1. Introduction

Optalert Pty Ltd (“Optalert”) offers a range of data analysis services (the “Services”), designed to assist our Clients in developing, testing, and improving their own technology platforms through the use of Optalert’s blepharometric data processing processes, technology and algorithms (“Optalert Technology”).  These Services, include, amongst others:

  • Applying Optalert Technology to Client data, to provide metrics for human physiological conditions (e.g. alertness/drowsiness).
  • Labelling Client data based on Optalert Technology (for example to assist in population of training databases for Client AI platforms).
  • Benchmarking performance of Client AI platforms using Optalert Technology.
  • Supporting with Client clinical trials via data derived via Optalert Technology.

These Terms of Service govern the relationship between Optalert and our Clients using the Services.

  1. Definitions

“Optalert” means Optalert Pty Ltd , a company incorporated in Australia, having its principal place of business at 112 Balmain St, Cremorne, Victoria, Australia, and all affiliated entities.

“Client” means a user of the Service or Services.

“Service” or “Services” means Optalert’s products, processes, know-how, algorithms, software, and services provided from time-to-time to the Client.

“Optalert Technology” means Optalert’s products, processes, know-how, algorithms, and software, whether made available to the client or not.

“Behavioural Data” means data representing physical recorded behaviour of a human being, including but not limited to: video/image data; non-video data derived from video data; and eyelid position/movement data.

“Personal Information” is information that can be used to identify a particular human being, either alone or in combination with other information.

“De-identified Behavioural Data” means Behavioural Data which cannot be used by Optalert to identify a particular human being, based on information provided by the Client to Optalert.

“Optalert Output Data” means data which is derived from Behavioural Data (including De-Identified Behavioural Data) using Optalert Technology.

“Relevant Jurisdiction” means any jurisdiction in which the client collects or uses Behavioural Data, De-Identified Behavioural Data, and/or Personal Information, and Australia.

“Research and Development” means research and development performed for various purposes Optalert based on de-identified user data. These activities may include, among other things, improving our Services and/or offering new products or services to Clients; performing quality control activities; performing scientific research (including for publication in academic journals), conducting data analysis that may lead to and/or include commercialization activities.

  1. Acceptance of Terms

The Client’s use of the Services is subject to the terms of the legal agreement between the Client and Optalert set forth in these Terms of Service (“TOS”). Except as specified herein, these TOS apply to any use of the Services, including but not limited to:

  • Engaging Optalert to perform analysis of Behavioural Data provided by the client, including Personal Information.
  • Engaging Optalert to perform analysis of Behavioural Data provided by the client, where the client does not provide any Personal Information.
  • Engaging Optalert to provide a report including or based upon Optalert Output Data.

In order to use the Services, the Client must first agree to the TOS. The Client may not use the Services if they do not accept the TOS. The Client can accept the TOS by using the Services. In this case, the Client acknowledges and agrees that Optalert will treat such use of the Services as acceptance of the TOS from that point onwards. Optalert also may offer other services from time to time that are governed by different terms of service.

  1. Client Warranties and Undertakings with respect to Data

The Client warrants and undertakes that, to the extent that the Client provides any data to Optalert (including Behavioural Data and/or Personal Information), the Client has full legal and regulatory authority to provide that data to Optalert.  This includes:

  • The Client undertakes and warrants that, in providing data to Optalert, the Client is not in breach of any laws or regulations in any Relevant Jurisdiction.
  • The Client undertakes and warrants that, in the event that the Client provides to Optalert
  • Personal Information, the Client has consent from the person/persons identifiable from that Personal Information, including as required under laws or regulations in any Relevant Jurisdiction.
  • The Client undertakes and warrants to provide full disclosure to Optalert if there are regulations which would limit Optalert’s use of data provided by the Client.

The Client hereby indemnifies Optalert against any losses or damages resulting from any breach by the Client of the warranties and undertakings set out above.

  1. Risks and Considerations Regarding the Services

Optalert may not be able to perform the Services, or may not be able to perform the services accurately, in the event that there are quality issues with Behavioural Data provided by the Client.  As this possibility is known in advance, users are not entitled to refunds where this occurs.

