EAI Ceph Module Subscription Agreement

Important Notice:

We have developed the EAI Model. You wish to subscribe for, access and use our Services involving our Viewer.

This Subscription Agreement sets out the terms and conditions under which User is allowed to subscribe to, access and use the Services. You must carefully read this Subscription Agreement before subscribing to, accessing or using our Services as it forms a binding contract between you and EAI.

The Services are made available to you on the basis that you agree to be bound by this Subscription Agreement. By subscribing to, accessing and using the Services or by expressly accepting this Subscription Agreement through the relevant means (including by clicking on any “accept” button when you sign up to our Services), you agree to be bound by this Subscription Agreement.

If you do not agree to the terms of this Subscription Agreement, you are not permitted to subscribe to, access or use our Services, and must immediately discontinue any attempt to access or use our Services.

1) Definitions and Interpretation

In this Subscription Agreement:

“Applicable Law” means all laws, statutes and regulations of any governmental or other regulatory body of competent jurisdiction and any orders of any court or other tribunal of competent jurisdiction applicable to this Subscription Agreement or the performance by a party of its obligations under this Subscription Agreement, including any Data Protection Laws;

“Confidential Information” means all information of a Party which is either expressly designated as confidential or proprietary or which should reasonably be understood to be confidential considering its nature or the circumstances surrounding its disclosure.Confidential Information may include certain technical, economic, commercial,or financial information, ideas, know-how, trade secrets, (personal) data,personal information, (market) opportunities, strategies, intellectual property, whether in writing (including electronic form) or orally, as well as any information, work papers, analyses, compilations, projections, studies,correspondence or other materials derived or produced, in whole or in part,from such Confidential Information, including any copies of them. EAI’s Confidential Information includes any information shared in connection with User’s access to and use of the Services, including any Viewer and EAI Model features and functionality;

“Contract Year” means each 12 month period during the Term commencing on the date that we commence providing you with the Services under this Subscription Agreement and each anniversary;

“Data Protection Laws” means, as applicable to either party and/or to the rights, responsibilities and/or obligations of either party in connection with this Subscription Agreement, any law relating to the processing, privacy and/or use of Personal Data;

“Documentation” means any written description of the functions performed by the EAI Model and the Services, and any user instructions as may be made available by EAI to Users in writing to facilitate use of the Services;

“EAI”, “we”, “us” or “our” means Eyes of AI Pty Ltd (ACN 639 529 712);

“EAI Model” means machine learning algorithm lateral cephalometric analysis model that analyses lateral cephalometric (Ceph) images;

“Force Majeure Event” means an occurrence which is reasonably beyond EAI’s control and which makes the performance of EAI’s obligations under this Subscription Agreement temporarily or permanently impossible or unreasonably impractical, including acts of war (irrespective of declaration of war), acts of terrorism, riots, fire, natural disaster, floods, earthquakes, typhoons, tsunamis, weather conditions, epidemics, pandemics, disruptions in power, nuclear plant or power station accidents, orders, acts, by-laws or regulations from government or administration.

“Intellectual Property Rights” means copyright, rights related to copyright such as moral rights and performers rights, patents, rights in inventions, rights to use and protect the confidentiality of confidential information (including, but not limited to know-how and trade secrets), trade marks, trade names, design rights, rights in get-up and trade dress, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, all similar rights of whatever nature wherever in the world arising, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing;

“Liability” means any liability whether in tort (including for negligence or breach of statutory duty), contract (including under any indemnity), misrepresentation, restitution or otherwise, and “Liabilities” is construed accordingly;

“Loss” means any loss, damage, fine, penalty, cost, expense or other liability (including legal and other professional fees), and “Losses” is construed accordingly;

“Output” means any results, data or outputs generated by your use of the Services;

“Party” means EAI and/or User as the context requires;

“Permitted Purpose” means to use the Services in order to receive Outputs for your internal business purposes, in all cases for non-clinical and non-diagnostic purposes;

“Personal Data” has the meaning given in Data Protection Laws;

“Privacy Policy” means our privacy policy that we maintain and is accessible on our website;

“Services” means a feature set involving our EAI Model accessible using our Viewer provided pursuant to this Subscription Agreement;

“Subscription Agreement” means this subscription agreement governing our provision of and your access to our Services and any documents incorporated by reference to it;

“Subscription Fees” means the fees payable for your use of the Services;

“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by us that are integrated with or otherwise accessible through or made available to you in connection with the Services;

“Unauthorised Use” means any access to or use of the Services or Outputs other than as expressly permitted in this Subscription Agreement;

“User”, “you” or “your” means the person authorised to use the Services pursuant to and as bound by the terms of this Subscription Agreement;

“User Data” means any data of any type that you submit to the Services, including without limitation data you submit, upload, or import to the Services; and

“Viewer” means the EAI Ceph module of our 2D viewer.

