General Terms Applicable to Use of EyeJack Services
As used in these Terms, “EyeJack Services” refers to our proprietary products, software, and service that allow users to transform compatible artworks into augmented reality pieces and view and download other user’s content (where they elect to publish it), and include the EyeJack Creator desktop app and EyeJack mobile app.
As per the above, you will be able to view selected augmented reality content of other users, where they elect to publish it on the EyeJack Services. Any such content of other users made available for viewing or download can only be used for private purposes and cannot be altered, used or otherwise reproduced for commercial purposes (e.g. to sell or license), unless otherwise indicated by the relevant copyright owner.
By your access and use of the EyeJack Services, you affirm that you are either 18 years of age or older, or an emancipated minor, or possess parental or guardian consent. You also affirm that you are fully able and competent to enter into these terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms, or that your parent or guardian is and does on your behalf.
For the sake of clarity, in certain instances these Terms may be entered into by a single licensee on behalf of a group of end users, specifically in the case of educational institutions who procure the use of the EyeJack Services on behalf of students, some or all of whom may be under the age of 18+. In these instances, unless expressly agreed otherwise by us, the licensee enters into these Terms on behalf of the students in each case and is responsible for the conduct of the students using the EyeJack Services.
We reserve the right to modify or discontinue all or any portion of the software, applications, functionalities, design, makeup, content, and delivery systems that are included as part of or through the EyeJack Services, and/or to update or revise the EyeJack Services, at any time, in our sole discretion and without prior notice to you. We reserve the right to temporarily or permanently cease providing or supporting the EyeJack Services in their entirety or in part, or any of the content contained therein, to you or to end users generally, or to place limits on access to the EyeJack Services or any of its features or functionalities, with or without notice, at our discretion.
EyeJack Services may only be used for lawful purposes and in accordance with these Terms. You agree to comply with the applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the EyeJack Services.
In addition and without limitation, you agree that you will not do any of the following in downloading, using or accessing EyeJack Services:
- attempt to gain access to or search any of our systems or functionalities, or attempt to download content within the EyeJack Services, through the use of any search or download engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software, search agents, and interface(s) we provide and include for use within EyeJack Services;
- attempt to access, tamper with, or use non-public or restricted area information, areas, servers, equipment, or facilities, of the EyeJack Services;
- gather the information of other users, such as their usernames, login information, real names, email addresses, and the like, or transmit any unsolicited advertising, junk mail, spam or other form of solicitation;
- use EyeJack Services for the benefit of any third party or in any manner not indicated as approved by these Terms;
- violate any applicable law or regulation, including the laws applicable in Australia; or
- encourage or enable any other individual to do any of the foregoing.
We reserve the right to investigate and prosecute breaches of any of the above terms and/or involve and cooperate with the applicable law enforcement authorities in prosecuting users who violate these Terms and/or the applicable laws. You acknowledge that we have full right and authority, but not the obligation, to monitor your access to or use of the EyeJack Services, for operation and maintenance, to ensure your compliance with these Terms, to comply with applicable law, rule, regulation, or for any other legitimate purpose.
You agree that we may place, or may authorise third parties to place, advertising, marketing and promotional materials within the EyeJack Services.
You expressly consent to the provision and collection of location-based services and information in connection with the EyeJack Services.
Access to EyeJack Services requires a connection to the Internet in order to function. Your device will need to be connected either via Wi-Fi or a 3G/4G data connection. You are responsible for all charges by your Internet service provider or carrier for Internet access.
Limited License to Use the EyeJack Services
You are only permitted to use the EyeJack Services in line with the functionalities offered by the EyeJack Services, including to upload and integrate your content into an augmented reality piece.
You may not:
- copy, modify or distribute the EyeJack Services for any purpose;
- transfer, sublicense, lease, lend, rent or otherwise distribute the EyeJack Services to any third party;
- decompile, reverse-engineer, disassemble, or create derivative works of the EyeJack Services; or
- use the EyeJack Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms. We and/or our affiliates and licensors are exclusive owners of all right, title and interest, including all associated intellectual property rights in the EyeJack Services, and we reserve any rights not explicitly granted in these Terms.
We may, in our discretion, require you to register and create an account (“Account”) in order to make use of or access EyeJack Services and/or sign up to a Subscription Plan. In creating an Account, you represent that you are aged 18 years or over and able to form a legally binding contract. When creating an Account, you may be required to provide certain personal information about yourself and establish a username and a password. You agree to provide accurate, current and complete information when creating your Account and to update such information as needed. We may suspend or terminate your Account (including any associated Subscription Plan) if any information provided during the registration process or thereafter proves to be incomplete, inaccurate, false or misleading. You are responsible for safeguarding your password and for any activities or actions under your Account, whether or not you have authorised such activities or actions. To the maximum extent permitted by law, we are not liable for any loss or damages you might suffer due to a third party accessing your Account and/or obtaining access to any information provided by you in connection with your Account, or for any other loss or damage arising from your failure to comply with these requirements.