Optalert does not warrant that it the Optalert Output Data will be 100% accurate in all circumstances, and is affected by factors including the quality of input data. The Client accepts all risks associated with reliance upon any Optalert Output Data.

  1. User Representations

By using the Services, the Client agrees to, acknowledge, and represent as follows:

  • The client understands that Optalert Output Data is not designed to independently and conclusively diagnose, prevent, or treat any condition or disease or to ascertain the state of a subject’s health in the absence of medical and clinical information. The client understands that the Services are intended for research, informational, and educational purposes only.
  • The Client confirms that providing Behavioural Data to Optalert is not subject to any export ban or restriction in the country in which the Client
  • The Client agrees that any Behavioural Data provided, and all resulting Optalert Output Data, may be transferred and/or processed outside the country in which the Client resides.
  • The Client warrants that they are not an insurance company or an employer attempting to obtain information about an insured person or an employee.
  • The Client takes full responsibility for all possible consequences resulting from utilisation of Optalert Output Data.
  • Waiver of Property Rights: The Client understands that by providing any Behavioural Data, they acquire no rights in any research or commercial products that may be developed by Optalert or its collaborating partners based on Research and Development which utilises that Behavioural Data.

The Client agrees that they have the authority, under the laws of the state or jurisdiction in which they reside, to provide these representations. In case of breach of any one of these representations, Optalert has the right to suspend and/or refuse any and all current or future use of the Services (or any portion thereof), and the Client will defend and indemnify Optalert and its affiliates against any liability, costs, or damages arising out of the breach of the representation.

  1. Privacy Statement and Disclosure of Information

In order to use the Services, the Client  must first acknowledge and agree to the Privacy Statement. The Client may not use the Services if The Client does not accept the Privacy Statement. The Client can acknowledge and agree to the Privacy Statement by using the Services.

The Client acknowledges and agrees that Optalert has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have in terms of usage of the Optalert Services, website, or other systems. Optalert may include any De-Identified Behavioural Information in data that Optalert discloses to third parties for the purpose of publication in a peer-reviewed scientific journals. Optalert may also include any De-Identified Behavioural Information for the purposes of disclosure to third-party non-profit and/or commercial research partners who will not publish that information in a peer-reviewed scientific journal. Optalert Research and Development may be sponsored by, conducted on behalf of, or in collaboration with third parties, such as non-profit foundations, academic institutions or pharmaceutical companies. Optalert Research and Development may study a specific group or population, identify potential areas or targets for therapeutics development or technology development, conduct or support the development of drugs or other technology, diagnostics or devices to diagnose, predict or treat medical or other health conditions, work with public, private and/or non-profit entities on research initiatives, or otherwise create, commercialize, and apply this new knowledge to improve health care and/or other fields of economic endeavour. Optalert will never release Personal Information to any third party without asking for and receiving the Client’s explicit consent to do so, unless required by law.

Further, the Client acknowledges and agrees that Optalert is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that Optalert may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the Optalert TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Optalert, its employees, its users, its clients, and the public. In such event we will notify the Client through the contact information provided to us in advance, unless doing so would violate the law or a court order. The Client understands that the technical processing and transmission of data related to the Services, potentially including Personal Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, or devices.\

  1. Client Conduct – Unlawful and Prohibited Use

As a condition of the Client’s use of the Services, the Client warrants to Optalert that the Client will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices.

The Client may not use the Services in any manner which could damage the reputation of Optalert, including a prohibition on use in any manner which is intended to demonstrate ineffectiveness or inaccuracy of the Services or the Optalert Technology.  The Client may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. The Client may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

The Client acknowledges and agree that they are solely responsible for (and that Optalert has no responsibility to the Client or to any third party for) any breach of the Client’s obligations under the TOS and for the consequences (including any loss or damage which Optalert may suffer) of any such breach. In case of breach of any one of these agreements Optalert has the right to suspend or terminate all current or future use of the Services (or any portion thereof) and the Client will defend and indemnify Optalert and its affiliates against any liability, costs, or damages arising out of the breach of the representation.

If the Client violates the terms of this Section and/or Optalert has a reasonable ground to suspect that the Client has violated the terms of this Section, Optalert has the right to suspend or terminate any and all current or future use of the Service (or any portion thereof).

