Smile Geni Heads of Agreement

Effective date: 04.10.2024

See Definitions

Definitions:

Account

means the digital account used by Customer to access the Web Service on the Website.

Agreement, Agreements

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.

Background IP

means the intellectual property rights owned by AORTA:

prior to the application of the Agreement; or
created by AORTA outside the scope of the Agreement.

Boilerplate Provisions

The following sections apply to the Agreement.

Further assurances

The parties agree to do everything required to give full effect to the Agreement.

Entire agreement

The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.

Electronic signature

The Agreement may be executed or entered into electronically.

Counterparts

The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.

Waiver

No right or obligation under the Agreement will be waived unless the waiver is explicitly waived in writing.

Binding on successors

The Agreement is binding on each party’s successors and permitted assigns.

Agreement expenses

The parties will cover their own expenses in preparing the Agreement documents.

Communication

Communication means any contractual communication in connection with the Agreement.

Compulsory Conditions

Compulsory Conditions means any condition, warranty or guarantee that the law does not permit to be limited or excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).

Confidential Information

Confidential Information means all information:

disclosed by a disclosing party to recipient party; or
which otherwise becomes to be known by the recipient party,
that could reasonably be regarded as confidential to the disclosing party, and includes information relating to:

technology, processes, products, inventions or designs used or developed by a disclosing party;
trade secrets and know-how;
customer lists and customer data; and
commercially sensitive information.

Consequential Loss

Consequential Losses means any kind of consequential, special, incidental or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive or exemplary loss or damages.

Contributed IP

Contributed IP means:

the intellectual property rights owned by Customer prior to the creation of the Agreement; and
the intellectual property rights created by Customer, or provided by Customer to AORTA, in the course of AORTA delivering the Web Service

Cover All Costs

Application of Indemnity

These indemnities are subject to the application of any Compulsory Conditions.
To the fullest extent permitted by the law, the indemnifying party indemnifies the indemnified party and its directors, employees, agents and assigns, for all Costs suffered by them in connection with each of the indemnity subjects.

Scope of Indemnity

The indemnified party must use reasonable endeavours to mitigate any Cost that arises that is subject to these indemnities.
These indemnities will not apply to Costs that are the subject of an indemnity exception, to the extent of that indemnity exception.

Separate indemnities

Each indemnity subject described in the clause will give rise to a separate indemnity in relation to that indemnity subject on the terms and conditions in this definition.

Indemnity details

These indemnities:

will survive the termination of the Agreement; and
will be additional to any contractual damages that the indemnified party might otherwise be entitled to claim.

Unless otherwise stated in the clause, the indemnified party may make a claim under these indemnities before any liability is crystallised, loss sustained or cost incurred.

Example Limitation Risk

Example Limitation Risks means any liabilities arising from the risks described below.

Risks from advice, including:

any fault or reliance connected with Information;
reliance on advice or opinions in whatever form;
incorrect technical advice or data; and
failure to provide correct information.

Risks from data, including:

breaches of privacy or data protection law;
breach of any law in connection with spam;
any privacy request, inquiry, investigation, complaint or enforcement procedure;
third party loss from the storage of third party data; and
an individual pursuing a right under privacy or data protection law connected with conduct, by Indemnifier in connection with the Agreement and Web Services.

Risks from software and network, including:

digital security issues like software vulnerabilities and malware connected with conduct;
inaccessibility of software or a network connected with conduct; and
the use of software for unlawful conduct, by Indemnifier in connection with the Agreement and Web Services.

Risks from intellectual property, including:

infringement of third party intellectual property; and
any third party claim or legal action for intellectual property infringement connected with conduct, by Indemnifier in connection with the Agreement and Web Services.

Risks from people and property, including:

death or injury connected with conduct; and
property damage connected with conduct, by Indemnifier in connection with the Agreement and Web Services.

Risks from the Agreement, including:

negligence;
third party reliance on the Agreement and Web Services resulting from conduct;
any act or omission;
delays; and
breaches, by Indemnifier in connection with the Agreement and Web Services.