EyeJack reserves the right to introduce new subscription fees or plans or amend subscription fees or plans in the future. The timing, cost and terms applicable to such a plans will be made available prior to any such plan coming into effect. The current plans are as outlined below, although they are subject to change.
There are currently three (3) Subscription Plan options:
(i) ‘Free Subscription Plan’ - Up to 1,000 free views per month. Does not include the ability to publish collections.
(ii) ‘Artist Subscription Plan’ - Up to 10,000 views per month, at USD$10 per month, and USD$0.01 per view once limit is reached.
(iii) ‘Business Subscription Plan’ - Up to 100,000 views per month, at USD$100 per month, and USD$0.01 per view once limit is reached.
Each referred to as “Subscription Plan”. Further details on each Subscription Plan can be found https://eyejackapp.com/pages/creator-plans, and should be read together with these Terms.
When signing-up to a Subscription Plan, individuals can manage their subscription, including payment details, upgrade of a Subscription Plan, cancellation of a Subscription Plan, and other such factors.
For clarity, these Terms relate to all Subscription Plans now and, in the future, unless we expressly specify otherwise.
Charges and Fees for Subscription Plans
As a subscriber to one of the Subscription Plans, you agree as follows:
(i) You agree to pay, using a valid credit card (or other form of payment which we may accept from time to time), the fixed and periodic charges and fees set forth by Company, applicable taxes, and other charges and fees incurred in order to use or access the EyeJack Services under a Subscription Plan.
(ii) We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon advance notice communicated to you through a posting on the EyeJack Creator desktop app and/or EyeJack mobile app or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail).
(iii) After initial payment of a Subscription Plan, your Account will be updated to a recurring monthly subscription for the Subscription Plan you have purchased. We will automatically charge your credit card (or other account) the applicable monthly fee at the start of each monthly renewal period (corresponding to the date of initial payment), unless you cancel your subscription before you are charged for the relevant renewal period. In the event we cannot charge your Account, we reserve the right to discontinue or terminate your Subscription Plan and use of or access to the EyeJack Services.
(iv) All fixed and periodic charges and fees for our Subscription Plans are quoted in US dollars and are inclusive of any applicable VAT or GST, except where otherwise stated.
(v) In addition to the Subscription Plan fees and charges, you are responsible for all charges and fees associated with signing up for, using and in connection to the Subscription Plan and connecting to the EyeJack Services, including without limitation internet service provider fees, telephone, computer and printer equipment, sales taxes and any other fees and charges necessary to use or access the EyeJack Services. In addition, you may incur an additional processing and/or merchant charge from your financial institution on each payment you make for our Subscription Plan.
(vi) For the purposes of your access to and use of the EyeJack Services, including identification and billing you agree to provide us with true, accurate and complete information as required by the subscription or sign up process to the Subscription Plan ("Subscription Data"), including your legal name, address, telephone number, email address and applicable billing information (e.g. credit card number and expiration date), and to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your Account. You agree to maintain and promptly update the Subscription Data and any other information you provide to us, to keep it accurate at all times. Without limiting any other provision of these Terms, if you provide any information that is untrue, inaccurate, or incomplete, or Company has reasonable grounds to suspect that such is the case, Company reserves the right to suspend or terminate your Account or Subscription Plan and refuse any and all current or future use and/or access by you of any of the EyeJack Services. You are obligated to check your Account details to determine whether your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data. Other than where expressly allowed by us, you agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the EyeJack Services.
(vii) If your Subscription Plan is revoked for any reason, you agree not to sign-up or subscribe again using another Account or through any other means unless approved by Company. If Company has reason to suspect, in our sole discretion, that your Subscription Plan or Account has previously been terminated, Company reserves the right to terminate any new Subscription Plans signed up to or Accounts you have registered without any notice to you, or to exercise any other remedies available to Company under these Terms or by law.
(viii) In the event of a breach of security by you using the EyeJack Services, you will remain liable for any unauthorised use of your Subscription Plan until you update your Subscription Data. You are entirely responsible for any and all activities which occur under your Account. You are responsible for paying any amounts billed to your credit card by a third party which were not authorised by you.
(ix) Except for your statutory rights which are unaffected, should you wish to cancel any Subscription Plan, refunds are not permitted (unless otherwise stated), regardless of whether you have used any EyeJack Services during that subscription period.
Warranties and Conditions
You agree and warrant the following:
(i) You must not and will not upload, post, email, reproduce or otherwise transmit:
(a) any content which you do not have the lawful right to upload, copy, transmit, publish, reproduce, display or otherwise exploit (including but not limited to any content that would violate any confidentiality or fiduciary obligations that you might have with respect to the content); or
(b) any content that infringes the intellectual property rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); or
(c) any content that violates the privacy rights of any third party.
(ii) You must not and will not publish any content that could damage the Company, our business, any of our affiliates, partners, end users, or any third party;
(iii) You must not and will not submit material that is false, untruthful, unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
(iv) You will not impersonate another person or entity; and
(v) You must not and will not copy, publish, adapt, modify or otherwise reproduce content of other users or any content that is the property of the Company or its licensees, that is made available via the EyeJack Services, other than as made available by the users and the Company via the standard functionality of the EyeJack Services and in accordance with these Terms.
