Last updated: September 30, 2022
Smileyscope Licence Terms and Conditions
1. Agreement and Term
(a) You may order the Smileyscope Products and Services by signing a quote provided by Smileyscope for such products and services (a Quote) and returning it to Smileyscope, or issuing a Purchase Order or payment of an invoice relating to the Quote.
(b) The Quote(s) (including any Special Terms), together with these Terms and Conditions, and our End User Licence Agreement (available online at https://www.smileyscope.com/eula) (the EULA), forms the binding agreement between the parties (the Agreement).
(c) In the event of an inconsistency between the parts of the Agreement, the part listed first in clause 1.1(b) above prevails.
1.2 Term: This term of this Agreement (Term):
(a) starts on the earlier of: (1) the date Smileyscope receives the signed Quote; or (2) the date Smileyscope delivers the Smileyscope Products or commences providing the Smileyscope Services (Start Date); and
(b) unless terminated earlier in accordance with the terms of this Agreement, ends at the end of the Initial Term or any applicable Extension Terms.
(a) At least 90 days’ prior to the end of the then-current Initial Term or Extension Term, we will send you a quote for a further 12-month term (or such term as agreed by the Parties in writing) (New Quote).
(b) Upon your issue of a new Purchase Order or payment of an invoice relating to the New Quote, this Agreement will be extended for the term set out in the New Quote (Extension Term).
(c) If you do not issue a new Purchase Order or pay the relevant invoice by the due date under clause 1.3(b), you must comply with the return obligations in clause 10.2 on expiry of the Agreement. If you do not return the Smileyscope Products in compliance with clause 10.2, then without limiting our other remedies under this Agreement: (1) the term of this Agreement is taken to be extended until the date the Smileyscope Products are returned to Smileyscope; and (2) Smileyscope may issue additional invoices for the Extension Term on a pro-rata basis based on the Fees set out in the New Quote.
(d) All provisions of this Agreement shall remain in effect upon any extension unless modified in accordance with the terms of this Agreement.
1.4 Changes to these Terms and Conditions:
Smileyscope may change or update these Terms and Conditions at any time for security, legal, best practice, regulatory or commercial reasons. We will notify you of these changes when we make them. Your continued use of the Smileyscope Products and Services following any changes to these Terms and Conditions constitutes Your complete and irrevocable acceptance of any and all such changes. If future changes are unacceptable to You, You must stop using the Smileyscope Products and Services.
2. Licence and Product Use
2.1 Ownership: You acknowledge that Smileyscope (or its Licensors) own:
(a) the Smileyscope Products and Services; and
(b) all Intellectual Property Rights associated with the Smileyscope Products and Services, including all Documentation and any improvements or modifications created or developed by Smileyscope or (unless agreed to the contrary in any separate agreement between the parties, including any research and development agreement) you.
(a) Your licence to use the Smileyscope Products and Services is governed by this Agreement. You must require only Authorized Users use the Smileyscope Products.
(b) You must only use, and must require your Authorized Users only use, the Smileyscope Products strictly in accordance with this Agreement (including the EULA) and any applicable Documentation, manuals and written provided by Smileyscope.
2.3 Responsibility: You are solely responsible for the manner in which you or your Authorized Users use the Smileyscope Products and Services and agree that Smileyscope will have no liability to you in respect of any and all Loss suffered or incurred by you directly or indirectly arising from or in connection with your failure to strictly comply with this clause 2.
3.1 Delivery and Risk:
(a) Smileyscope will deliver the Smileyscope Products to you within 4-6 weeks of receiving the signed Quote under 1.2(a)(1), or as otherwise agreed in the Quote.
(b) Risk in all Smileyscope Products passes to you on delivery.
3.2: Bailee: You acknowledge that you:
(a) do not obtain any title to any Smileyscope Products; and
(b) hold all Smileyscope Hardware on lease as bailee of Smileyscope for the duration of the Term, and at expiry or termination of the Term, will comply with the return obligations in clause 10.2.
