TERMS & CONDITIONS | NEURO OPTICA OPERATIONS PTY LTD
Last Updated: 2 February 2024
By accessing our Website or Subscribing and registering as a user of the mobile application known as ‘BrainEye’ (App) provided by Neuro Optica Operations Pty Ltd ACN 669 149 884 trading as BrainEye, you agree to be legally bound by the following terms and conditions (Terms).
If you Subscribe as a Clinical Trial Participant, your use of the App is also governed by the Participant Information Sheet, and Consent Form.
- Your Declaration
- By accessing our Website or Subscribing and registering an account to use the App, you must comply with these Terms. If we consider that you’re not complying with these requirements, we may take any action that we are legally entitled to take, which includes (without limitation) deleting or suspending your Subscription and account registration.
- By registering an account and Subscribing to use our App, you:
- confirm that all the information you’ve given us in connection with your registration is complete, true and correct at the time it’s given;
- confirm that you’ve read and understood all the information in these Terms and that you agree to act in accordance with them;
- accept that it’s your responsibility to ensure that the personal information you provide to us is kept current. Any changes to your name, address, email address, phone numbers or other details should be sent to us as soon as practicable;
- agree to maintain a current email address and phone number by which you can be contacted for the duration of your registration on our App, and through which we may communicate formally with you; and
- if you are based in the European Union, you are over the age of digital consent; or
- if you are based in any jurisdiction other than the European Union, you are over the age of digital consent, or have your parent or guardian’s consent and supervision when registering and using our App.
- You acknowledge that you may have your registration or account terminated or suspended if we determine that any of the above statements are untrue, or you are otherwise in breach of these Terms.
- USER Accounts
- To access the App, you must Subscribe and create an account with us. Only one end user is permitted to access the App per Subscription. It is your responsibility to ensure that only the registered end user accesses the App. We reserve the right to suspend and/or cancel your Subscription if you allow other persons to access the App through your Subscription.
- You must not:
- share your account information with any unauthorised third party; and
- use another person’s account.
- You are solely responsible for maintaining the security of your account with us. You must keep your login credentials confidential. We assume no responsibility for any loss that you may sustain due to a compromise of your account credentials. You are responsible for keeping your contact details up to date so that we may contact you. We assume no responsibility if you are unable to access your account because you cannot provide appropriate login credentials. If you are having issues with your account, or believe that your login credentials have been compromised, you may contact us at firstname.lastname@example.org.
- By virtue of these Terms, you are granted a non-exclusive, non-transferable, non-sublicensable License to personally access and use, for non-commercial purposes, the Website and App and the services offered on the Website and App (Services).
- This License shall continue until terminated in accordance with these Terms.
- USE OF OUR Website and App
- These Terms govern your right to use the Website and App, and/or any links provided on the Website and App to other websites.
- In downloading any content from the Website and App to your computer or device, you do not receive any ownership rights to such content and by downloading any content you agree not to use the content for any unlawful purpose and you agree that your use of the Website and App is only for your personal use and not for any commercial or other use contrary to these Terms and our legal rights in respect of the Website and App.
- You agree that if you download any content from the Website and App you will not reproduce, distribute in person, publish, republish, print, upload to any third party, post on any or distribute or modify or otherwise deal with any content in the Website and App in whatever format, personally or otherwise, and/or provide it, or any part of it, to a third party that would otherwise infringe our Intellectual Property rights.
- You agree that in downloading the App, you will not rent, lease or lend it to a third party nor decompile, reverse engineer, modify or derive content from the Website and App and/or make it available over a network where it could be used by multiple devices at the same time.
- You agree that your use of the Website and App will not violate any laws without limitation, including those governing competition, advertising, consumer protection laws, privacy, obscenity, spamming, stalking, Intellectual Property rights and/or defamation in Australia and when accessed in another jurisdiction the laws of that jurisdiction and Australian law, so far as the laws are not inconsistent, in which case you agree to be bound by the laws of New South Wales, Australia.