In this Subscription Agreement:

1. no provision of this Subscription Agreement is interpreted adversely against EAI solely because EAI was responsible for drafting that particular provision;
2. references to a Party includes that Party’s successors and permitted assigns;
3. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions are construed as illustrative only and do not limit the sense of any word, phrase, term, definition or description preceding those words;
4. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
5. a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time, and includes all subordinate legislation made from time to time under that legislation; and
6. a reference to any action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing under Applicable Law, in respect of any jurisdiction other than New South Wales, includes a reference to that which most nearly approximates the equivalent to the relevant Applicable Law in that jurisdiction.

2) Subscription to the Services and Subscription Fees

1. To be eligible to subscribe for and access the Services, you must meet the following criteria:
   
   i) You agree to the terms of this Subscription Agreement and any of our standard terms of service and privacy policy.
   
   ii) You agree to comply with all written requirements we provide you during our user registration process and that we make available to you as part of your use of the Services.
   
   iii) You agree to comply with any resources, user guides and documentation we provide to you as part of our provision of and your access to the Services.
   
   iv) You must be over the age of 18 years old if you are a natural person, or a duly organised and validly existing entity if you are subscribing on behalf of an entity.
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2. When you subscribe to the Services, you will need to create a user account to access and use the Services, and you will need to select a subscription type indicating the subscription term, renewal frequency and the applicable Subscription Fees:
   
   i) We may suspend, limit or terminate your user account at any time in accordance with section ‎3).
   
   ii) Your rights to use the Services are subject to your payment of the Subscription Fees:
   
   iii) If your Subscription Fees are based on your actual usage of our Services, you acknowledge that we may log your use of the Services to verify your usage.
   
   iv) If your Subscription Fees are paid by means of prepaid credits that may be used for requests within a specified period, you acknowledge that credits:
   
   (1) are subject to us receiving payment for them;
   
   (2) may have a limited validity period (as we may specify to you at the point you select the subscription service type); and
   
   (3) are not refundable (except as we may otherwise agree).
   
   v) We may alter our subscription pricing model from time to time by giving you thirty (30) days’ prior notice of any such changes.
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3. Unless otherwise indicated, all Subscription Fees:
   
   i) are payable in advance according to the payment method indicated to you;
   
   ii) are payable in Australian dollars; and
   
   iii) are inclusive of any applicable, sales, use, excise or similar taxes.

3) Term and Termination

1. Subscription Term:
   
   i) Initial Term and Renewal: Your subscription to the Services commences on the effective date of your subscription and continues for the period specified in your selected subscription plan (“Initial Term”). Unless you provide us with at least seven (7) days’ written notice prior to the end of the Initial Term or any Renewal Term, your subscription will automatically renew for successive periods equal in duration to the Initial Term (“Renewal Term”) at the then-current subscription fees.
   
   ii) Subscription Cancellation: You may cancel your subscription by providing us with at least seven (7) days’ written notice before the end of the current subscription term. Cancellation will take effect at the end of the current subscription term, and you will not be entitled to any refund of prepaid Subscription Fees.
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2. Suspension and Termination by EAI:
   
   i) Termination for Convenience:  We may terminate this Subscription Agreement for convenience at any time by providing you with at least thirty (30) days’ written notice. In such case, we will refund any prepaid Subscription Fees on a pro-rata basis for the remaining period of your subscription.
   
   ii) Suspension or Termination for Cause: We may suspend or terminate your access to the Services immediately upon written notice to you if:
   
   (1) Breach of Agreement: You breach any material provision of this Subscription Agreement and fail to cure such breach within seven (7) days after receiving written notice from us specifying the breach.
   
   (2) Non-Payment: You fail to pay any undisputed amount due under this Subscription Agreement on the due date for payment and remain in default for more than seven (7) days after being notified in writing to make such payment.
   
   (3) Eligibility Criteria: You no longer meet the eligibility criteria set out in Section 2 or have provided invalid or misleading information during the registration process.
   
   (4) Unauthorised Use: We detect any unauthorised use of the Services, Viewer, or Outputs, or any use that may adversely affect the security, operation, integrity, or performance of the Services.
   