4. Additional Obligations
4.1 General Obligations: You must:
(a) take reasonable care in the use and secure storage of the Smileyscope Products, including but not limited to keeping all Smileyscope Products in appropriate storage conditions in an appropriately secure area accessible only to authorized personnel;
(b) keep complete and current records for all received, used and returned Smileyscope Products;
(c) cooperate with Smileyscope and comply with any reasonable instructions provided by Smileyscope from time to time;
(d) install updates and new releases of the Smileyscope Products as required, in order to continue use of the Smileyscope Products;
(e) comply with all applicable law in relation to your use of the Smileyscope Products and Services;
(g) provide information and documentation relevant to the Smileyscope Products and Services that Smileyscope reasonably requires.
4.2 Export Control Laws: You agree that U.S. export control laws and other applicable export and import laws govern your use of the Smileyscope Products and Services. You agree that neither the Smileyscope Products and Services nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
4.3 Injunctions: In addition to any other remedies available to Smileyscope under this Agreement or at law, you acknowledge that in the event of any breach or threatened breach by you of this clause 4, damages alone will be an inadequate remedy and Smileyscope is entitled to an interim, interlocutory or permanent injunction or such other equitable remedy restraining you without showing or proving any actual damages sustained by Smileyscope.
5.1 You must pay Smileyscope all the Fees in accordance with this Agreement.
5.2 Smileyscope will invoice You for all Fees in accordance with the Fee schedule set out in the applicable Quote or provided by Smileyscope in accordance with clause 5.6.
5.3 You shall pay Smileyscope’s invoice (including any tax invoice), and all Fees are due and payable hereunder, within thirty (30) days of the issuing of such invoice or as otherwise agreed between You and Smileyscope. If you are exempt from specific taxes, you will provide proper certification of your tax-exempt status on our request.
5.4 If You opt for monthly payments, You must establish an automatic monthly draft or automatic credit card payments to Smileyscope’s bank account.
5.5 Smileyscope reserves the right to charge You interest at the rate of 2% per month on all overdue payments, calculated daily, from the due date for payment until paid in full. All Fees are non-cancellable and non-refundable.
5.6 Smileyscope may, no more than once per calendar year, increase the annual contracted Fees by up to the greater of: (a) 4%; or (b) a percentage equivalent to the CPI Change. This change will come into effect on Smileyscope providing you with a new Fee schedule in accordance with clause 11.
(a) A party (“the recipient”) must not, without the prior written approval of the other party (“the discloser”), make public or divulge either directly or indirectly to any person any Confidential Information of the discloser which it or they may acquire or come into possession of or become aware of in connection with this Agreement. The recipient shall not use any such Confidential Information of discloser except for purposes of this Agreement.
(b) The recipient may disclose Confidential Information to its directors, officers, employees, consultants and advisers who have a need to know the Confidential Information and are subject to obligations to protect the Confidential Information no less strict than those contained herein for the purpose of the recipient exercising its rights under and/or performing this Agreement.
(c) The recipient must use its best endeavours to ensure that any person to whom it discloses Confidential Information under this Agreement does not disclose the discloser’s Confidential Information.
(d) This clause 6 does not apply where Confidential Information:
(1) is or becomes public knowledge (other than as a result of a breach of this Agreement); or
(2) is required to be disclosed to a person or a court as required by law (provided the recipient must provide prior written notice thereof to the discloser to the extent legally permissible); or
(3) is already in the possession of recipient at the time or receipt or disclosure from the discloser (other than as a result of a breach of confidentiality); or
(4) is independently developed by the recipient without the use of or reference to the Confidential Information of the discloser.
7.1 Indemnity: You shall at all times be solely responsible for the delivery of clinical services provided. Both Parties shall indemnify, defend and hold harmless the other Party and its affiliates and its and their respective employees, officers, directors, agents and representatives from and against any third party claims, demands, suits, actions, expenses, liabilities, losses and damages arising from or related to its: (i) gross negligence; (ii) intentional misconduct; (iii) material breach of this Agreement; or (iv) any assertion that any equipment, software, or other item or material provide by Smileyscope hereunder, including the Products or Services, infringes or misappropriates the patent, trademark, copyright, or other intellectual property right of a third party. The provisions of this section shall survive any expiration or termination of this Agreement.