- You agree that in using the Website and App, you will not post threatening, harassing, defamatory, obscene, offensive, hate mail or speech or facilitate others to commit such acts in whatever format.
- You agree that we may, and reserve the right to, remove any comments made by you about the Website and App, any of its content, its individual representatives, officers, directors, consultants and/or employees which we believe in our sole discretion to be damaging to BrainEye.
- The content on the Website and App, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like and the trademarks, service marks and logos contained therein, are owned by or licensed to us, subject to copyright and other Intellectual Property rights under law.
- You must use the Website and App responsibly and in accordance with all Applicable Laws, and must not (including but not limited to):
- access or attempt to access the App through any other medium other than the App or Website that we provide;
- circumvent any access or use restrictions that we have implemented;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- attempt to disable, impair, or destroy the App or Website;
- upload, transmit, store, or make available any content or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the App or Website;
- disrupt, interfere with, or inhibit any other user from using the App or Website;
- engage in fraudulent activities, such as payment and refund fraud;
- use any data mining or similar data gathering and extraction methods in connection with the App or Website; and
- artificially manipulate or disrupt the App or Website.
- Subject to clause 5.b, the Website and App are designed for all users that are over the age of digital consent in their jurisdiction; please refer to the Age of Digital Consent Annexure for further information.
- You are eligible to access and use the Website and App, or Subscribe to the Website and App if:
- you are over the age of digital consent in your jurisdiction; or
- are under the age of digital consent in a jurisdiction other than the European Union; and
- have your parent or guardian’s consent and supervision.
- You agree to indemnify us for any loss or damage that we suffer as a consequence of your failure to comply with these Terms.
- Without limitation, the Website and App is available only to individuals with whom only legally binding contracts can be formed in the relevant jurisdiction in which You reside.
- We have the right to refuse to deal with you, at any time, at our sole discretion, including the suspension or termination of your Subscription, if we believe that you may or will bring our reputation, those individuals who represent us in the marketplace, our other users, into disrepute or otherwise will interfere with other parties’ rights to have reasonable use of and access to the Website and App or to the contents and components of the Website and App or are in any way in breach of these Terms.
- Third parties
- Renewal & Termination
- Our App Subscriptions extend for 12 months from registration and paying for use of our App (Subscription Period).
- Your Subscription will automatically renew and continue to renew for the same term of your initial Subscription unless you cancel your Subscription via the billing platform your Subscription was purchased on.
- If your Subscription was created as an In-App Purchase (via Apple App Store or Google Play Store) you must cancel your Subscription via Apple Subscriptions or the Google Play Store.
- You may cancel your Subscription by following the steps in clause 7. Please note a refund will not be issued upon cancellation. At the end of your paid Subscription Period, we can then deactivate any account in your name, your membership of App and archive any information about you, or your account, stored in our database as well as cease the provision of any information to you.
- Your information may be stored for up to 7 years from the date of purchase and/or Subscription at which point in time it will be deleted or destroyed.
- We can terminate your Licence and Subscription at our sole discretion if we believe you have breached any of these Terms and/or you have or are facilitating the unlawful activity of a third party in respect of the Website and App. We are at liberty to take any other action necessary to enforce these Terms.
- In Subscribing for the App (Purchase) you agree to:
- pay using a valid credit card (or other form of payment as we may allow);
- provide us with current and complete information as detailed in the purchase order form including full legal name, email address, credit card details and billing information as required and without limiting any of our rights and remedies if we discover or believe that any information provided by you is inaccurate or incomplete, we reserve the right to refuse to continue with your Purchase, or put on hold or terminate your access to the Website and App or any of the services or products provided by us at any stage at our sole discretion and you forfeit any right to a refund of any payment made by you for the Purchase;
- pay all costs, fees, charges, applicable taxes and other charges as may be incurred in respect of the Purchase (Costs).
- All Costs will be billed to you in the local currency set by your device’s app store settings, unless otherwise indicated.
- You acknowledge and agree that prices will vary depending on the type of Subscription as well as the region you are located.
