or otherwise made available through a Service by you.
1.8 “Website” means the website https://hitiq.com/ and any other website or electronic interface on which these Terms appear.
1.9 “You” means the person, jointly and severally if more than one, acquiring, accessing or using the Service.
2. APPLICATION OF THE TERMS
2.1 These Terms govern your use of the Services, the Content and the HITIQ Output Data.
2.2 HITIQ may amend these Terms from time to time without notice. Any amendment will be effective immediately upon being posted on the Service. While we will endeavour to notify you of any changes to these Terms, it is your sole responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your responsibility to stop using the Service. Your continued use of the Service after any amendment becomes effective will constitute your agreement to be bound by these Terms, as amended.
2.3 HITIQ also may offer other Services from time to time that are governed by additional terms of service (“Additional Terms”). These Terms must be read in conjunction with any other applicable terms and conditions of use governing the use of the Service. Unless otherwise stated, the Additional Terms will prevail to the extent of any inconsistency between these Terms and the Additional Terms.
3.1 The Services are owned and operated by HITIQ.
3.2 Through the Services you can:
(a) use the HITIQ smart mouthguard technology;
(b) view and analyse the HITIQ Output Data;
(c) obtain information derived from the HITIQ Output Data;
(d) access the Content;
(e) purchase products or services made available by HITIQ from time-to-time.
3.3 You acknowledge and agree that from time to time we may need to suspend access to all or a part of a Service while we fix defects and errors in the Service, install updates and undertake general diagnosis and maintenance of the Service, and that as a result of which the Service, the Content or the HITIQ Output Data may be less accessible or unavailable to you from time to time.
3.4 HITIQ reserves the right to permanently or temporarily vary, modify or discontinue any feature or component of the Services, or change the requirements to obtain access to the Services, at any time, without notice and without liability.
3.5 HITIQ reserve the right to determine the timing and content of software updates for the Services, which may be automatically downloaded and installed without prior notice to you.
4.1 You may be prompted to register an Account with the Services and to submit certain information to complete such registration (“Account Information”). The Account Information may include, but is not limited to, your email address, name, date of birth, contact details, and payment details. All Account Information you enter must be accurate, complete and not misleading. You are responsible for maintaining and updating your Account Information as required. You must keep your Account Information confidential. You are solely responsible for any loss or damage you may suffer because of your failure to do so.
4.2 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information provided by you which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security your Account Information.
4.3 Upon registration, you will create a username and password. Unless stated otherwise, each Account is for a single user only and not for multiple users. You are responsible for maintaining the confidentiality and security of your login and password details, and you agree that you will not share your password, let anyone else access your Account, or do anything that might put the security of your Account at risk. You are responsible for all activities on the Service which occur under your Account.
4.4 You may be unable to access or enjoy full use of the Services unless you register an Account.
4.5 HITIQ may suspend, terminate or cancel your Account and/or your access to any or all of the Service at its sole discretion. Where we suspend, terminate or cancel your Account, you must not attempt to re-register without our prior written consent from HITIQ.
4.6 We reserve the right to remove your username or similar identifier in respect of your Account if appropriate.
4.7 You may close your Account at any time, subject to you not having any outstanding transactions or payments owing in relation to your Account. By closing your Account, you acknowledge that you will still be bound by any of these Terms which by their nature are intended to survive, including but not limited to clauses 7, 8, 9, 10, 11, 13, 14, 15, 16 and 17.
5. ACCESS TO THE SERVICE
5.1 You represent that you are at least 16 years of age, or any higher minimum age to form a binding contract in the jurisdiction where you reside. If you are under the minimum legal age, you are not permitted to use or register an Account with the Services unless you first obtain the consent of your parent or guardian to use or register with the Service in accordance with applicable law, in which case your parent or guardian will be bound by these Terms and will be responsible for your actions. We reserve the right to seek any form of verifiable parental consent as we believe appropriate at any time.
5.2 We may refuse to offer the Services to any person and change the eligibility criteria at any time.
5.3 Use of the Service requires compatible devices, internet access, and certain software, may require periodic updates, and may be affected by the performance of these factors. We do not represent that the Services will be compatible with the device on which you are accessing the Service. You agree that these requirements, which may change from time to time, are your responsibility.
5.4 You are solely liable and responsible for any third-party charges incurred by you in accessing and using the Service, including in particular any network charges for fixed or mobile internet use.
6. USE OF SERVICES, CONTENT AND HITIQ OUTPUT DATA
6.1 Subject to these Terms, HITIQ grants you a non-exclusive, non-transferable, revocable license to:
(a) access and use the Services in accordance with these Terms;
(b) access and view the Content and the HITIQ Output Data through the Service;
(c) download and display the Content and the HITIQ Output Data locally for your personal, non-commercial use.
6.2 The Services, Content and HITIQ Output Data are for personal, non-commercial use only and may not be used in connection with any commercial endeavours unless specifically approved in writing by HITIQ.