7.2 Clause 7.1 does not apply to the extent that the Loss is caused or contributed to by the other Party’s gross negligence or unlawful conduct.
7.3 The indemnified party shall provide the indemnifying party with prompt written notice of the claim giving rise to the indemnification obligation and shall reasonably cooperate with the indemnified party. The indemnifying party shall not enter into any settlement that admits fault, wrongdoing or damages without the indemnified person’s written consent.
8. Limited Warranty
8.1 Product Service Package
Smileyscope’s Product Service Package comprises the following:
(a) provision of a new, upgraded virtual reality headset (forming part of the Smileyscope Hardware) when available and logistically feasible;
(b) the Hardware Limited Warranty and Software Limited Warranty in clauses 8.2 and 8.3 below;
(c) maintenance, repairs and replacement parts as set out in clause 8.6 below; and
(d) provision of standard staff training and education .
Please note the limited warranty set out under this clause 8 is in addition to the terms set out in clause 9.2 (Non-Excludable Provisions) below.
8.2 Hardware Limited Warranty:
(a) During the Term, Smileyscope warrants its hardware products will be free of defects in materials and workmanship upon delivery (subject to the exclusions and limitations set forth in this clause 8).
(b) If a product proves to be defective in material or workmanship, or damaged by an authorized user during the warranty period, Smileyscope’s sole obligation is to, at its reasonable discretion, repair or replace the product in accordance with the procedures below. Repaired and replacement products may be or include refurbished or remanufactured parts.
(c) Replacement parts are outlined below. Any replacement item assumes the remaining warranty period of the original product.
(d) Smileyscope provides no warranty for any third party hardware or software included with any product or later acquired nor for any beta or other pre-release versions of any products.
(e) Lost or stolen equipment is the responsibility of the Purchaser and Smileyscope reserves the sole right to approve / disapprove any claims arising under this provision.
Replacement Parts List
8.3 Software Limited Warranty
(a) During the Term, Smileyscope warrants that its software, as and in the form originally provided with any Smileyscope Hardware product under warranty, will substantially conform to Smileyscope’ specifications for such software upon arrival at the Purchaser (subject to the exclusions and limitations set forth in this clause 8).
(b) Smileyscope’s sole obligation under this warranty is limited to making reasonable efforts to ensure such conformity and to supply you with a corrected version of the software within a reasonable period of time after you have notified Smileyscope of any such nonconformity.
(c) Smileyscope does not warrant that the operation of any software will be uninterrupted, glitch or error free or that functions contained in the software will operate in the manner or combinations which may be selected for use by you or otherwise meet your requirements.
(d) This limited software warranty will be void if the software is modified without the prior written approval of Smileyscope, used in violation of your license or is used outside of the recommended parameters or equipment. Smileyscope does not provide any warranty or support for any third party, open source or other software.
8.4 Smileyscope Support:
(a) Smileyscope will provide telephone and/or email based support for the Term, subject to the limitations and exclusions set out in this clause 8.
(b) All support shall be limited to making reasonable efforts to resolve Smileyscope technical issues.
(c) Telephone support will be limited to Smileyscope’ regular business hours, and Smileyscope will respond to inquiries within 72 hours and/or within the next 3 business days.
8.5 Warranty Exclusions: The limited warranties and support services in clauses 8.2-8.3:
(a) Do not apply if the product has been damaged by accident, misuse or abuse.
(b) Do not include repair of or response to failures, problems or defects caused by: unauthorized attachments to any Smileyscope product; unsuitable physical or operating environment; maintenance or repair by anyone other than Smileyscope or the Smileyscope authorized dealer that sold you the product; use of the product outside of its specifications, documentation or license; the use of supplies, parts, materials, software, or interfaces not furnished, authorized or recommended by Smileyscope. If the product, including any software has been opened, tampered with, modified or altered in any way without written authorisation by Smileyscope.
(c) Will only apply where the internal shock and/or moisture sensor of a product is intact or below the specific shock and/or moisture levels. If any shock sensor and/or moisture sensor is broken, tampered with or above the safe level, Smileyscope will notify the customer who will become liable for parts and labor used during repair.