- In Subscribing for the App (Purchase) you agree to:
- Access to the App
- You will receive access to the App upon our receipt of Payment from you.
- Where we provide access to the App, and you claim that you have not received such access, then you must contact us within seven (7) days of the date by which you purchased your Subscription for the App for us to investigate your claim.
- Subject to the rights granted to you by statutory consumer protection legislation, which cannot be excluded, due to the nature of the Website and App, and as we make no representations to you in respect of your use of the Website and App, we provide no warranty as to any results or outcomes associated with using the Website and App.
- You expressly acknowledge that your use of the Website and App is at your sole risk.
- We do not offer refunds or credits for unused Subscription Periods, accidental purchases, medical conditions, or any similar reason or event, unless required by law to do so.
- To the maximum extent permitted by the Applicable Law, we exclude all liability relating to the collection, use, disclosure or storage of your personal data by us or any third party with whom we are required to share your personal data in order to provide you with our services.
- Medical Disclaimer
- We are not a medical organisation and we do not and cannot give or purport to give you any medical advice or assistance in whatever form. Nothing in the Website and App or anything associated with it should 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.
- You are solely responsible for evaluating and assessing your own health and wellbeing and whether, in all the circumstances, you should access and use the Website and App. We encourage you to seek appropriate medical advice or assistance before embarking on any use of the Website and App.
- You agree that neither we, nor any of our affiliates, service providers and/or suppliers, warrant or make any representation about the Website and App, and specifically do not make any representation about the risks, results, reasonableness, or accuracy or otherwise of such contents, products, services or offers. Your use of the Website and App is at your sole risk.
- You are responsible for making your own inquiries and seeking independent advice from an appropriately qualified healthcare professional before acting on any information or material made available to you through the Website and App.
- The App does not provide medical services or advice, is not designed for medical purposes and is intended for fitness use or general information only. The App does not claim to diagnose, treat or cure any disease nor investigate, replace, modify the anatomy or physiological or pathological process or state of the human body. The App should never replace professional medical advice or diagnosis.
- The contents of the App (including all media, information, graphic elements and images) are for general information purposes only and do not constitute medical or professional advice. The information provided on the App is never a substitute for professional advice; and information within the App should not be relied upon as such. Consult with a medical professional before taking any action based on the information contained in the App.
- The App should not be relied on to diagnose, treat, cure, monitor or prevent any disease or state in the human body. Consult your doctor before using the App, or relying on any information contained in the App. The App does not provide medical treatment advice, users should not rely on the information contained in the App. Do not disregard medical advice or treatment conferred by a professional medical practitioner because of information accessed through the App.
- BrainEye does not warrant that any information available on the App is complete, accurate, true or current. BrainEye is not responsible for any course of action that you take based on the information contained in the App.
- By downloading and using the App, you acknowledge that you:
- understand the App does not provide medical advice;
- will not rely on the information in the App;
- have read and understood this Disclaimer;
- agree with this Disclaimer; and
- agree to be legally bound by this Disclaimer.
- If you do not agree to be legally bound by this Disclaimer, do not download, access, register for, or use the App.
- CLINICAL TRIALS
- We may from time to time conduct clinical trials and use data gathered from Clinical Trial Participants Subscribed for the App (provided Clinical Trial Participants comply with clause 13(b) to (d)).
- You may Subscribe for the App as a Clinical Trial Participant, provided you have completed and returned the Consent Form and Participant Information Sheet.
- It is recommended to first consult with an appropriately qualified healthcare professional before providing consent to participating in a clinical trial and or following or using any of the information on the Website and App.
- If you are a Clinical Trial Participant, by participating in a clinical trial, you acknowledge that you are doing so voluntarily and at your own risk. To the extent permitted and required by law, this is a risk warning pursuant to the various civil liability and consumer protection legislation. You assume all risks in connection with your participation in any clinical trials we may offer.
- LImitation of Liability
- You are solely responsible for your use of our Website and App.