6.3 You must not use, copy, adapt, modify, translate, disclose, distribute, license, assign, transfer or otherwise exploit the Services, the Content, or the HITIQ Output Data or any part thereof (including any third-party software incorporated or used in connection with the Services), except as expressly permitted in these Terms. No licenses or rights are granted to you, by implication or otherwise, except for the licenses and rights expressly granted in these Terms.
6.4 Without limiting the above, you must not, and must not permit or encourage any others to, do any of the following:
(a) use the Services, or allow access to it, in a manner that circumvents usage restrictions that exceeds the licenses granted to you in these Terms;
(b) breach or circumvent any security or authentication measures used or implemented by the Services;
(c) publish or publicly distribute any Content (excluding your User Content) or HITIQ Output Data;
(d) license, sub-license, sell, re-sell, rent, lease, transfer or distribute any portion of the Services, Content or HITIQ Output Data to any person, except as expressly permitted in these Terms;
(e) access or use the Services, Content or HITIQ Output Data for the purpose of making derivatives or developing products or services intended to be offered to third parties in competition with the Services;
(f) reverse engineer, decompile, disassemble or copy any of the Services, or otherwise attempt to derive source code from or about the Services;
(g) use screen scraping or other data extraction methods in connection with the Services, Content or HITIQ Output Data;
(h) use the Services or Content in a way that violates or infringes upon the rights of a third party;
(i) use the Services, Content or HITIQ Output Data in a manner that violates any applicable laws or these Terms.
7.1 HITIQ may collect, use, store, record and transmit your Personal Information, which is entered on the Services or derived from the Services.
7.3 HITIQ will comply with your requests relating to any concerns about the protection of Personal Information held by HITIQ on behalf of you (if any). If you have any requests or concerns, you are requested to contact firstname.lastname@example.org.
8. WARRANTIES AND GUARANTEES
8.1 Except to the extent prohibited by applicable law, all implied warranties (including, without limitation, warranties of merchantability and fitness for a particular purpose) are expressly excluded.
8.2 Notwithstanding the above, nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the user by the ACL or any other applicable law that cannot be excluded, restricted or modified by agreement.
8.3 Our Services come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Services repaired or resupplied if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
8.4 We may provide additional product warranties and guarantees under the HITIQ Returns and Warranty Policy, which are incorporated into these Terms by reference. These are in addition to any other rights and remedies that you may have under the ACL.
9. USER CONTENT
9.1 HITIQ may enable you to post, upload or share User Content to the Services.
9.2 You are responsible for all User Content that you submit to, publish or display on the Services, including its legality, reliability and appropriateness.
9.3 By submitting, publishing or displaying User Content on the Services, you grant us the right to use, modify, publicly display, reproduce and distribute such User Content on and through the Services. You retain all of your rights to any User Content you submit.
9.4 You represent and warrant that you own any User Content uploaded by you or that you have the right to use such User Content, and that the submission, publication or display of your User Content on the Services will not cause you or us to breach any law, regulation, rule, code or other legal obligation.
9.5 You agree that any User Content that you submit, publish or display does not contain any obscene, inappropriate, defamatory, disparaging, indecent, offensive, pornographic, threatening, abusive, racially insensitive or discriminatory content.
9.6 We are under no obligation to regularly monitor the accuracy or reliability of the User Content posted by you. However, we reserve the right to modify or remove any User Content from the Website at any time if we believe, in our sole discretion, that the User Content may breach any of these conditions.
10.1 You acknowledge that you use the Services at your own risk. We provide no warranty as to any results or outcomes associated with using the Services or that it is suitable for your intended use.
10.2 There is no guarantee that the Services will identify all potential head injury risks for any given user.
10.3 HITIQ does not warrant, guarantee or make any representation regarding the accuracy, adequacy, reliability, completeness or timeliness of the Content or the HITIQ Output Data. HITIQ does not warrant or represent that the Content or the HITIQ Output Data is free from human or mechanical error, technical inaccuracies or other typographical errors or defects. The Content and the HITIQ Output Data is provided by HITIQ in good faith on an “as is” basis without warranty of any kind. You accept all risks associated with any reliance upon the Content and HITIQ Output Data.
10.4 HITIQ is not a medical organisation and we do not give or purport to give you any medical advice or assistance in any form. The Services, Content and HITIQ Output Data, or anything associated with them, should not be taken or understood as medical advice or assistance nor should it be interpreted in substitution for any medical advice or assistance or used or referred to instead of seeking appropriate medical advice or assistance from qualified practitioners for your particular circumstances and needs.
10.5 The Services do not and are not intended to treat or prevent any medical condition. All Content and HITIQ Output Data is for general informational purposes only.
10.6 You are solely responsible for evaluating and assessing your own health and wellbeing and we encourage you to seek appropriate medical advice or assistance where appropriate, for example based upon results of a head injury symptomology assessment.
11. LIMITATION OF LIABILITY
11.1 The provisions of this clause set out our entire liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of all losses, claims or liabilities arising under or in connection with the Terms and your use of the Services, the Content and the HITIQ Output Data, whether in contract, tort (including negligence), breach of statutory duty, or otherwise.