   (5) Force Majeure: A Force Majeure Event continues for a period of three (3) months, making it impossible or impractical to perform our obligations under this Subscription Agreement.
   
   (6) Security Risk: Your use of the Services poses a security risk to the Services or any third party.
   
   (7) Services Impact: Your use of the Services may adversely impact the Services or the systems or Content of any other user;
   
   (8) Required by Law: Suspension is required pursuant to Applicable Law or a governmental or regulatory body.
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3. Termination by User: You may terminate this Subscription Agreement immediately upon written notice to us if we materially breach any provision of this Subscription Agreement and fail to cure such breach within thirty (30) days after receiving written notice from you specifying the breach.
4. Effects of Termination. Upon termination or expiration of this Subscription Agreement for any reason:
   
   i) Cessation of Access: You must immediately cease all access to and use of the Services, Viewer, and Outputs.
   
   ii) Return or Destruction of Materials: You must promptly return, destroy, or delete all copies of our Confidential Information, Documentation, and any Outputs in your possession or control, and certify in writing that you have done so upon our request.
   
   iii) Outstanding Fees: You remain liable for any unpaid Subscription Fees up to the effective date of termination. If we terminate the Agreement due to your breach, you will not be entitled to any refund of any prepaid Subscription Fees.
   
   iv) Survival: The provisions of this Subscription Agreement that are intended to survive termination or expiration, including but not limited to clauses related to Intellectual Property Rights, Confidentiality, Liability and Indemnity, and Governing Law, will continue in full force and effect.

4) User Data

1. License to Use User Data: You grant us a restricted, non-exclusive, fully paid-up, royalty-free, non-revocable license to store, copy, modify, and otherwise use your User Data as necessary to provide the Services and perform our obligations under this Subscription Agreement.
2. Retention and Use: Subject to Applicable Law, we may retain User Data during your access to the Services for our internal purposes, including evaluating and improving the EAI Model and for reporting and analytics. We do not provide data storage or archiving services and disclaim any obligations regarding the same.
3. Anonymised Data: We may collect and analyse aggregated data and other information relating to your use and the performance of the Services, including data derived from User Data, that is anonymised or pseudonymised with respect to you and User Data (“Anonymous Data”). You acknowledge that we are free to use Anonymous Data during and after the term of this Subscription Agreement for our internal business purposes, including to:
   
   i) improve, support, operate and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and our other offerings;
   
   ii) generate benchmarks, guidance, recommendations or reports from any Anonymous Data; and
   
   iii) use and disclose such reporting and/or Anonymous Data.
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4. Compliance and Responsibility: You are solely responsible for ensuring that User Data, and your use of the Viewer and Outputs, comply with all Applicable Laws, including data protection and security obligations. If you grant other users access to Outputs, you do so at your own risk, and we are not responsible for their actions.
5. Monitoring and Suspension: We may monitor your use of the Services, including User Data, and may apply limits or suspend your use if we believe your use breaches this Subscription Agreement or may adversely affect the security, operation, integrity, or performance of the Services.

5) Use Restrictions

1. Prohibited Activities: You must not, and must not permit any third party to:
   
   i) Use the Viewer, Outputs, or any data or insights derived from the Services to develop AI models, platforms, products, or services that compete with or are derivatives of our EAI Model or Viewer, or for training or development purposes for any AI models.
   
   ii) Attempt to undermine or circumvent the security or integrity of, or gain unauthorised access to, the Services, EAI Model or Viewer.
   
   iii) Use the Services in any way that impairs or compromises its functionality, integrity, or security, including that of the EAI Model, Viewer, or other users.
   
   iv) Misrepresent any Output as solely human-generated, or in a manner that is misleading regarding the capabilities of the EAI Model or Viewer.
   
   v) Use the Viewer or Services for unlawful activities, spam, fraudulent, criminal, defamatory, or tortious activities, or outside the scope of your license under this Subscription Agreement.
   
   vi) Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms of the EAI Model, Viewer, or any part of the Services, except to the extent such actions are expressly permitted by Applicable Law.
   
   vii) Remove, alter, or obscure any proprietary notices or labels on the Services, Viewer, Outputs, or documentation.
   
   viii) Distribute, sublicense, rent, lease, sell, resell, transfer, or otherwise make available the Viewer, Services, Outputs, or any data or insights derived from the Services to any third party without our prior written consent.
   
   ix) Translate, merge, adapt, vary, alter, or modify the whole or any part of the Services, nor permit the Services or any part of them to be combined with or incorporated into any other programs, except as necessary to access the Services as permitted by us.
   