Expansive Licence

The licensor grants the licensee a licence to the Intellectual Property Rights in the licence subject for the licence purpose. Unless otherwise specified in the clause the licence is:

irrevocable; transferrable; sub-licensable; perpetual; non-exclusive; royalty free; and

Where there is a licence exception, the licence of Intellectual Property Rights above will not apply to the subject of the licence exception.
The licence granted above will be subject to any terms and conditions specified in the clause.
The licensor warrants that the licensee’s legitimate exercise of the licensed Intellectual Property Rights for the licence purpose will not infringe the rights of any third party.
The licensor warrants that it will give and obtain any Moral Rights waivers and consents necessary to ensure the licensee can use the Intellectual Property Rights for the licence purpose without infringing Moral Rights.

GST Law

GST Laws means the A New Tax System (Goods and services Tax) Act 1999 (Cth).

Indemnifier

Indemnifier means the party or parties providing an indemnity under the clause using this definition, and if that is not applicable, the party or parties providing indemnities under the Agreement.

Independence

The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.

Information

Information means any information, opinion, communication or advice provided by AORTA during the provision of the Service.

Intellectual Property Rights

Intellectual Property Right means, with the exception of moral rights and other inalienable rights, all right, title and interest, in each of the following in Australia and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:

copyright; trade marks; trade names, brand names or indications of source, appellation or origin; inventions including patents, utility patents, patent applications, utility patent applications, and utility models; circuit layout designs; registered or unregistered designs; rights in databases; topography rights; design rights; plant variety and plant breeder rights; domain name registrations; confidential information, trade secrets, and know how; any other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967; any application for the registration of any of the above, and any rights to make such an application; any right to take action to enforce any of the above rights; and any licence from a third party to use any of the above.

Interpretation Principles

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:

Parties

For the parties to this document:

a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party; and
any reference to a trustee includes any substituted or additional trustee.
Grammatical Forms

In this document grammatical forms shall be interpreted as follows:

unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
‘including’, ‘includes’ or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
headings are for convenience and will not affect interpretation;
words in the singular will be taken to include the plural and also the opposite; and
‘$” means the Australian dollar.
Document References

For other documents referenced by this document:

a reference to a document will be to that document as updated, varied or amended;
a document referenced by the Agreement will not take precedence over the referencing document;
when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
where a “URL” is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid; and
any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource.
Rights and Obligations

In this document:

a reference to a party’s conduct includes omissions as well as acts;
if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
where a party is required to do ‘anything necessary’, this includes executing agreements and other legal instruments.
Definitions

For definitions in this document:

defined terms begin with capital letters and are not legally effective except to the extent described below;
where a definition contains rights and obligations, those rights and obligations will be incorporated by reference into the clause that uses the definition (referred to in the definition as ‘the clause’);
parameters for rights and obligations described by a definition are indicated with text in italics;
parameters in a definition inherit meaning from the equivalent concepts in a plain reading of the clause (including the defined term) using the definition; and
where a definition refers to rights and obligations as `these` or `this`, it is referring to rights and obligations created by the use of the definition in a clause.

Keep Secret

Obligation of confidentiality

The recipient party agrees to use the confidentiality subject solely for the confidentiality purpose.
The recipient party agrees to keep the confidentiality subject strictly confidential for the confidentiality period.

Standard of confidentiality

The recipient party agrees to:

use industry standard security techniques to prevent;
immediately notify disclosing party of;
comply with disclosing party’s reasonable instructions regarding; and
use its best endeavours to mitigate the effects of,
any unauthorised access to or use of the confidentiality subject for which The recipient party is responsible in whole or in part.

Permitted disclosures

the disclosure is necessary in order to enforce the Agreement; or
the disclosure is required by law or a binding order of a government agency or court, but The recipient party must not make such a disclosure without first notifying the disclosing party and giving the disclosing party a reasonable opportunity to object to the disclosure.
The recipient party may disclose the confidentiality subject to professional advisors, like lawyers or accountants, but only to the extent necessary for the confidentiality purpose.
The recipient party may disclose the confidentiality subject if it is, or subsequently comes to be, publicly known through no fault, act, or omission on the part of The recipient party;
The recipient party is also permitted to disclose the confidentiality subject if:
The recipient party must comply with disclosing the party’s reasonable requests with regard to any permitted disclosure.
The recipient party must use reasonable endeavours to ensure any person receiving the confidentiality subject through a permitted disclosure will treat it confidentially, and under substantially the same obligations as these confidentiality obligations.

Exceptions

Where there is a confidentiality exception, these confidentiality obligations will not apply to the extent of the confidentiality exception.

