Pearlii Pty Limited ABN 87 637 995 512 (Pearlii, us or we) makes available the Pearlii App to end users (you) in accordance with and subject to these terms and conditions (Terms). These Terms contain important information, including disclaimers and limitations of liability in relation to the Pearlii App.
1. Acceptance of these Terms & Conditions
- You agree to be bound by these Terms by clicking the “I accept” button, or by otherwise using, browsing or accessing, and using any part of the Pearlii App.
- If you do not accept these Terms, you must not use the Pearlii App. If you breach any of these Terms, we may remove or block your access to the Pearlii App.
- We may, from time to time, review and update these Terms, including to take account of new laws,regulations, products or technology. Your use of the Pearlii App will be governed by the most recent Terms posted on the Pearlii Website. By continuing to use the Pearlii App, you agree to be bound by the most recent Terms. It is your responsibility to check the Pearlii Website regularly for updated versions of the Terms.
- You agree to use the Pearlii App in good faith in accordance with these Terms and Applicable Laws.
2. About the Pearlii App
The Pearlii App is an informational tool which allows you to upload photos of your teeth and check your photos against examples of common dental problems such as tooth decay and gingivitis (gum disease). The Pearlii App will also provide you information on these conditions, and allow you to make appointments with dentists if you would like to do so.
3. No medical advice or recommendations
- The Pearlii App is an information and educational tool only.
- All information contained on the Pearlii App:
(i) is not, and is not intended in any way to be, or to be a substitute for, professional medical or dental advice, nor does it replace a health care provider’s diagnosis or independent judgment about the appropriateness or risks of a procedure or treatment;
(ii) is general educational or factual information and does not involve any recommendation or statement of opinion by Pearlii or any third party; and
(iii) should not be relied on to form any diagnosis or determine any appropriate treatment for a particular medical or dental condition.
- To the greatest extent permitted by law, reliance on and use of any content on the Pearlii App is solely at your own risk. Please consult a health care provider for advice about a specific medical condition or treatment. Never disregard medical or dental advice or delay in seeking medical advice because of something you have read on the Pearlii App.
- The Pearlii App strives to be a valuable resource of information for its users. However, Pearlii cannot ensure and does not represent or warrant that the information provided is exhaustive or complete on every potential dental concern or that it will necessarily include any oral of the most recent information available on a particular topic. We make no representation that we will update or keep updated information made available through the Pearlii App.
4. No endorsement of dentists or “Find a Dentist” function
- The “Find a Dentist” function is provide and operated exclusively by myhealth1st, a third party provider. If you use the “Find a Dentist” function you leave the Pearlii App.
- The “Find a Dentist” function contains third party information and products. As such, the content available to you on the “Find a Dentist” function is not created,controlled, endorsed or approved by Pearlli. Pearlii takes no responsibility for any of the content on the”Find a Dentist” function. Pearlii gives no warranties and makes no representations, express or implied, about the”Find a Dentist” function, myhealth1st who operates the “Find a Dentist” function, the content on the “Find a Dentist” function or the quality of any of the products and services of the “Find a Dentist” function.
- The inclusion of any dental providers in the “Find a Dentist” function or the results of any search in the “Find a Dentist” function are not controlled by Pearlli and are not to be construed as:
(i) an endorsement by Pearlii of that provider;
(ii) a recommendation by Pearlii of that provider or confirmation of the status of the provider’s registration with their registration body, such as the Australian Health Practitioner Regulation Agency (AHPRA);
(iii) an acknowledgment or representation by Pearlii as to fitness for purpose of any products or services provided by any provider; or
(iv) a recommendation, warranty or guarantee by Pearlii of, for, or in relation to any product or service of the provider.
- Pearlii neither takes nor assumes any responsibility for any product or service provided by any provider. You should rely on your own inquiries and seek any assurance or warranties directly from the provider of the service or product, or with the relevant registration bodies (e.g. the AHPRA) regarding any conditions or restrictions to the provider’s registration.
- The “Find a Dentist” function only includes limited dental providers who have agreed to be listed with myhealth1st. The “Find a Dentist” function does not, and does not purport to, include all relevant providers of dental services. The providers included in the “Find a Dentist” function may change from time to time.