- To the maximum extent permitted by the Applicable Law:
- we do not make any warranties or representations other than those expressly set out in these Terms; and
- all terms, representations and warranties that may be excluded by law regarding our Website and the App are expressly excluded from these Terms.
- If any legislation implies any term or warranty into these Terms that cannot be excluded or modified, that term or warranty is included in these Terms.
- To the maximum extent permitted by the Applicable Law, we expressly exclude liability for any:
- loss, damage (whether direct, indirect, special, incidental, or consequential) or expense that you may incur or suffer (as the case may be) in connection with your use of, or inability to use, our Website or App;
- loss, damage or expense that you may incur or suffer (as the case may be) as a consequence of any act or omission of any third party (including, without limitation, other app users, third party service providers and controllers of third party websites) regardless of whether the relevant acts or omissions occur on our Website or App.
- If any legislation implies any term or warranty into these Terms and also prohibits provisions
- In a contract excluding the application or exercise of that term or warranty then, to the maximum extent permitted by the Applicable Law, our liability for a breach of such a term or warranty will be limited, at our sole option, to any one or more of the following:
- the supplying of the goods and services again; or
- the payment of the cost of having the goods and services supplied again.
- To the maximum extent permitted by the Applicable Law, if for any reason we are directly or indirectly liable to you in respect of any goods or services provided, our maximum aggregate liability in respect of all claims made by you will be the amount charged by us in respect of those goods and services.
- From time to time, we may promote certain practices relating to health and fitness by for example, providing information relating to nutrition and physical activity. Such information is provided by us for informational purposes only and is not intended to, and does not in any way, constitute the provision of medical advice. Before acting in accordance with the information provided on our Website or the App (in whole or in part), you should obtain the appropriate advice from a qualified medical professional and act in accordance with their advice. Subject to the rights granted to you by statutory consumer protection legislation, which cannot be excluded, in no event shall we be liable to you for any injury, or incidental, undue damages, whatsoever including damages for loss of income, data, or personal injury or consequential damages except to the extent such limitation or exclusion of liability is not permitted by law.
- You agree to indemnify us against any expense, loss, damage or cost (on a solicitor and own client basis) that we may sustain or incur in connection with any:
- breach of these Terms by you;
- use by you of our Website or App;
- infringement or purported infringement by you of our Intellectual Property rights or the Intellectual Property rights of any third party; or
- loss or damage to any property or injury to or death of any person caused (wholly or in part) by any act or omission by you.
- To the maximum extent permitted by the Applicable Law, you agree to forever release us and hold us harmless from any and all claims or causes of action that you may have against us in connection with your access to the Website or use of the App.
- You agree to indemnify us against any expense, loss, damage or cost (on a solicitor and own client basis) that we may sustain or incur in connection with any:
- Our rights to modify
- You acknowledge that we are entitled at any time, to change, modify, vary, delete or otherwise deal with the Website and App and/or the Terms, as we see fit.
- We will give you notice of any changes, for instance by:
- publishing them on our Website; or
- writing to the address (post or email) you last gave us.
- The most up-to-Terms always apply.
- You agree that we may transfer, assign, license or deal with our interest in the Website and App copyright or any other published material to any Affiliate or to any third party who shall in any event be bound to meet the obligation of any agreement you have with us for services we provide to you for payment. We will give you notice of any change or dealing within 60 days in the manner provided by clause 16.b.
We welcome feedback, comments and suggestions for improvements to Website and App (Feedback). You can submit Feedback via the App by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free, sublicensable and transferable license under any and all Intellectual Property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
If any of these Terms are held by a court to be unenforceable or invalid, the remaining provisions will continue in effect.
- Law and Dispute Resolution
These Terms are governed by the laws of New South Wales, Australia and you agree to the non-exclusive jurisdiction of the Courts of that jurisdiction and any appeals from those Courts. If any dispute occurs between us, we will act in good faith in an effort to resolve it through direct negotiation with you. If this is unsuccessful, either of us may request that the dispute is referred to mediation, and any dispute not resolved by negotiation or mediation will be resolved by the Courts.
