Sineva - Advanced Medical Simulation

SINEVA TERMS AND CONDITIONS

1. Definitions and Interpretation

Company means Sineva Pty Ltd (ACN 661 338 209) (Company).
Commencement Date means the day upon which the Customer receives the Simulator from the Company.
Customer means the person(s) leasing the Simulator and/or subscribing to the Services under this Agreement.
Intellectual Property means copyrights, patents, trademarks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).
Services means those services supplied to the Customer by the Company.
Services Fee means the fee payable by the Customer for the Simulator and Services.
Simulator means the simulator and any other hardware, software and equipment leased to the Customer by the Company.
Term means the period of time that the Services are provided to, and the Simulator is leased to the Customer.

1.2. Interpretations

In this agreement unless the context otherwise requires:

a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
the singular includes the plural and vice versa;
a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
a reference to any gender refers to all genders;
a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this agreement;
a recital, schedule, annexure or description of the parties forms part of this agreement;
a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
a reference to any party to this agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
where an expression is defined anywhere in this agreement it has the same meaning throughout;
a reference to time is to local time in New South Wales; and
a reference to "dollars" or "$" is to an amount in Australian currency.

2. Acknowledgement of Terms and Conditions

The Customer expressly acknowledges that by accessing and using the Services and/or Simulator they agree to be bound by the Sineva Terms and Conditions as amended from time to time (Agreement).

3. Provision of Services and Support

Commencing on the Commencement Date, the Company will provide the Customer with the Services during the Term on the terms of this Agreement.
The Company agrees to provide the Services:
1. with reasonable skill and care;
2. in accordance with all applicable laws; and
3. otherwise in accordance with the provisions of this Agreement.

4. Conditions of Lease

Commencing on the Commencement Date and subject to the terms of this Agreement, the Company grants to the Customer a non-exclusive, non-transferable and revocable license to access and use the Simulator and the Services (including the Intellectual Property contained therein) during the Term.
The Customer must return to the Company the Simulator at the end of the Term or upon termination of this Agreement in a condition that is fair and reasonable having regard to the length of the Term. This clause does not apply if the Agreement is renewed under clause 9(a).
If the Simulator is damaged beyond repair or destroyed during the Term, the Customer must reimburse the Company for the full cost of the Simulator.

5. Restrictions and Responsibilities

Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by the Company, the Customer must not:
1. modify the Simulator or merge any aspect of the Simulator with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Simulator, the source code of the Simulator or any documents, manuals, media or setup instructions provided with the Simulator and/or in relation to the Services;
2. license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Simulator or the Services;
3. engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
4. access, store, distribute or transmit:
  1. viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Simulator and Services;
  2. material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
  3. material that facilitates illegal activity; or
  4. material that abuses or causes damage or injury to any person or property;
5. provide Simulator and Service login details or passwords, or otherwise provide access to the Simulator and Services, to any unauthorised third party and the Customer will take all reasonable steps to prevent unauthorised access to, or use of, the Simulator and Services;
6. share any features of the Simulator and Services that are not publicly available with any unauthorised third party;
7. engage in any conduct on the Simulator and while using the Services that is in breach of this Agreement; and
8. encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Simulator and Services.

Any breach of this clause 5 constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Simulator or the Services, and/or take further actions against you for breach of this Agreement.

The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect (Policies) and all applicable laws and regulations.
The Customer agrees to indemnify and hold harmless the Company against any claims, demands, actions, suits, proceedings, causes of action, damages, losses, liabilities, costs and expenses (including without limitation costs and legal fees) arising from the Customer’s use of the Simulator and/or Services.
The Company may, at its discretion, monitor the Customer’s use of the Services, and may prohibit any use of the Services it reasonably believes may be in breach of this Agreement.
The Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, headsets, servers, software, operating systems, networking, web servers and the like (collectively, Equipment).
The Customer is responsible for maintaining the security of the Equipment, the Customer account, any passwords (including but not limited to administrative and user passwords for use with the Equipment, Simulator) and Services, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.

6. Confidentiality and Proprietary Rights

Each party understands that the other party to this Agreement has disclosed or may disclose business, technical or financial information relating to its business (Proprietary Information).
Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service.
The Customer agrees:
1. to take reasonable precautions to protect the Company’s Proprietary Information; and
2. not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any Proprietary Information.
3. The parties agree that the foregoing does not apply to any information that is publicly available or that is required to be disclosed by law.
The Company owns and retains all rights, titles and interests in and to:
1. the Services, all improvements, enhancements or modifications thereto;
2. the Simulator, including any applications, inventions or other technology developed in connection with Implementation Services or support; and
3. all Intellectual Property related to any of the foregoing.
Notwithstanding anything to the contrary, the Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Simulator and/or Services and related systems and technologies (Customer Data). The Company will be free (during and after the term) to use Customer Data:
1. to improve and enhance the Simulator and Services and for other development, diagnostic and corrective purposes in connection with the Simulator and Services and other Company offerings, and
2. in connection with its business after taking reasonable steps to de-identify it.
Both parties agree to promptly destroy any Proprietary Information of the other party that is within their possession when this Agreement is terminated.
Nothing in this Agreement should be taken or construed to create or grant any rights or licenses except as expressly set out in this Agreement.