  1. Export Control and Applicable Laws and Regulations

Recognizing the global nature of the Internet, the Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, the Client agrees 1) that providing Behavioural Data is not subject to any export ban or restriction in the country in which the Client resides, 2) that the Behavioural Data may be transferred and/or processed outside the country in which the Client resides, and 3) that the Client will comply with all applicable laws regarding the transmission of technical data exported from any Relevant Jurisdiction.

  1. Indemnity

The Client agrees to defend and hold Optalert, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the Clients use of any Optalert Output Data; the Client’s use of the Services; the Client’s connection to the Service; The Client’s violation of the TOS; or the Client’s violation of any rights of another.

  1. No Resale of Service

The Client agrees not to display or resell for commercial purposes, all or any portion of the Service, use of the Service, or access to the Service.  The client is authorised to use the Services and any Optalert Output data for its own commercial purposes.

  1. Modifications to Service

Optalert reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. The Client acknowledge and agree that (i) modifications may result in a delay in computations for some of the Optalert features or Services, and (ii) Optalert shall not be liable to the Client or to any third party for any modification, suspension, or discontinuance of the Services.

The Client acknowledges that Optalert may offer different or additional technologies or features to collect and/or interpret Behavioural Data in the future and that the Client’s initial purchase of the Service does not entitle the Client to any different or additional technologies or features for collection or interpretation of Behavioural Information without fee.

  1. Termination

The TOS will continue to apply until terminated by either the Client or Optalert as set out in this Section.

If the Client wants to terminate this legal agreement with Optalert, it may do so by notifying Optalert at any time in writing, which will entail closing the Client’s accounts for all of the Services that the Client uses. The notice should be sent, in writing, to Optalert’s address, which is set out at the beginning of the TOS.

Optalert may at any time, terminate its legal agreement with the Client if: (1) the Client has breached any provision of the TOS (or have acted in manner which shows that the client does not intend to, or is unable to comply with, the provisions of the TOS); (2) Optalert is required to do so by law (for example, where the provision of the Services to the Client is, or becomes, unlawful); (3) a partner with whom Optalert offered the Services to the Client has terminated its relationship with Optalert or ceased to offer the Services to the Client; (4) Optalert is transitioning to no longer providing the Services to users in the country or state in which the Client resides or from which the Client uses the Services; or (5) the provision of the Services to the Client by Optalert is, in Optalert’s opinion, no longer commercially viable.

Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of the Client’s use of the Services may be referred to appropriate law enforcement authorities. The Client acknowledges and agrees that Optalert shall not be liable to the Client or any third party for any termination of the Client’s access to the Services.

  1. Survival of Terms

When the TOS come to an end, all of the legal rights, obligations, and liabilities that the Client and Optalert have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Client Warranties and Undertakings with respect to Data); 4.(Risks and Considerations Regarding the Services); 5.(User Representations); 6.(Optalert Privacy Statement and Disclosure of Information); 7.(Client Conduct – Unlawful and Prohibited Use); 8.(Export Control and Applicable Laws and Regulations); 9.(Indemnity); 10.(No Resale of Services); 12.(Termination); 13.(Survival of Terms); 14.(Dealings with Information Providers and Listed Resources); 15.(Optalert Proprietary Rights); 16.(DISCLAIMER OF WARRANTIES); 17.(LIMITATION OF LIABILITY); 18.(Notice); 19.(Violation or Suspected Violation of Terms of Service); and 20.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.

  1. Dealings with Information Providers and Listed Resources

The Client’s correspondence or business dealings with-or participation in promotions of-information providers, vendors, and/or resources found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between the Client and such information provider or resource. The Client acknowledges and agrees that Optalert shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Service.

  1. Optalert’s Proprietary Rights

The Client acknowledges and agree that Optalert (or Optalert’s licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights (including but not limited to patents) which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The Client further acknowledges that the Services may contain information which is designated confidential by Optalert and that the Client shall not disclose such information without Optalert’s prior written consent.