(d) Will only apply to products manufactured by, or for, Smileyscope, and that can be identified by the Smileyscope serial number as originally affixed to the product (which may include displays on a screen or product box). Any modification to the Smileyscope serial number tag or its attachment to the product shall immediately void this warranty and any obligation to provide support services for such product.
(e) Exclude computer hardware, third party or open source software or operating system or network or internet access issues.
(f) Do not apply to consumables provided for use with the product.
(g) Are non-transferable and subsequent owners of transferred products must contact Smileyscope to establish if the equipment is eligible for an extended warranty.
8.6 Maintenance, Repairs and Replacement of Product: If any Smileyscope Hardware is damaged or lost at any time:
(a) You must notify Smileyscope as soon as reasonably practical of the damage or loss and cooperate with and provide all required information to Smileyscope.
(b) On receiving all information required from you under (a), Smileyscope will replace or repair (at its option) the damaged or lost parts, with replacement and shipping handled in accordance with the Replacement Parts List. Replacement and shipping will be free of charge unless an annual limit applies to the relevant part in the Replacement Parts List. If an annual limit is exceeded, you must pay all costs incurred by Smileyscope with replacing or repairing the damaged or lost parts, including delivery and the insurance excess.
(c) Where the Replacement Parts List specifies you must ship the damaged Product back to Smileyscope, you must follow the return process set out in clause 8.7 below.
8.7 Warranty or Maintenance/Repair Process
(a) For information on obtaining warranty or support services, call Smileyscope customer support at +1 888 300 7117 or contact us via email at firstname.lastname@example.org.
(b) In order to evaluate a warranty service request, Smileyscope requires the following information:
(1) the Smileyscope serial number of the product; a detailed description of the problem; customer name and contact information;
(2) product location and operating conditions;
(3) a copy of the purchase documents; and
(4) sufficient information and authorisation.
(c) Products may not be returned to Smileyscope without first obtaining a Return Authorization Number ("RAN") number from Smileyscope. Prior to providing an RAN, Smileyscope may require you to undertake basic troubleshooting. If Smileyscope determines that the product may be defective or damaged and necessitates a return to Smileyscope for service, you will be given an RAN number and instructions for return of the product and must comply with those instructions. Smileyscope is not responsible for any unauthorized returned product, i.e. one for which an RAN number has not been issued by Smileyscope or for which warranty coverage is not available under the terms hereof.
(d) Warranty service requires all authorized returns be shipped to Smileyscope (at the address indicated in connection with the RAN) prepaid and insured. For products sold and located within the United States and Australia, Smileyscope will pay for return shipping of the repaired or replacement product back to the customer. For products located outside the United States and Australia, the customer shall pay for such return shipping, including without limitation customs charges, duties, insurance and related costs.
(e) Products being returned are only to be shipped in Smileyscope approved shipping containers. Your original box and packaging materials are approved and should be kept for moving and/or shipping your product. Original and approved packaging may also be purchased from Smileyscope. Smileyscope shall have no liability nor responsibility for warranty service to any product that is not shipped in a Smileyscope approved shipping container or that is damaged from incorrect packaging or damage during shipping.
(f) For products not covered under warranty, Smileyscope at its sole discretion may charge you a co-pay for repairs or replacement parts necessary up to the total cost of $500 per device plus the reasonable cost of shipping and insurance.
8.8 Limitation of Remedies and Liability/Exclusion of Damages
(a) The exclusive remedy, and Smileyscope’ sole and exclusive liability, for any defective product is limited to the repair or replacement of the defective product. Smileyscope shall have a reasonable time after determining that a defective product exists to repair or replace a defective product. Smileyscope’s entire liability for any product is limited to the actual purchase price of the product. This limitation applies even if Smileyscope cannot or does not repair or replace any defective product and your exclusive remedy fails of its essential purpose.
(b) The limitation of remedies under this clause and exclusion of loss under clause 9.3 also applies to claims against any suppliers or dealers of Smileyscope. Smileyscope and its suppliers' and dealers' limitations of remedies are not cumulative. Such suppliers and dealers are intended beneficiaries of this limitation. Smileyscope is not liable for any claim by or against you arising from a third party claim.