- You should be aware that the provision of dental services by a dental provider found through the “Find a Dentist” function will incur costs payable by you and/or your private health insurer. You should consider any applicable costs before booking with a dental provider.
- Pearlii relies on information provided to it by providers to provide the “Find a Dentist” function to you. Some of the information provided by providers to Pearlii may be incorrect, incomplete or out-of-date.
(i) To the greatest extent permitted by law, Pearlii accepts no liability or responsibility for:
(i) the availability, completeness or accuracy of any information included on the “Find a Dentist” function; or
(ii) any costs or expenses incurred by you in relation to your access to or use of the “Find a Dentist” function.
5. Linking to third party maps
- Some of the functionalities of the “Find a Dentist” function will only be available if you agree to provide information through the Pearlii App about your location. When you first use these functionalities, you will be asked to agree to provide Pearlii with information about your location. You can withdraw or provide your agreement after this time by altering your mobile smartphone settings.
6. Prohibited uses
When using the Pearlii App, you must not engage or attempt to engage in any activities that:
- disrupt, impair, alter or otherwise interfere with the functions, features, Content or Pearlii App;
- violate any applicable local, state, federal or international law including, without limitation the Spam Act 2003 (Cth), the Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;
- introduce or allow the introduction, transmission,distribution or uploading of any, virus or other potentially harmful programs, materials, information or malicious code into the Pearlii App or any related network;
- use any device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Pearlii App or its contents;
- modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Pearlii App or its contents to a human-perceivable form;
- remove any copyright, trademark or other proprietary rights notices contained in the Pearlii App;
- harvest or collect information about Pearlii App visitors or users;
- involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others;
- gain unauthorised access to the Pearlii App;
- restrict or inhibit any other visitor from using the Pearlii App, including, without limitation, by means of “hacking” or defacing a portion of the Pearlii App;
- result in the placement, posting, uploading of, linking to, sending, storing or otherwise communicating or distributing in any way content that is (or is likely to be considered) inappropriate, defamatory, abusive, profane, infringing, obscene, indecent, or unlawful material or information;
- violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy, pornography, obscenity or libel);
- involve distribution of unsolicited advertising or chain letters, harassment of other users or third parties, impersonating another user, falsifying a user’s network identity for improper or illegal purposes, gaining unauthorised access any parts of the Pearlii App, sending unsolicited bulk emails or calls, continuing to send someone email after being asked to stop and using a network to gain unauthorised entry to any other machine accessible via a network;
- are commercial, including selling, modifying, displaying, distributing or otherwise using any Content, in whole or in part, for any public or commercial purpose without Pearlii’s prior written consent, marketing, advertising or promoting goods or services, collecting and using any product lists or pricing for the benefit of other merchants, or re-selling, sublicensing or translating the Pearlii App;
- use any meta-tags or any other “hidden text” utilising Pearlii’s name or Content without our express written permission; or
- frame the Pearlii App, or utilise framing techniques on any part of the Pearlii App, without our express written permission.
7. Your security and credentials
- Your security credentials enable you and Pearlii to prevent unauthorised access to your personal details. We may from time to time for security reasons require you to re-authenticate yourself, or issue directions regarding your use of your security credentials.
- You agree to be liable if your login details are used by an unauthorised person and are fully responsible for all activities that are conducted under your login. You must keep your credentials confidential at all times and must not permit anyone else to use your security credentials.
- You represent and warrant that you are the individual identified in the login. We are entitled to assume (and we will assume) that you are the user whenever your security credentials are used to access the Pearlii App.
- If you believe that any of your login details have been compromised, lost or misplaced, you must contact us immediately by email at email@example.com.
8. Privacy and use of your information
- (a) Pearlii collects and uses your personal (including sensitive) information (Information) to provide you with,develop and continue to improve the Pearlii App, including:
(i) to provide you with information about common dental conditions;
(ii) to facilitate your dental health consultations with dental providers;
(iii) to review, develop, improve, build and train the machine learning algorithms for identification of dental concerns; and
9. Your Content
- The Pearlii App may allow you to upload, post, link to, store, communicate, send or transmit content (Your Content) on the Pearlii App.
- You grant to us a non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, modify, reproduce, adapt, communicate, display, perform and distribute Your Content in relation to and for the purpose of our operation of the Pearlii App and algorithm.