The Client further acknowledges and agrees that the Services and any necessary software used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Client further acknowledges and agrees that information presented to the Client through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Optalert, the Client agrees not to-and not to permit anyone else to-modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services, excluding software that may be made available by end-users through the Services, is the copyrighted work of Optalert and/or its suppliers. The Client’s use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). The Client may not install or use any Software that is accompanied by or includes a License Agreement unless the Client first agrees to the License Agreement terms.

Optalert, and other Optalert logos and product and service names are trademarks of Optalert and these marks together with any other Optalert trade names, service marks, logos, domain names, and other distinctive brand features are the “Optalert Marks”.

The Client agrees that it shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services.

Unless the client has been expressly authorized to do so in writing by Optalert, the Client agrees that in using the Services, the Client will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.

  1. Disclaimer of Warranties

THE CLIENT EXPRESSLY ACKNOWLEDGES AND AGREE THAT: (1) THE CLIENT’S USE OF THE SERVICES ARE AT THE CLIENT’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OPTALERT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) Optalert MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET THE CLIENT’S REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE CLIENT THROUGH THE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT THE CLIENT’S OWN DISCRETION AND RISK AND THAT THE CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CLIENT FROM OPTALERT OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) THE CLIENT SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT THE CLIENT OR THOSE FOR WHOM THE CLIENT HAS LEGAL AUTHORITY. OPTALERT DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM PARTICIPATION IN THE SERVICES AND, THEREFORE, OPTALERT SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM THE CLIENT’S PARTICIPATION IN THE SERVICES.

  1. Limitation of Liability

WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, THE CLIENT EXPRESSLY ACKNOWLEDGES AND AGREE THAT OPTALERT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Optalert HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION THE CLIENT TAKES BASED ON THE INFORMATION THE CLIENT RECEIVES IN THROUGH OR FROM THE SERVICES, (v) THE CLIENT’S FAILURE TO KEEP THE CLIENT’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE CLIENT’S TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.

  1. Notice

Notices to the Client may be made via either email or regular mail. Optalert may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to the Client generally on or through the Services.

Official notices related to this TOS must be sent to Optalert at:

Optalert Australia Pty Ltd.

ATTN: Chief Regulatory Officer

112 Balmain St, Cremorne, Victoria 3121

AUSTRALIA

Additionally, Optalert accepts service of process at this address. Any notices that the Client provides without compliance with this section on Notices shall have no legal effect.

  1. Changes to the Terms of Service

Optalert may make changes to the TOS from time to time. When these changes are made, Optalert will make a new copy of the TOS available on its website and any new additional terms will be made available to the Client from within, or through, the affected Services.

The Client acknowledges and agree that if it uses the Services after the date on which the TOS have changed, Optalert will treat the Client’s use as acceptance of the updated TOS.

  1. Miscellaneous

Entire Agreement. The TOS constitute the entire agreement between the Client and Optalert and govern THE CLIENT’S use of the Services, superseding any prior agreements between the Client and Optalert on this subject. The Client also may be subject to additional terms and conditions that may apply when it uses affiliate services, third-party content, or third-party software

Applicable law and arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with Optalert arising out of or relating to the Agreement (“Disputes”) shall be governed by Australian law regardless of the Client’s country of origin or where it accesses the Services, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods.  In the event of a dispute, the Client must provide a written Notice of Dispute to Optalert.  If within 20 Business Days of receipt of notice the parties to the dispute do not either, resolve the dispute, or agree as to:

(a)           a dispute resolution technique (for example, expert determination) and procedures to be adopted;

(b)           the timetable for all steps in those procedures; and

(c)           the selection and compensation of the independent person required for such technique,

the parties must mediate the dispute in accordance with the mediation rules of the Law Society of New South Wales and the parties must request the President of the Law Society of New South Wales or the President’s nominee to select the mediator and determine the mediator’s remuneration.

Waiver. The failure of Optalert to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

Term for cause of action. The Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Admissibility of printed version. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.

Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.

Amendments. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.Optalert.com or notifying the Client otherwise. If the Client does not want to agree to changes to the Agreement, the Client can terminate the Agreement at any time per Section 18 (Termination).

Assignment: The Client may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to the Client. We may also substitute, by way of unilateral novation, effective upon notice to the Client, Optalert for any third party that assumes our rights and obligations under this Agreement.