9. Disclaimers; Limitation of Liability
9.1 Disclaimer: THE SMILEYSCOPE PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". ALL EXPRESS OR IMPLIED GUARANTEES, WARRANTIES, REPRESENTATIONS, OR OTHER TERMS AND CONDITIONS RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER THAT ARE NOT EXPRESSLY CONTAINED IN THIS AGREEMENT ARE HEREBY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE). THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS HEREBY DISCLAIMED AND DOES NOT APPLY TO THIS AGREEMENT. SUBJECT TO CLAUSE 9.2 YOU ACKNOWLEDGE THAT SMILEYSCOPE CANNOT AND DOES NOT WARRANT THAT ACCESS TO SMILEYSCOPE'S PRODUCTS AND SERVICES WILL BE CONTINUOUS AND FAULT FREE, THAT ANY DEFECT WILL BE CORRECTED WITHIN A SPECIFIC TIME FRAME, OR THAT ANY SMILEYSCOPE HARDWARE, SMILEYSCOPE SERVICE, OR INFORMATION FROM SMILEYSCOPE IS ON TIME, ACCURATE, RELIABLE, OR WITHOUT DEFECT.
9.2 Non-Excludable Provisions:
(a) Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any applicable law which cannot lawfully be excluded or limited.
(b) If any guarantee, warranty, term or condition is implied or imposed in relation to this agreement under any applicable legislation and cannot be excluded (a Non-Excludable Provision), and Smileyscope is able to limit your remedy for a breach of the Non-Excludable Provision, then the liability of Smileyscope for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
(1) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(2) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
9.3 Exclusion of Loss: TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT, SMILEYSCOPE WILL NOT BE LIABLE FOR LOSSES OF ANY KIND, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), IN EQUITY, UNDER STATUTE, OR ON ANY OTHER BASIS.
9.4 Liability Cap: Subject to clauses 9.2 and 9.3, and to the maximum extent permitted by law, the maximum aggregate liability of Smileyscope for all claims under or relating to this agreement or its subject matter, whether in contract, tort (including in negligence), in equity, under statute, or on any other basis, is limited to the amounts paid by you to Smileyscope in the preceding twelve (12) months.
9.5 Indemnification: Each party shall indemnify, defend, and hold the other party and its affiliates, and its and their officers, employees, and agents harmless from and against all third party claims, damages, losses, penalties, and expenses (including reasonable attorneys’ fees) to the extent arising from or related to such party’s breach of this Agreement or such party’s negligent acts or omissions.
10.1 Termination of this Agreement: You may terminate this Agreement upon 90 days prior written notice to Smileyscope, and upon termination you shall have no further payment obligations hereunder and you shall receive a refund for any prepaid but unused fees minus any discounts such as upfront payment, volume and duration discounts.
Either Party may terminate this Agreement immediately by notice to the other party if:
(a) the other Party commits a material breach of any of its obligations under this Agreement and does not remedy that breach within fourteen (14) days of receipt of a notice from the non-defaulting Party specifying the breach and requiring the breach to be remedied; or
(b) an Insolvency Event occurs in relation to the other Party;
10.2 Consequences of Termination or Expiry: Upon termination or expiration of this Agreement:
(a) Smileyscope will be entitled to payment of all outstanding Fees for the Smileyscope Products and Services for the applicable Initial Term or Extension Term that has been terminated or expired.
(b) Within 7 days of the termination or expiry of this Agreement (unless otherwise agreed by the Parties in writing) you must return all Smileyscope Products to Smileyscope:
(1) to our usual place of business or such other location as notified by us in writing; and
(2) in good working order and in the same clean condition the Product was in when delivered to you (excluding ordinary fair wear and tear excepted).
(c) If there is any damage to the returned Smileyscope Products, Smileyscope at its sole discretion may charge you a co-pay for repairs necessary up to the total cost of $500 per device.