- Entire agreement
These Terms form the entire agreement between us and you in relation to the App and the Website and your use of it.
Any failure or delay on our part to exercise a power or right we have under these Terms (unless in writing to you) does not amount to a waiver of that power or right and will not preclude our entitlement to exercise that power or right at a later date.
- Information provided on Website AND APP
All information provided by us on the Website and App is provided in good faith. We derive our information from sources which we believe to be accurate and up to date as at the date of publication. We may update any information at any time, but you acknowledge that the information on the Website and App may not be the most current. In addition, to the extent permitted by law, we do not make any representations or warranties that any information we provide is reliable, accurate or complete and (unless expressly stated), we make no guarantees of any specific result from use of this Website or App or the information service provided through it. To the extent permitted by law, we are not liable for any loss arising from any action taken or reliance by you on any information or material available on the Website or App.
- DEFINITIONS AND INTERPRETATION
In these Terms, unless the context requires otherwise:
|means in relation to a Party: 1. a person that controls or is controlled by that Party; and
2. a Related Body Corporate of that Party.
|Age of Digital Consent Annexure
|means the annexure annexed to these Terms setting out the permitted age of digital consent in each jurisdiction, which is the determining factor as to whether you may access our Website or App.
|means the BrainEye application.
|means any laws, legislation or regulation applicable in the jurisdiction in which you access our App or Website.
|Clinical Trial Participant
|means any end user who is accessing the App as a participant in Our clinical trials that may be running from time to time.
|means the clinical trial consent form you as an end user participating in our clinical trials must complete and return to us.
|means the Corporations Act 2001 (Cth).
|means the member nations of the European Union established by the Treaty of European Union, signed at Maastricht on 2 February 1992, which amended the Treaty of Rome establishing the European Community.
|means patents, rights to inventions, formulations, utility models, copyright, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill, or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, spreadsheets, moral rights, personal information, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
|means the license granted by us to you governing your use of the Website and the App in accordance with these Terms.
|Our, our, us, we,
|means Neuro Optica Operations Pty Ltd ACN 669 149 884 and Affiliates who for the purposes of these Terms refer to any person or entity we directly or indirectly own, control or operate, currently or in the future and/or which has a controlling interest in us and/or is an entity who has the right to operate with or on behalf of ourselves.
|Participant Information Sheet
|means the information sheet you as an end user participating in our clinical trials must complete and return to us.
|refers to a party to these Terms and it includes that party’s successors, administrators and assignors, and where a party consists of more than one person, then these Terms bind them jointly and each of them severally.
|Related Body Corporate
|has the meaning given to that term in the Corporations Act.
|means your subscription with BrainEye entitling you to use of the App.
|Terms and Conditions or Terms
|means collectively the website BrainEye.com, products and/or services offered or provided by BrainEye.
|You, you, yours
|means you, the end user accessing the Website or App.
In these Terms, unless the context requires otherwise:
- a singular word includes the plural and vice versa;
- a reference to a time is to local time in New South Wales, Australia;
- if any act contemplated by these Terms is to be done on a day that is not a Business Day, then the act must be done on or by the next Business Day;
- headings are for convenience only and do not affect interpretation;
- a reference to a covenant, obligation, or agreement of two or more persons binds or benefits them jointly and severally;
- a reference to a clause, paragraph, schedule, or annexure is a reference to a clause, paragraph, or annexure of these Terms;
- a reference to a Party, includes the Party’s executors, administrators, successors, substitutes, and permitted assigns;
- a reference to a statute, ordinance, code, or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments, or replacements of any of them;
- a reference to a document or agreement, including these Terms, is a reference to that document or agreement as amended, supplemented, varied, or replaced;
- a reference to a natural person includes a Body Corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity, and vice versa; and
- the words ‘include’, ‘including’, ‘such as’, ‘for example’, and any similar expressions are not to be construed as words of limitation.
Age of Digital Consent