   x) Use the Services, Viewer, or Outputs in any manner that infringes our Intellectual Property Rights or those of our licensors or any third party.
   
   xi) Use or exploit the Viewer, Services, or any Outputs for any purpose other than as expressly permitted by this Subscription Agreement.
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2. Acknowledgements: You acknowledge that:
   
   i) Due to the nature of machine learning and the EAI Model, similar Outputs may be generated for other users.
   
   ii) You must have compatible hardware, operating system, web browser, and internet access to use the Services, at your own cost and responsibility.
   
   iii) You are solely responsible for maintaining the confidentiality of your user IDs and passwords, and for any activities conducted under your accounts. User IDs are granted to individual, named persons and may not be shared.
   
   iv) You must promptly notify us of any unauthorised use of your accounts or passwords, or any other breach or suspected breach of this Subscription Agreement.

6) Outputs

1. Third-Party Rights: Outputs may contain third-party Intellectual Property Rights. You must ensure your use of Outputs does not infringe any third-party rights or violate any agreements related to the use of Outputs.
2. Disclaimer: You acknowledge and agree that we have no responsibility or Liability for any medical or clinical decisions made, conclusions drawn, or actions taken based on the Outputs. You must rely on your own judgment and assessment when making any decisions in connection with any Output.
3. Usage Limits: The number and frequency of requests for Outputs may be limited based on your subscription level and available credits. We may specify input or Output limitations and other feature restrictions necessary to manage server load, performance, and scalability.

7) Intellectual Property Rights

1. Ownership:
   
   i) Our Intellectual Property Rights: You acknowledge and agree that we (and/or our licensors) retain all rights, title, and interest, including all Intellectual Property Rights, in and to:
   
   (1) The EAI Model, Viewer, Services, Outputs (excluding User Data), any data provided by us, documentation, and any related services or deliverables.
   
   (2) Any modifications, enhancements, or derivative works thereof.
   
   Except for the limited rights expressly granted to you under this Subscription Agreement, no rights or licenses are granted to you under any of our Intellectual Property Rights.
   
   ii) Your Intellectual Property Rights: You retain all rights, title, and interest, including all Intellectual Property Rights, in and to your User Data and your Confidential Information.
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2. License Grant:
   
   i) License to Use Services and Outputs: Subject to your payment of all applicable Subscription Fees and compliance with this Subscription Agreement, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable right to:
   
   (1) Access and use the Viewer and Services solely for the Permitted Purpose.
   
   (2) Input User Data and generate and use Outputs solely for the Permitted Purpose in accordance with this Subscription Agreement.
   
   ii) License to Use User Data: You grant us a limited, transferable, sub-licensable, non-exclusive, royalty-free right to use, reproduce, modify, and process your User Data for the purpose of providing you with the Services and improving the EAI Model and related offerings, in accordance with this Subscription Agreement.
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3. Feedback: If you provide us with any feedback, suggestions, or recommendations regarding the Services (“Feedback”), you agree that:
   
   i) All Intellectual Property Rights in such Feedback, and any modifications or improvements based on such Feedback, vests exclusively in us.
   
   ii) We may use and incorporate such Feedback into our products and services without any obligation to you.
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4. No Implied Rights: Except as expressly provided in this Subscription Agreement, no rights or licenses are granted to you under any Intellectual Property Rights, whether by implication, estoppel, or otherwise.

8) Third Party Features

1. The Services may support integrations with or offer features or services provided or enabled by certain Third-Party Platforms including without limitation Third-Party Platforms responsible for credential management or payment gateways. To enable the Services to access and receive your information from a Third-Party Platform, you may be required to input your credentials to or for such Third-Party Platform. By enabling use of the Services with any Third-Party Platform, you authorise us to access your accounts with (or to otherwise obtain verification from) such Third-Party Platform for the purposes described in this Subscription Agreement.
2. You acknowledge that:
   
   i) you are responsible for complying with any relevant terms and conditions of the Third-Party Platform and for maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms.
   
   ii) we are not responsible nor Liability for any Third-Party Platform or how a Third-Party Platform uses or processes You Data exported to a Third-Party Platform;
   
   iii) you consent to such sharing of User Data with any such Third-Party Platform; and
   
   iv) we cannot ensure that the Services will maintain integrations with any Third-Party Platform and we may disable integrations of the Services with any Third-Party Platform at any time with or without notice to you.