(d) Where the Smileyscope Products are not returned, and/or you cannot provide a tracking number demonstrating return within 30 days of the termination or expiry of the Term, Smileyscope may charge you a fee for late return. The maximum fee will be the straight-line depreciated price of the Product from when the Product was received by You, assuming a 3-year useful lifespan of the Product.
(c) Subject to any legal obligation to retain medical records, you must return, destroy, or permanently de-identify (at Smileyscope’s request) all of Smileyscope’s Confidential Information in your possession or control within 10 Business Days.
10.3 Survival: The rights, obligations and indemnities in clauses 2.1, 2.3, 3.2, 4.2, 4.3, 6, 7, 9, 10.2, 10.3 and 12.4, and any other obligations which are expressed to, or by their nature, survive expiry or termination of this Agreement will survive the termination or expiry of this Agreement. Termination or expiry of this Agreement does not affect any rights which accrued before the date of expiry or termination.
Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a Party under this Agreement must be in legible writing and in English addressed as shown below:
(a) if to Smileyscope:
Address: 701 Tillery Street #12 (Suite 1422), Austin TX 78702
Attention: Smileyscope Operations Department
(b) if to you, to the address set out in the details in the Quote; or
(c) to the address last notified to the sender by any Party by notice.
12.1 Relationship between the Parties
Nothing in this Agreement:
(a) may be deemed to constitute an employment relationship, a partnership, joint venture, agency or other legal relationship between You and Smileyscope other than that of independent contractors; or
(b) authorises either Party to waive, undertake or incur any obligation for which the other Party may be responsible or to incur any liability on behalf of the other Party.
12.2 Force Majeure
(a) Notwithstanding any other provision of this agreement, Smileyscope will not be liable for any failure to perform its obligations under this agreement where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event.
(b) In the case of a Force Majeure Event, Smileyscope will use all reasonable efforts to minimise the effect of the Force Majeure Event and resume performance in accordance with this agreement as soon as possible.
If the whole or any part of a provision of this Agreement is void, unenforceable or illegal it is severed. The remainder of this Agreement continue to have full force and effect.
12.4 Governing law and disputes
This Agreement is governed by the laws of the State of Delaware, USA without respect to its conflict of laws provisions. The Parties hereby agree that any dispute arising under this Agreement, or in connection with any breach thereof, shall be finally resolved through binding arbitration conducted in accordance with the rules and procedures of JAMS by one (1) arbitrator appointed in accordance with said rules. Any such arbitration shall be held in Wilmington County, Delaware. The arbitrator shall determine what discovery will be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided the arbitrator shall permit such discovery as the arbitrator deems necessary to permit an equitable resolution of the dispute. The costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the Parties, and each Party shall bear its own costs and attorneys’ and witness’ fees incurred in connection with the arbitration. Any award may be entered in a court of competent jurisdiction for a judicial recognition of the decision and applicable orders of enforcement.
(a) Waiver of any right, power, authority, discretion or remedy arising on a breach of this Agreement must be in writing and signed by the Party granting the waiver.
(b) A Party may not rely on any conduct of another party as a defence to exercise of a right, power, authority, discretion or remedy by that other Party and no delay or failure to exercise any right, remedy or provision herein shall constitute a waiver thereof.
(c) This clause 12.5 may not itself be waived except in writing.
12.6 Assignment and subcontracting
(a) Smileyscope may assign, without consent, our rights under this Agreement (in whole or in part) to a third party as part of the merger, acquisition, reorganisation, change of control or sale of the whole or a substantial part of Smileyscope’s business, in each case whether by operation of law or otherwise. You must not assign your rights under this Agreement (in whole or in part) without the prior written consent of Smileyscope. Any attempted assignment in violation of the immediately preceding sentence shall be null and void.
(b) Smileyscope may sub-contract for the performance of any part of its obligations under this Agreement.
12.7 Entire agreement
This Agreement supersedes all previous agreements (including any Product Evaluation Agreement between the Parties) in respect of its subject matter and contains the entire agreement between the Parties with respect to such subject matter.
