End User Licence Agreement

version 2.0 - Last updated: 03/08/2023

The JawSpace App includes tools that help users manage their Temporomandibular dysfunction ("TMD") and teeth grinding or clenching. The App is downloadable from the Apple App Store and Google Play and can be installed on a compatible smartphone or tablet. The App is not a healthcare or medical advice service and we do not represent that use of the App will result in the diagnosis, detection, treatment, cure or prevention of TMD. We do not provide any personal TMD recommendations or treatment plans through the App or otherwise.

1. About this End User Licence Agreement

1.1. Thank you for downloading the JawSpace App.

1.2. This End User Licence Agreement ("Agreement") sets out the terms and conditions upon which you may download, install, access and operate the App.

1.3. Each time you use the App you shall be deemed to have accepted the latest version of this Agreement, and agreed to be bound by, and to comply with, this Agreement.

1.4. You may download, install, access and operate the App if you are over the age of 16 and able to enter into legally binding agreements.

1.5. If you do not accept the terms and conditions of this Agreement, you may not use the App or any part of it. We may amend and/or replace the terms and conditions of this Agreement from time to time. We will always upload the latest version of this Agreement to our website at https://www.jawspace.app/. If you are a registered App user, we will notify you of any updates to this Agreement by email to the email address that you used when registering, or to any updated email address on your App account.

2. Parties to this Smartphone App Licence Agreement

2.1. This Agreement is entered into between you (a person who downloads, installs, accesses and/or operates the App) ("you" and "your") and JawSpace Pty. Limited ABN 29 663 745 524, a company incorporated in Australia (referred to herein as "we", "our" and "us"), and not with Google Inc., Apple Inc. or any other third party.

3. About the JawSpace App

3.1. The App can be used by you to obtain general information about managing Temporomandibular dysfunction ("TMD"). It includes tools that you may be able to use to help you manage TMD.

3.2. The App is owned by us and may be installed on Apple iOS and Android operating systems and any other compatible internet-enabled devices approved by us from time to time. The App requires an active internet connection. You are responsible for all telecommunications and data charges that you incur in connection with your use of the App.

3.3. From time to time we may automatically update the App to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App.

4. How to contact us

4.1. Any general questions, suggestions or complaints with respect to the App may be sent to us via email to info@jawspace.app. For technical issues that you may encounter with the App, please email us at help@jawspace.app.

5. Our Intellectual Property Rights

5.1. As between you and us, we are the sole owner of all Intellectual Property Rights in the App and any text, images and/or audio-visual content that you may obtain from the App, and any updates, upgrades, enhancements, adaptations and derivative works thereto (collectively, "JawSpace IP"). In this Agreement, "Intellectual Property Rights" means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.

5.2. You have no rights in the App or in any JawSpace IP, other than the rights temporarily granted to you pursuant to the Licence set out in clause 6.1.

5.3. As between you and us, in the event of any third party claim that the App or your installation and/or use of the App infringes that third party's Intellectual Property Rights, we, not Google Inc., will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. However, you will be solely responsible for any such claims caused by the use of the App by you with software or hardware not approved by us, or where caused by your breach of this Agreement.

6. Your Licence to download, install and use the App

6.1. We grant you a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable licence to download, install and operate the App for non-commercial, personal purposes only and only on any approved smartphone, tablet or other device that you own or control that meets our minimum compatibility requirements for the App ("Licence"). You may not make any use of the App except as permitted by the Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our Intellectual Property Rights in the App. Without limiting the foregoing provisions of the Licence, you must not, under any circumstances, sell or resell access to the App or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicense, copy or duplicate the App or any content you obtain via the App. In addition, you must not, nor may you permit any person to:

(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, license, creative derivative works from or enhance the App and/or any content in the App (except as expressly permitted by non-excludable copyright law);

(b) collect or harvest any information or data from the App or our systems or attempt to decipher any transmissions to or from the servers running the App;

(c) do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights or those of our licensors;

(d) use the App in any way that infringes our Intellectual Property Rights or the rights of any third party;

(e) collect or access any information about other users of the App; or

(f) take any steps to circumvent any technological protection measure or security measures in the App.

6.2. You must not use the App or any part of it in any way which is in breach of this Agreement, or any statute, regulation, law or legal right of any person.

7. Termination

7.1. The Licence is conditional upon your continued compliance with:

(a) this Agreement;

(b) our Data Processing Agreement; and

7.2. We may terminate the Licence and this Agreement if you do not comply with all or any of the provisions, terms, conditions, laws and regulations referred to in clause 7.1.