11.2 To the fullest extent permitted by law, and subject to the ACL and any express warranties provided by HITIQ, you acknowledge an agree that HITIQ shall have no liability to you in connection with:
(a) any injury, loss or damage arising out of or related to the use (or the inability to use) the Service or any action taken based on the Content or HITIQ Output Data provided via the Service;
(b) any loss, damage or inconvenience suffered due to the unavailability, withdrawal, corruption or loss of any Service or Content;
(c) any indirect, incidental, special or consequential loss or damage, including loss of data, loss of business, loss of profit, loss of opportunity, business interruption, adverse effect on reputation and/or goodwill or lost profits.
11.3 Notwithstanding the above, nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the user by the ACL or any other applicable law that cannot be excluded, restricted or modified by these Terms.
12. PURCHASE AND PAYMENT
Your purchase and use of any physical products and paid Services are subject to the HITIQ Terms of Sale and HITIQ Returns and Warranty Policy, which are incorporated into these Terms by reference.
You agree to indemnify and hold harmless HITIQ, its directors, employees, agents, contractors and related entities ("the Indemnified") in respect of any loss, damage, injury or expense (including legal fees on a full indemnity basis) in connected with any third party claim made against the Indemnified in connection with:
(a) any breach of these Terms by you;
(b) your use of the Content and the Services;
(c) your User Content;
(d) a breach of any applicable laws by you;
(e) your breach of any third party's rights (including but not limited to intellectual property rights),
except to the extent the loss is caused by the actions of the Indemnified.
14. THIRD PARTY MATERIAL
14.1 You may be able, through hypertext or other links through a Service, to gain access to websites or materials which are not owned or operated by HITIQ (“Third Party Material”) from time to time. Unless otherwise specified, the Third Party Material is not owned by HITIQ and is not under HITIQ’s control.
14.2 The Third Party Material may have different terms and conditions and privacy policies which apply to the access of such material. We strongly advise you to read the terms and conditions and privacy policies of any Third Party Material that you access.
14.3 You agree that HITIQ is not responsible for examining or evaluating the content or accuracy of the Third Party Material.
14.4 You acknowledge and agree that HITIQ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Material.
14.5 You agree that you will not use any Third Party Material in a manner that would infringe or violate the rights of any other party and that HITIQ is not in any way responsible for any such use by you.
15. INTELLECTUAL PROPERTY
15.1 You acknowledge and agree that the Services (including all processes, know-how, algorithms, and software used to develop and maintain the Services), Content and HITIQ Output Data is protected by copyright, trade mark or other intellectual property rights and laws and remains the property of HITIQ or HITIQ’s third party suppliers or licensors as the case may be.
15.2 Other than your rights expressly granted under these Terms, you have no rights in or to the Services, the Content or the HITIQ Output Data, and you may not use the Services, the Content or the HITIQ Output Data except as permitted under these Terms.
15.3 No part of the Services, Content or HITIQ Output Data may be copied, reproduced, modified, republished, uploaded, posted, transmitted or distributed in any form or manner without HITIQ’s prior written consent.
15.4 All trade marks, names and logos which appear on, or which are affiliate with, the Service are proprietary to HITIQ and/or its affiliates. Use of these marks without the owner’s consent will infringe the owner’s intellectual property rights.
15.5 Nothing in these Terms should be interpreted as granting any rights to use or distribute any names, logos or trade marks except with the express written consent of the respective owner.
16.1 We may cancel or terminate your Account, without prior notice, for any reason, including if you breach these Terms, provided that if you are not in breach of these Terms, we will provide you with a pro rated refund of any fees paid by you in advance to access any paid Services reflecting the period for which you did not benefit from the Services.
16.2 Upon cancellation or termination of your Account, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall immediately cease and the HITIQ Output Data and certain Content (including your User Content) may no longer be available to you through the Services.
16.3 We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith. If applicable law requires us to provide notice of termination or cancellation, we will give prior or subsequent notice to you.
16.4 Despite the termination or cancellation of your Account, you will still be bound by any of these Terms which by their nature are intended to survive, including but not limited to clauses 7, 8, 9, 10, 11, 13, 14, 15, 16 and 17.
17.1 These Terms are governed by the laws of Victoria, Australia.
17.2 By accessing and using the Services, you agree to submit to the exclusive jurisdiction of the Courts of Victoria, Australia.
17.3 If you access the Services from other jurisdictions, you are additionally responsible for compliance with any local laws that may apply to your use of the Services.
17.4 The publication of any HITIQ email addresses on the Service is to facilitate communications relating to the Service. It must not be inferred as consent by HITIQ to receive unsolicited commercial electronic messages.
17.5 HITIQ’s failure to enforce any of these Terms shall not be construed as a waiver of any of HITIQ’s rights.
17.6 If any term is unenforceable it shall be read down so as to be enforceable or, if it cannot be read down, the term shall be severed from the Terms without affecting the enforceability of the remaining terms.