Smileyscope represents and warrants that neither it nor any of its employees or agents performing Services hereunder are or have been excluded, terminated, suspended, or debarred from a federal or state health care program or from participation in any federal or state procurement or non-procurement program and that neither it nor its employees or agents is listed and they will not, during the term of this Agreement, become listed on the databases at https://exclusions.oig.hhs.gov/ or https://sam.gov/content/exclusions or any state exclusions or sanctions databases. Smileyscope will immediately notify You of any change in the status of the representations and warranties in this section. Any breach of this section shall give You the right to terminate this Agreement immediately for cause.
12.9 Compliance with Laws.
(a) The parties enter into this Agreement with the intent of conducting their relationship in full compliance with applicable federal, state, and local law, including the Medicare/Medicaid Anti-Fraud and Abuse Amendments and federal and state physician self-referral laws. Notwithstanding any unanticipated effect of any of the provisions herein, neither party will intentionally conduct itself under the terms of this Agreement in a manner to constitute a violation of these provisions. The parties hereto acknowledge and agree that this Agreement and the arrangement contemplated and compensation to be paid hereunder: (i) has been negotiated on an arm’s-length basis pursuant to bona fide bargaining between the parties; (ii) is commercially reasonable; (iii) is commensurate with fair market value; (iv) is not in return for, does not vary with, or take into account or reflect the volume or value of referrals or other business generated between the parties; and (v) is consistent with, necessary for, and does not exceed the reasonable and legitimate business purposes of the parties.
(b) You acknowledge and agree that Smileyscope’s products and services constitute a ‘wellness platform’ to assist individuals in their own health and wellness management. You must comply with all applicable laws and regulations for your relevant jurisdiction in relation to Your use of the Smileyscope Products and Services.
Pursuant to Section 1395(X)(V)(1)(A) of Title 42 of the United States Code, until the expiration of four (4) years after the furnishing services under this Agreement, both parties shall make available, upon written request of the Secretary of the United States Department of Health and Human Services, or any other duly authorized representative, a copy of this Agreement and such books, documents, and records as are necessary to certify the nature and extent of the costs of the services provided under this Agreement.
12.11 Excluded Party Law.
Smileyscope represents and warrants that neither it nor its subcontractors is excluded from receiving or being a party to any Federal contract or subcontract pursuant to any Federal statute, rule, regulation, executive order or government instruction. Notwithstanding any other provision to the contrary, Smileyscope agrees to indemnify and hold harmless you, your directors, officers, employees, agents and affiliates from and against any and all damages, claims, costs, expenses (including reasonable attorneys’ fees), and liability related to Smileyscope being an excluded party from receiving or being a party to any such Federal contract or subcontract during the term of this Agreement.
In its performance of this Agreement, Smileyscope will not discriminate against your patients or any employee or applicant for employment because of race, color, creed, religion, sex, sexual orientation, marital status, age, national origin, ancestry, citizenship, arrest record, conviction record, disability, genetic information, membership in the national guard, state defense force or any other reserve component of the military forces of the United States, use or nonuse of lawful products off employer’s premises during nonworking hours, or other legally protected status, as required by law.
Smileyscope shall keep in full force and effect at all times during the term of this Agreement (i) workers’ compensation as required by applicable law, (ii) Commercial General Liability insurance with a limit of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate for bodily injury and property damage
Authorized Users mean your Personnel members who have:
(a) been authorized by you to use the Smileyscope Products and Services; and
(b) have undergone the required Smileyscope Products and Services training specified by Smileyscope.
Confidential Information means, in relation to a party, all information of a confidential or proprietary nature relating to that party or its business which by its nature is confidential, whether verbal, written or recorded by electronic means, including this Agreement, and specifically includes technical information (including, in the case of Smileyscope, all technical information about the Products), financial information, marketing plans, business plans, trade secrets or information about suppliers or customers of a party.
CPI Change means the difference between the latest published Consumer Price Index All Items Index number as published by the United States Bureau of Labor Statistics for the US City Average and the equivalent number published 12 months earlier, expressed as a percentage of the earlier index number.
Documentation means technical and operational documentation (if any) supplied by Smileyscope to you in respect of the Smileyscope Products and Services, as amended by Smileyscope from time to time.
Extension Term means the period the Term is extended for in accordance with clause 1.3(b) or 1.3(c)(1) as applicable.