9) Data Privacy and Processing

1. Your data privacy is important to us. We may process Personal Data to provide you with the Services, through your interactions with us, and to provide you with any Outputs as contemplated by the Services in compliance with our Privacy Policy.
2. You must procure all consents required:
   
   i) to use User Data in connection with your use of our Services; and
   
   ii) for us to process such data for the purposes of providing the Services.
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3. If a data breach occurs resulting from any aspect of your use of the Services, you must promptly contact us and provide details of the data breach, and refrain from making any public statements regarding the data breach without our prior written consent.

10) Service Obligations

1. We will use reasonable efforts to make the Services available during normal business hours in Australia during weekdays.
2. You acknowledge that the Services are made available to you without any support commitment. Any support services provided will be as we determine at our discretion from time to time.
3. We may add to or remove features from the Services from time to time without prior notice to you. Your continued access to the Services following any changes to the Services or this Subscription Agreement constitutes your acceptance of those changes.
4. We may disrupt your access to the Service to allow for appropriate maintenance, repairs, upgrades and the introduction of new functionality, or due to a Force Majeure Event. You acknowledge that unscheduled downtime to the Services may be necessary, including for security purposes. We will use reasonable endeavours to inform you of any planned upcoming unavailability.

11) Warranties and Representations

1. Your Warranties: You warrant and represent that:
   
   i) Authority: You have the full right, power, and authority to enter into this Subscription Agreement and to perform your obligations under it.
   
   ii) Compliance with Laws: You will comply with all Applicable Laws in connection with your use of the Services and Outputs.
   
   iii) Rights in User Data:
   
   (1) You hold all necessary rights, licenses, and consents required to use the Services and to provide User Data for use with the Services.
   
   (2) User Data, when used by us in accordance with this Subscription Agreement, will not infringe any Intellectual Property Rights or other rights of any third party, violate any Applicable Laws, or breach any terms of service or agreements governing the use of such User Data.
   
   iv) Use Restrictions: You will not engage in any Unauthorised Use of the Services or Outputs.
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2. Our Warranties: We warrant and represent that:
   
   i) Authority: We have the full right, power, and authority to enter into this Subscription Agreement and to perform our obligations under it.
   
   ii) Provision of Services: We have sufficient rights to provide the Services as contemplated under this Subscription Agreement.
   
   iii) Intellectual Property: To the best of our knowledge, the Viewer and Services, when used by you in accordance with this Subscription Agreement, do not infringe any Intellectual Property Rights of any third party.
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3. Acknowledgements: You acknowledge and agree that:
   
   i) Risk of Use: Your use of the Services and Outputs is at your sole risk.
   
   ii) Clinical Decision Support: The Services and Outputs are intended to provide clinical decision support only and do not constitute clinical or diagnostic advice or services.
   
   iii) Professional Judgment: You are solely responsible for exercising professional judgment and making decisions based on your assessment when using the Outputs in any clinical or medical context.
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4. Disclaimer of Warranties:
   
   i) As-Is Basis: The Services and Outputs are provided on an “as-is” and “as-available” basis. To the maximum extent permitted by Applicable Law, we disclaim all warranties and representations, express or implied, statutory or otherwise, including any warranties of merchantability, fitness for a particular purpose, non-infringement, title, or arising from a course of dealing or performance.
   
   ii) No Warranty on Performance: We do not warrant or represent that:
   
   (1) The Services or Outputs will be accurate, complete, reliable, error-free, or uninterrupted.
   
   (2) The Services or Outputs will meet your requirements or be fit for any particular purpose.
   
   (3) Any defects or errors in the Services or Viewer will be corrected.
   
   (4) The results obtained from the use of the Services or Outputs will be accurate or reliable, particularly given the probabilistic nature of artificial intelligence and machine learning.
   
   iii) Third-Party Links and Resources: The Services may contain links to third-party websites, resources, or services. We have no control over the contents of those third-party resources and make no warranties or representations regarding their legitimacy, accuracy, or quality. Accessing any third-party resources is at your own risk.
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5. Limitations: Our warranties are subject to the following limitations:
   
   i) Compliance: Any warranties provided are contingent upon your use of the Services in compliance with this Subscription Agreement.
   
   ii) Exclusions: We are not responsible for:
   
   (1) Any modifications made to the Services or Outputs by anyone other than us without our express prior written consent.
   
   (2) Any defects or errors caused wholly or in part by equipment, software, or services not supplied by us.
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6. No Other Warranties: Except as expressly provided in this Subscription Agreement, and to the maximum extent permitted by Applicable Law, we make no other warranties or representations, express or implied, regarding the Services or Outputs.

12) Liability and Indemnity