7.3. You may terminate the Licence and this Agreement at any time by deleting the App from your smartphone.

7.4. Upon termination of this Agreement:

(a) the Licence immediately terminates and you must cease to use the App; and

(b) you must delete all copies of the App in your possession and control,

without prejudice to any other of your or our rights or remedies accrued prior to termination.

8. Accessing the App

8.1. You acknowledge that your use of the App may not be error free and that your use of the App may be interrupted. The App may be unusable while we are conducting maintenance of the App, or any related software or server, or any part thereof, or as a result of any telecommunications failure or fault, if your device loses internet connectivity or as a result of other matters beyond our reasonable control. To the extent possible by law, we shall not have any liability in respect of any of the foregoing matters.

9. Privacy Policy

9.1. Please see our privacy policy accessible at www.jawspace.app. Your use of the App constitutes acceptance of our privacy policy. Our privacy policy is incorporated herein by reference.

10. Maintenance and support

10.1. We will provide any maintenance and support services with respect to the App, in our absolute discretion and as required under applicable law. Neither Apple or Google have any obligation whatsoever to furnish any maintenance or support services with respect to the App.

10.2. If we agree to provide maintenance and support services with respect to the App, we will publish details of our maintenance and support services on our website.

11. Warranty and Product Claims

11.1. You agree that as between us and Google Inc., and as between us and Apple, we are solely responsible for any product warranties pertaining to the App, whether express or implied by law, to the extent not otherwise effectively disclaimed and excluded hereunder.

11.2. You and us each acknowledge that as between you and us, we are responsible for addressing any product warranty claims that you may have relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims made in respect of the App; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.

12. User Content

12.1. We do not accept liability in relation to any content displayed on the App that is entered into or uploaded into the App by you or any other user. The user who enters or uploads the content into the App is responsible for the legality of the content and for any claims arising in respect of it.

12.2. You warrant, agree and represent that in respect of all and any information, text, graphics, and other audio or visual material that you upload or enter into, the App ("Your Material"):

(a) you are fully entitled and authorised to upload and input Your Material into the App;

(b) you are fully entitled and authorised to transfer and disclose Your Material to us;

(c) you have obtained all necessary permissions, consents, rights, authorisations and licences required by applicable law for us to use, store and disclose Your Material for the purposes of providing the functionality of the App; and

(d) Your Material and our collection, use, storage and/or disclosure of Your Material by us for the purposes of providing the functionality of the App and for the purposes set out in our Privacy Policy will not breach any applicable law or right of any person.

12.3. You are solely responsible for the accuracy, legality and quality of all of Your Material, and for obtaining all and any permissions, consents, rights, authorisations and licences necessary for us and our service providers who are authorised by us, to use, host, transmit, store and disclose Your Material in accordance with our Privacy Policy.

12.4. We will take reasonable steps to ensure that the information that we publish on the App (other than Your Material) is accurate and up-to-date. However, the information does not take into account your specific circumstances and is of a general nature only, may not take into account all of your relevant specific circumstances and may be limited to pre-programmed responses. Publication of any content on the App (whether text, graphics or audio-visual material) by us therefore does not constitute a recommendation, endorsement or any advice from us or any of our officers, employees or agents in respect of the content.

12.5. WE DO NOT REPRESENT OR WARRANT: (A) THE ACCURACY OR CORRECTNESS OF ANY INFORMATION WE PUBLISH ON THE APP ABOUT TMD WHETHER IN THE FORM OF TEXT, GRAPHICS OR AUDIO-VISUAL MATERIAL (OUR INFORMATION); OR (B) THE RELEVANCE OR SUITABILITY OF OUR INFORMATION, FOR YOU OR ANY THIRD PARTY. YOU MUST INDEPENDENTLY VERIFY THAT OUR INFORMATION IS ACCURATE, CORRECT, RELEVANT AND SUITABLE BEFORE RELYING ON IT. OUR INFORMATION DOES NOT CONSTITUTE MEDICAL ADVICE AND WE DO NOT PROVIDE MEDICAL ADVICE OR HEALTH DIAGNOSES OF ANY KIND. WE DO NOT PROVIDE, NOR DO WE REPRESENT THAT WE PROVIDE, ANY MEDICAL ADVICE OR HEALTH DIAGNOSES. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT ANY USE OF THE APP WILL RESULT IN THE TREATMENT, CURE OR PREVENTION OF TMD. YOU: (A) AGREE THAT YOU HAVE ASSESSED THE APP AS BEING SUITABLE FOR YOUR REQUIREMENTS; AND (B) AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU USE THE APP AT YOUR SOLE RISK.