- You represent and warrant that Your Content does not infringe any third party intellectual property rights and that you own or otherwise control all of the rights to the content or that you have obtained all necessary authorisations and consents to post, link to, store or communicate Your Content and to grant us the rights in clause 9(b), that Your Content is accurate, that the use of Your Content does not violate these Terms and will not cause any loss or injury to any person. You agree to be solely responsible for any of Your Content that you post to the Pearlii App.
- We have the right, but not the obligation, to monitor any Content (including Your Content) made available on the Pearlii App. We reserve the right, in our absolute discretion, to block, modify or remove any Content (including Your Content) without notice and will not be liable in any way for possible consequences of such actions.
- If you have a complaint regarding any Content, our sole obligation will be to review any written complaint notified to us and, if we see fit, in our sole discretion, to modify or remove the particular Content.
- To the extent that you have any moral rights (including pursuant to the Copyright Act 1968 (Cth)) in Your Content, by agreeing to these Terms, you provide an irrevocable and unconditional consent in favour of Pearlii, its successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with Your Content (whether or not currently in existence) to:
(i) perform, exhibit, reproduce, adapt and communicate any part of Your Content in any medium and anywhere in the world without attributing you or any other person as an author of or contributor to Your Content;
(ii) do any act or omission that would constitute a derogatory treatment of Your Content;
(iii) make any use of Your Content that may falsely attribute authorship of Your Content to another person;
(iv) delete or adapt or change any of Your Content in any way, including by addition to or subtraction from Your Content; or
(v) combine or juxtapose Your Content with anything else.
10. Pearlii Intellectual Property
- All intellectual property rights (including copyright and patents) in the Pearlii App and Content and all components of them are owned or licensed by us unless otherwise indicated. You must not copy, modify or transmit any part of the Pearlii App or any Content except as permitted in these Terms.
- The Pearlii App and Content contain trademarks, logos,service names and trade names of Pearlii or third parties that may be registered or otherwise protected by law. These include the Pearlii logo. You are not permitted to use any trademarks, logos, service names or trade names appearing on the Pearlii App.
11. Changing the App
We are constantly changing and improving the Pearlii App. We may adapt, add or remove functionalities or features, and we may suspend or stop a service offered through the Pearlii App, or the Pearlii App itself, altogether.
12. Use outside of Australia
Pearlii makes no claims that the Pearlii App is appropriate, legal or may be downloaded outside Australia. Access to the Pearlii App and other content and services may not be legal by certain persons or in certain countries. If you access the Pearlii App from outside Australia, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction
13. Disclaimer of warranties and limitation of liability
- You agree that you have not relied on any representation, description, illustration or specification that is not expressly stated in these Terms.
- Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL), or any other applicable law, that cannot be excluded, restricted or modified by agreement.
- To the extent permitted by law (including the ACL), Pearlii excludes all warranties, whether express or implied (not including any consumer guarantees under the ACL), including any warranties or representations concerning availability of the Pearlii App, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the Pearlii App including Content, all links to or from the Pearlii App and the goods and services advertised or accessible using the Pearlii App.
- Subject to the consumer guarantees provided for in consumer protection legislation (including the ACL), we do not warrant that you will have continuous access to the Pearlii App or that it will be supplied fault free. We will not be liable in the event that the Pearlii App or the full functionality of the Pearlii App is unavailable to you for any reason including due to network or hardware downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply.
- We do not guarantee the delivery of communications over the internet as such communications rely on third party service providers. The exchange of information electronically is vulnerable to interception by third parties and we do not guarantee the security or confidentiality of information available through the Pearlii App nor the security of the Pearlii App.
- To the extent permitted by law (including the ACL), Pearlii’s liability in respect of any non-excludable warranties or conditions relating to the Pearlii App including Content, all links to or from the Pearlii App, and the goods and services advertised or accessible using the content is limited to resupplying the relevant Pearlii App or the reasonable cost of resupplying the relevant Pearlii App, whichever Pearlii sees fit to provide.
- For all other claims or liability, and to the extent permitted by law, the maximum liability of Pearlii and its employees, agents or contractors) for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with these Terms, the Pearlii App, all links to or from the Pearlii App will be [insert cap].