Fees means the fees and other charges payable by You to Smileyscope for the Smileyscope Products and Services as detailed in an applicable Quote or as updated by Smileyscope in accordance with clause 5.6.
Force Majeure Event means an act, omission, cause or circumstance over which Smileyscope could not have reasonably exercised control including (a) acts of God; (b) fire, explosion, or unusually severe weather; (c) war, invasion, riot, terrorism, or other civil unrest; (d) governmental laws, orders, restrictions, actions, embargo or blockages; (e) national or regional emergency; (f) strikes or industrial disputes at a national level which directly impact Smileyscope’s performance under this Agreement; (g) epidemics or pandemics; (h) telecommunication failures; or (i) other similar cause outside of the reasonable control of Smileyscope.
Initial Term means the period set out in the Quote (minimum of 12 months).
Insolvency Event occurs where either party:
(a) ceases or takes steps to cease to conduct its business in the normal manner;
(b) enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(c) is unable to pay its debts when they are due;
(d) has a liquidator or provisional liquidator appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party, except as part of a reconstruction whilst solvent; or
(e) has an order made or a resolution passed for its winding up.
Intellectual Property means all industrial and intellectual property rights throughout the world, including all copyrights, designs (whether or not registrable), rights in respect of inventions or discoveries, (whether or not patentable), trademarks, trade names and brand names (whether or not registrable), confidential information, and software, programs, codes and ideas (whether or not patentable, copyrightable or constituting trade secrets or know-how) together with the right to apply for registration of any of the foregoing.
Loss means loss, damage, cost, liability, or expense however incurred (including liability to a third party).
New Quote has the meaning given to it in clause 1.3(a).
Non-Excludable Provision has the meaning given to it in clause 9.2.
Parties means you and Smileyscope, and yours or our respective successors and permitted assigns and Party means either one of us.
Personnel means an officer, employee, agent or contractor.
Quote means a quote issued by Smileyscope for Smileyscope Products and Services as described in clause 1.1, including New Quotes as applicable.
Replacement Parts List means the Replacement parts list attached to a Quote, or as otherwise updated and provided to you by Smileyscope.
Smileyscope Hardware means the custom designed virtual reality headset with an embedded touch screen device provided by Smileyscope, as updated or replaced from time to time.
Smileyscope Products means:
(i) the Smileyscope Hardware; and (ii) the Smileyscope Software.
Smileyscope Products and Services means the Smileyscope Products and the Smileyscope Services.
Smileyscope Software means the customised Android user interface and the Smileyscope virtual reality applications, including the animated virtual reality content as developed and updated by Smileyscope from time to time for the Smileyscope virtual reality applications and any new releases or updates provided under this agreement.
Smileyscope Services means the provision of the summary reports and onsite presentations, training and demonstrations, or other Smileyscope Product-related services, to the extent any of the foregoing are provided by Smileyscope to you.
Special Terms means any additional terms identified in a Quote as ‘Special Terms’.
Term means the Initial Term plus any Extension Term(s), unless and until earlier terminated in accordance with this Terms and Conditions.
We, us, our or Smileyscope means Smileyscope Holding Inc, 701 Tillery Street #12 (Suite 1422), Austin TX 78702.
You means the legal entity leasing and/or purchasing the Smileyscope Products and Services as set out under the “Customer Details” in the Quote.
In this Agreement, unless inconsistent with the context:
(a) words denoting the singular include the plural and vice versa;
(b) words denoting any gender include all other genders;
(c) words denoting individuals shall include corporations, firms, unincorporated bodies, government authorities and instrumentalities;
(d) any headings are for convenience and ease of reference only and does not affect the interpretation of this Agreement;
(e) a provision of this Agreement will not be construed adversely to the Party that drafted it;
(f) a reference to this Agreement includes this Agreement as amended, varied, novated, supplemented or replaced from time to time;
(g) a reference to legislation or a provision of legislation includes:
(i) all regulations, orders or instruments issued under the legislation or provision; and
(ii) such legislation or provision as amended or replaced from time to time; and
(h) a reference to “includes” and “including” is to be construed without limitation.