Damages not an adequate remedy

the value of keeping the confidentiality subject confidential is difficult to assess; and
damages would not be an adequate remedy for the irreparable harm that would be caused by the recipient party’s breach of these confidentiality obligations.
The parties agree that:
If the recipient party actually breaches or threatens to breach these confidentiality obligations, the disclosing party will be entitled to enforce the recipient party’s confidentiality obligations by injunctive relief or specific performance, in addition to any other available remedy. The disclosing party will not be required to prove actual or special damage in order to do so.

Mutual obligations

These confidentiality obligations may be mutual so that, if specified in the clause, each party to the Agreement may simultaneously be a disclosing party with respect to its own confidentiality subject and a The recipient party with respect to another party’s confidentiality subject.

Limited To The Legal Minimum

The limited party deals with the limiting party in respect of the limitation subject at its own risk. To the fullest extent permitted by law, limiting party excludes all liability (including Consequential Loss) to limited party for any liabilities connected directly or indirectly with the limited party and limiting party dealings in relation to the limitation subject, including liabilities based on:

contract law; tort law; or legislation,

and including liabilities caused by the limitation risks.

Where there is a limitation exception, this limitation of liability does not apply to the subject of the limitation exception.

Indemnities not limited

The foregoing limitation of liability will not apply to indemnities given by limiting party to limited party under the Agreement.

Implied Conditions

To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the limiting party and the limited party in respect of the limitation subject are excluded from the Agreement.

Compulsory Conditions

To the fullest extent permitted by the law, limiting party’s liability to the limited party for breaching a Compulsory Condition in relation to the limitation subject is limited to:

in a case where a breach is deemed to be a breach in respect of goods:

the replacement of the relevant goods or the supply of equivalent goods;
the repair of the relevant goods;
the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
the payment of the cost of having the relevant goods repaired; and

in a case where a breach is deemed to be a breach in respect of services:

the resupply of the relevant services; or
payment of a sum equal to the cost of resupplying the relevant services.

The limiting party will choose which of these options will apply.

Moral Right

Moral Rights means the rights commonly referred to as “moral rights”, such as the right of attribution, which are recognised in the jurisdiction of the Agreement.

New IP

New IP means the intellectual property rights created by AORTA for Customer under the Agreement, and does not include Background IP or Contributed IP.

Personal Information

Personal Information means any information that is categorised as ‘personal information’ or ‘personal data’ under privacy law, or is otherwise regulated by privacy law.

Restricted Licence

The licensor grants the licensee a licence to the Intellectual Property Rights in the licence subject for the licence purpose. Unless otherwise specified in the clause the licence is:

revocable; non-transferrable; unsublicensable; and non-exclusive.

Where there is a licence exception, the licence of Intellectual Property Rights above will not apply to the subject of the licence exception.

The licence granted above will be subject to the terms and conditions specified in the clause.

The licensor warrants that the licensee’s legitimate exercise of the licensed Intellectual Property Rights for the licence purpose will not infringe the rights of any third party.

The licensor warrants that it will give and obtain any Moral Rights waivers and consents necessary to ensure the licensee can use the Intellectual Property Rights for the licence purpose without infringing Moral Rights.

Sensitive Information

Sensitive Information has the meaning given in the Privacy Act (1988) Cth.

Smile Geni

Refers to AI Smile Transformation Tool

Taxes

Customer will be liable for all duties and taxes connected with the Agreement. Customer will be liable for taxes incurred under GST Law.

Transfers Intellectual Property Ownership

The assignor assigns all current and future Intellectual Property Rights in the transfer subject to assignee.

The assignment is global unless the clause specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.

The assignor warrants and represents to assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the assignee’s legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.

The assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.

The assignor gives (and where it does not hold the relevant Moral Rights warrants that it will obtain) any Moral Rights waivers and consents necessary to ensure the assignee can deal in the Intellectual Property Rights in the transfer subject in accordance with this clause without infringing Moral Rights.

Where there is a transfer exception, the transfer of Intellectual Property Rights and obligations in relation to Moral Rights in the subclauses above will not apply to the subject of the transfer exception.

Website

Means the Smile Geni https://smilegeni.ai/ or AORTA’s website https://aortaaustralia.com.au, being the same website on which the Web Services are also made available.