- Except where Pearlii fails to meet a consumer guarantee under the ACL and notwithstanding any other provision of these Terms, Pearlii will not be liable to you for any damage, loss or expense resulting from or caused by:
(i) any act of Pearlii which was carried out in good faith (notwithstanding that such act may have been in breach of these Terms or negligent);
(ii) any act or omission of any third party;
(iii) any inaccurate or incorrect Third Party Information;
(iv) any inaccurate or incorrect information in Your Content or otherwise provided by you;
(v) any event or circumstance beyond Pearlii’s reasonable control including, without limitation, a Force Majeure Event;
(vi) any breach of these Terms, negligence, default, fraud or dishonesty by you;
- To the greatest extent permitted by law, Pearlii will not be liable to you for any direct or indirect lost profit, loss of opportunity, incidental, consequential or special damages, howsoever the loss is caused and regardless of whether it was foreseeable or not.
You agree to indemnify Pearlii in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings it incurs howsoever arising, whether at common law (including negligence) or under statute, in connection with any breach of these Terms by you.
15. Minimum Terms Required by Apple
If you have obtained the Pearlii App via Apple’s App Store, this clause 15 applies. You acknowledge and agree that:
- these terms and conditions are between you and Pearlii, and not Apple, Inc. (Apple);
- Pearlii, and not Apple, is solely responsible for the Pearlii App;
- your use of the Pearlii App is subject to Apple’s Usage Rules set out in the App Store Terms and Conditions set out at http://www.apple.com/legal/ internet-services/itunes/ au/terms.html#APPS;
- Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Pearlii App;
- in the event of any failure of the Pearlii App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the Pearlii App;
- subject to the consumer guarantees provided for in consumer protection legislation (including the ACL), Apple will have no other warranty obligation whatsoever with respect to the Pearlii App;
- Apple is not responsible for any claims that you have arising out of your use of the Pearlii App;
- Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any third party claim that the Pearlii App infringes that third party’s intellectual property rights; and
(i) Apple and its subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of these terms and conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
- You represent and warrant that:
(i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and
(ii) you are not listed on any United States Government list of prohibited or restricted parties.
16. Contacting Pearlii
Where any failure or delay by a party (Affected Party) in the performance of its obligations under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
- the Affected Party must as soon as practicable give the other party written notice of that fact;
- the Affected Party is not liable for that failure or delay;
- the Affected Party’s obligations under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and
- if the Force Majeure Event continues for more than 90 consecutive days and while it continues, any party other than the Affected Party may, at its sole discretion, terminate this Agreement by giving written notice to the Affected Party and all other parties (if any).
- This Agreement is governed by and construed in accordance with the laws of Victoria. The parties to this Agreement submit to the non-exclusive jurisdiction of the Courts of Victoria.
- This Agreement, and any provision of this Agreement,are not to be construed to the disadvantage of a party because that party was responsible for their preparation.
- Headings in this Agreement are intended for convenience of reference only. Forms of words will be construed to include singular or plural, and any gender,masculine, feminine, or neutral, as the context requires,and “including” means “including but not limited to”. Reference to a person includes an individual,corporation, trust or statutory body.
- Nothing in this Agreement will be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary between you and Pearlii.
(i) Any provision of this Agreement (or any part thereof) which is invalid in any jurisdiction must, in relation to that jurisdiction:
(i) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(ii) be severed from this Agreement in any other case, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
- No amendment to, or waiver of right under, this Agreement is effective unless in writing signed by the authorised representatives of the parties.
ACL means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Applicable Law means the Corporations Act 2001 (Cth) and any other statute, statutory instrument or general law that is applicable to a party in connection with this Agreement,
Force Majeure Event means any act, event or cause, other than a lack of funds, which:
- directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this Agreement; and
- is beyond the reasonable control of that party.
Content means any content, information or materials available through the Pearlii App.
- principles of law or equity established by decisions of courts;
- statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia; and
- requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia that have the force of law.
Pearlii means Pearlii Pty Limited ABN 87 637 995 512.
Pearlii App means the Pearlii branded mobile application available for download through the Apple App Store or Google Play.
Third Party Information means all Content supplied by a third party and incorporated into the Pearlii App, including any maps information and information in relation to dental providers.
Your Content has the meaning given in clause 9(a) of these Terms.
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