7. Intellectual Property

All rights, title or interest in and to the Simulator and Services and any information or technology that may be provided to, or accessed by, you and/or your authorised users in connection with the use of the Simulator and Services owned, and will remain owned, by the Company or its licensors (Provider IP). Using the Simulator or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.
All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Simulator or the provision of any Services will automatically vest in, and are assigned to, the Company, including any enhancements, improvements and modifications to the Provider IP (collectively, Developed IP).
The Customer must not represent to anyone or in any manner whatsoever that they are the proprietor of the Simulator, Services and/or the Provider IP.
The Customer agrees that the Company may refer to the Customer, their business name, publish their logo and/or trade mark and make reference to the Customer as a customer of the Company in any communications or publications for the purposes of marketing or promoting the Company's business.

8. Payment of Fees

The Customer must pay the Company the Services Fee each and every year, payable in advance, subject to the terms of clause 8 of this Agreement.
The Company reserves the right to change the Services Fee or applicable charges and to institute new charges and fees at the end of the Term, upon thirty (30) days prior notice to the Customer (which may be sent by email).
If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.
The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty 30 days after the mailing date of the invoice.
Unpaid amounts are subject to an interest charge of 7% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
Where applicable, any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement and any other taxes, duties or levies will be paid by the Customer at the then-prevailing rate.

9. Term and Termination

Subject to earlier termination as provided below, this Agreement is for the Term and shall be automatically renewed for additional periods of the same duration as the Term unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement. The Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the Company will make Customer Data available to the Customer in a form the Company deems appropriate for a period of thirty (30) days, but thereafter the Company may, but is not obligated to, delete stored Customer Data unless requested to do so by the Customer. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

10. Warranty and Disclaimer

The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, the Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
While all due care has been taken, the Company does not warrant that the operation of the Simulator and Services will be uninterrupted or free from defects or errors, or that any third-party components of the Simulator and Services will be accurate or free from defects or errors or that the Services will be compatible with any application, program or software not specifically identified as compatible by the Company.
To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Simulator and Services provided hereunder is given or assumed by the Company other than as required at law.
The Company makes no representations, warranties or guarantees that:
1. content available on, or produced by or via, the Simulator and Services is accurate, complete, reliable, current, error-free or suitable for any particular purpose; and/or
2. the Simulator and Services are or will be free from viruses, worm, trojan or other malicious code. The Customer is responsible for taking precautions in this respect.
The Company’s obligation and the Customer’s exclusive remedy during the Term are limited, in the Company’s absolute discretion, to:
1. the Company, at its own expense, using all reasonable endeavours to rectify any non-conformance of the Simulator and Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time; or
2. a refund of the Fees paid if, in the Company’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.
The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that:
1. the facilities and functions of the Services meet the Customer’s requirements;
2. the Services are appropriate for the specific circumstance of the Customer and are within the laws and regulations of the Customer’s jurisdiction.
3. the Company does not purport to provide any legal, medical, taxation or accountancy advice by providing the Services under this Agreement.
The Company will not be liable for any failure of the Simulator and Services, or any failure attributable to:
1. any modification to the Simulator and Services other than by the Company;
2. accident, abuse or misapplication of the Simulator and Services by the Customer;
3. use of the Simulator and Services with other software or equipment without the Company’s written consent;
4. use of other than the latest, unaltered current release of the Simulator and Services; and
5. use other than in accordance with this Agreement.
The Company does not warrant and the Customer acknowledges that any part of the Services will be completely free from defects or errors. Parts of the Services may be in development and made available to the Customer for testing purposes only, and prior to any formal release. The Company may withdraw those Services at any time without notice.
The Customer expressly acknowledges that the Simulator, the Services and anything else provided, leased or supplied to the Customer under this Agreement does not constitute or amount to medical and/or health advice. The Simulator and Services are provided for educational purposes only.

11. Indemnity

The Customer will at all times indemnify and hold harmless the Company and its officers, employees and agents in respect of any third-party claim, demand, suit, action or proceeding for any injury, loss, damage, cost or expense occasioned by or arising directly indirectly from:
1. a breach by the Customer of its obligations under this Agreement
2. any wilful, reckless, unlawful or negligent act and/or omission of the Customer in the use of the Services and/or Simulator.

12. Limitation on liability

Except in the case of death or personal injury caused by the Company's negligence, the liability of the Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Customer to the Company for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.
The Company is not liable to the Customer in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Customer of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

13. Dispute Resolution and Mediation

If a dispute arises out of this Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
Any party subject to these terms claiming a dispute has arisen under the terms of this Agreement (Dispute), must give written notice to the other Party detailing the nature of the Dispute, the desired outcome, and the action required to settle the Dispute (Dispute Notice).
On receipt of the Dispute Notice by the other Party, the Parties to this Agreement must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
If for any reason whatsoever, 21 days after the date of the Dispute Notice, the Dispute has not been resolved the Parties must participate in a mediation with a mutually agreed mediator. If the parties are unable to agree to a mediator, they must appoint a mediator recommended by the NSW Bar Resolution Centre.
It is agreed that mediation will be held in New South Wales, Australia.
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" communications.
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

14. General

Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by both the Company and the Customer.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement remains in full force and effect and is enforceable.
This Agreement is not assignable, transferable or sublicensable by the Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.