Terms of Agreement

Parties
This agreement is made between Smile Geni, Aorta Australia Pty Ltd (supplier) and Angel Aligner (recipient).
Purpose
The purpose of this agreement is to outline the responsibilities and obligations of each party regarding [briefly describe the nature of the agreement].
Term
This agreement shall commence on [TBC date] and shall remain in effect until [TBC, 12 months after commencement] or until terminated as provided herein.
Compensation
The recipient agrees to pay the supplier as per Schedule 1 for the services provided in this agreement. Payment shall be made as per Schedule 1.
Confidentiality
Both parties agree to keep any confidential information received from the other party confidential and shall not disclose it to any third party without prior written consent.
Indemnification
Each party agrees to indemnify and hold harmless the other party from any claims, damages, or liabilities arising from their own negligence or misconduct in connection with this agreement.
Governing Law
This agreement shall be governed by and construed in accordance with the laws of Australia.
Dispute Resolution
In the event of a dispute, the parties agree to attempt to resolve the issue through mediation before pursuing legal action.
Entire Agreement
This agreement constitutes the entire understanding between the parties and supersedes any prior agreements or understandings, whether written or oral.
Amendments
Any amendments or modifications to this agreement must be made in writing and signed by both parties.
Severability
If any provision of this agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Signatures
By signing below, both parties agree to the terms and conditions of this agreement.

Suspension of Services Due to Breach of Agreement

Breach of Agreement
In the event that either party fails to comply with the terms of this agreement, this will constitute a breach.
Notice of Breach
The non-breaching party shall provide written notice to the breaching party, specifying the nature of the breach and the necessary actions required to remedy it. This notice will be sent within [insert number of days, e.g., 5 days] of discovering the breach.
Cure Period
The breaching party shall have a period of [insert number of days, e.g., 10 days] from the receipt of the notice to rectify the breach.
Suspension of Services
If the breach is not cured within the specified period, the non-breaching party reserves the right to suspend all services related to this agreement until the breach is resolved. The non-breaching party will provide written notice of the suspension.
Reinstatement of Services
Services will be reinstated once the breaching party has addressed the breach to the satisfaction of the non-breaching party and communicated this in writing.
Liability
The breaching party shall remain liable for any consequences arising from the suspension of services, including any financial losses incurred by the non-breaching party.
Acknowledgment
By signing this agreement, both parties acknowledge their understanding and acceptance of these terms regarding the suspension of services.

Termination Due to Failed Payment

Payment Obligations
Both parties acknowledge that timely payments are essential for the continuation of this agreement. The payment schedule is outlined in Schedule 1.
Failed Payment
If a payment is not received by the due date, the party responsible for the payment will be considered in default.
Grace Period
A grace period of 7 days will be provided for the defaulting party to rectify the failed payment.
Interest on Failed Payment

After the grace period, should payment not be made an amount of 2% interest per 7 days will be applied to any unpaid amounts ongoing.

Notice of Default
The non-defaulting party shall notify the defaulting party in writing within 5 days of the missed payment.
Termination Rights
If the payment remains unresolved after the grace period, the non-defaulting party may terminate the agreement with written notice to the defaulting party. The termination will be effective 14 days after the notice is sent.
Final Obligations
Upon termination due to failed payment, the defaulting party shall remain liable for any outstanding amounts owed under the agreement.
Acknowledgment
By signing this agreement, both parties acknowledge their understanding and acceptance of these termination terms.

Late Payment Interest Clause

Late Payment Interest
In the event that any payment is not received within the payment obligation terms and the grace period has lapsed past the due date, an interest charge of 2% shall be applied to the overdue amount for each 7-day period that the payment remains outstanding, until the total balance is paid in full.

Annual Renewal Agreement Terms

Renewal Date
The annual renewal date for this agreement shall be [TBC date], hereinafter referred to as the "Renewal Date."
Review Period
The parties agree to initiate a review of the agreement three (3) months prior to the Renewal Date. This review will include an assessment of the terms, performance, and any necessary adjustments.
Notification
Both parties shall notify each other in writing at least thirty (30) days before the review period begins to confirm the scheduled review.
Modifications
Any modifications to the agreement as a result of the review must be documented in writing and agreed upon by both parties at least fourteen (14) days prior to the Renewal Date.
Continuation
If no modifications are made, this agreement shall automatically renew under the same terms and conditions for an additional year.
Termination
Either party may terminate the agreement by providing written notice at least thirty (30) days prior to the Renewal Date if they do not wish to renew.
Acknowledgment
By signing this agreement, both parties acknowledge their understanding and acceptance of these terms.