13. Limitation of liability

13.1. We are responsible to you for foreseeable loss and damage caused by us: If we fail to comply with our obligations under this Agreement, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of this Agreement or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted this Agreement, both we and you knew it might happen. Subject to clause 13.5, to the extent that our liability is not otherwise lawfully excluded under this Agreement, our liability to you under and in connection with this Agreement and the App is capped, in respect of one or more events, in the aggregate, to AUD $100.00.

13.2. We are not liable for business losses. The App is for personal use only. Except in respect of any guarantees or warranties implied into this Agreement under non-excludable applicable law, we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

13.3. Please back-up content and data used with the App. We recommend that you back up any content and data used in connection with the App, to protect yourself in case of problems with the App.

13.4. We are not responsible for events outside our control. If our provision of the App or support for the App is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event.

13.5. Non-Excludable Loss. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for fraud. If you are a 'consumer' under this Agreement within the meaning of that term in the Australian Consumer Law, you will have the benefit of certain non-excludable guarantees in respect of this Agreement. We hereby limit our liability for a breach of each such non-excludable guarantee, at our option, to one or more of the following:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) if the breach relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

13.6. Any warranty against defects provided by us to you, in your capacity as a 'consumer' under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.

14. Export Control

14.1. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

15. Personal Property Securities Act

15.1. You are expressly prohibited from registering a security interest on the Personal Property Securities Register established under section 147 of the Personal Property Securities Act 2009 (Cth) in respect of the App or the Licence granted under this Agreement. Without limiting our rights, if you or any person on your behalf records a security interest of any type on the Personal Property Securities Register (as that term is used in the Personal Property Securities Act 2009 (Cth)), in respect of the App or the Licence, we may immediately terminate this Agreement and/or the Licence granted hereunder without notice.

16. General

16.1. All rights not expressly granted to us in this Agreement are expressly reserved by us.

16.2. We are giving you personally the right to use the App as set out above in this Agreement. You may not transfer the App to someone else, whether for money, for anything else or for free. If you sell or provide anyone else with any device on which the App is installed, you must first remove the App from it.

16.3. This Agreement constitutes the complete and exclusive statement of the agreement between you and us, superseding all proposals or prior agreements, oral or written, and all other communications between you and us relating to the Licence.

16.4. No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.

16.5. If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.

16.6. This Agreement shall be governed by the laws of New South Wales, Australia and you and us submit to the non-exclusive jurisdiction of the courts located in New South Wales and the courts of appeal therefrom in respect of any court proceedings concerning this Agreement or the App.

16.7. Unless the context requires otherwise, in this Agreement:

(a) Headings and underlinings are for convenience only and do not affect the construction of this Agreement.

(b) A provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.

(d) A reference to a statute or regulation includes amendments thereto.

(e) In the body of this Agreement, a reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement.

(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.

(g) A reference to time is to time in New South Wales unless expressly specified otherwise.

(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.

(i) The words “includes”, “including” and similar expressions are not words of limitation and shall be interpreted as if followed immediately by the words “but not limited to”.

(j) A reference to the singular incudes the plural and vice versa.

APPLE LICENSED APPLICATION END USER LICENSE AGREEMENT

Apps made available through the App Store are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this Licensed Application End User License Agreement (“Standard EULA”), or a custom end user license agreement between you and the Application Provider (“Custom EULA”), if one is provided. Your license to any Apple App under this Standard EULA or Custom EULA is granted by Apple, and your license to any Third Party App under this Standard EULA or Custom EULA is granted by the Application Provider of that Third Party App. Any App that is subject to this Standard EULA is referred to herein as the “Licensed Application.” The Application Provider or Apple as applicable (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.

a. Scope of License: Licensor grants to you a nontransferable license to use the Licensed Application on any Apple-branded products that you own or control and as permitted by the Usage Rules. The terms of this Standard EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application, unless such upgrade is accompanied by a Custom EULA. Except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the Licensed Application and, if you sell your Apple Device to a third party, you must remove the Licensed Application from the Apple Device before doing so. You may not copy (except as permitted by this license and the Usage Rules), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application).

b. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.

c. Termination. This Standard EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms.

d. External Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Standard EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.

e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

g. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

h. The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

i. Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and Apple shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Apple agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:

If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.

Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.