The Company does not endorse any content, and we express no opinion, recommendation, or advice regarding the content housed within the EyeJack Services.
Ownership of Your Content and License to Use Your Content
You retain copyright in any content you submit to the EyeJack Services, and your use of the EyeJack Services will not transfer any ownership in your content to the Company.
By using the EyeJack Services and uploading content you agree that we may, and we expressly reserve the rights to, use content you upload or otherwise provide via the EyeJack Services, in its original form and/or in the resulting integration (with animation and other effects, in its augmented reality form) for marketing and branding purposes of the Company and the EyeJack Services, in any and all media, worldwide, without remuneration or royalties, for an indefinite period, and for internal administrative and business purposes. In this respect, you agree that any such use will not be subject to your prior approval and that we have the right to edit, modify and adapt your content, as we deem necessary for these purposes. We will not replicate content uploaded or generated by you for direct commercial / selling purposes.
By uploading content, you agree to that content undergoing the transformations as available within the EyeJack Services and as selected by you, and to being displayed via the EyeJack Services (in its original and integrated form), including that the content may be viewed by other users, where you elect to publish it and/or make it available for download. Content submitted by you cannot be lawfully downloaded via the EyeJack Services by other users without your consent (e.g. unless you elect to publish it and make it available for download). However, if you elect to publish your content via the EyeJack Services (and make it available for public viewing or download), you license and grant each user to view and download such content for their own private, non-commercial use, for an indefinite period and without any compensation.
If you have any moral rights (or similar rights) in respect of the content that you upload or otherwise submit and the Company elects to reproduce or modify as contemplated in these Terms, you consent to the Company doing or omitting to do anything that would otherwise be an infringement of your moral rights, in perpetuity, to the maximum extent permitted by law. If any other person has moral rights in respect of your content, you must ensure that they agree to the above before you submit the content.
You may not copy, modify, publish or otherwise reproduce, remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying EyeJack Services, or any content not uploaded or provided by you.
Excluding any content uploaded by users, all content on the EyeJack Services, including without limitation:
- the registered and unregistered trademarks, service marks and logos contained therein;
- software, source code, scripts, imagery, graphics, photos, sounds, music, videos, and any other intellectual property;
(collectively, the "Company Content"), are owned by or licensed to the Company, and are subject to copyright and other intellectual property rights under the law. Company Content is provided to you ‘as is’ for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the prior written consent of the respective owners or as permitted in these Terms. The Company reserves all rights not expressly granted in and to the EyeJack Services and the Company Content.
Any blog posts or articles published on the EyeJack Services are of a general nature and do not consider your personal circumstances or objectives. Such content should not be regarded as advice and should not be used in place of professional advice.
We may terminate your access to EyeJack Services and/or remove any of your content if we have reason to believe your actions in using EyeJack Services, including any content you upload is deemed inappropriate by EyeJack or infringes the copyright, trademark, or other intellectual property rights of any third party.
If you believe that works in which you retain intellectual property rights have been copied, uploaded to, and made available via the EyeJack Services in a way that constitutes infringement, please notify us immediately, and provide the following details:
(i) the details of the copyright owner;
(ii) a description of the copyrighted work that you claim has been infringed;
(iii) a description of what material you believe to infringe your rights and where that material is located within EyeJack Services;
(iv) your address, telephone number and email address;
(v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, in the form of a statutory declaration, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf.
We will investigate any complaints received and take actions that we deem appropriate.
Third Party Links
EyeJack Services may display links to third party websites, resources, products, offerings and services not housed within the EyeJack Services and/or managed or controlled by us (“Third Party Links”). We assume no responsibility for Third Party Links, and you are solely responsible for and assume all risk arising from your use, access, or reliance of any Third Party Links.
Specifically but without limitation, we shall not be responsible or liable for, to the maximum extent permitted by law:
(i) the availability, accuracy, quality or reliability of such Third Party Links; or
(ii) the information, products, or services available on or through such Third Party Links. Existence of any Third Party Link, including third party websites you could use to offer your content for sale or license, should not be interpreted as, and does not constitute, an endorsement by us of that Third Party Links, its publisher, or anything relating thereto.
We may suspend, disable or terminate your access to your Account and/or Subscription Plan and the EyeJack Services or any part of the same, at our sole discretion and without prior notice to you, including where you violate these Terms. To the extent permitted by law, we will not be liable to you or any third party for termination of your access or use. Suspension or termination will not affect any of your obligations under these Terms (including, without limitation, ownership, confidentiality, indemnification and limitation of liability), which by their context are intended to survive such suspension or termination.
Your access and use of the EyeJack Services is at your sole discretion and risk. To the maximum extent permitted by law, we will not be responsible for any damage or harm to any computer or mobile device, loss of data or other harm that results from your use of EyeJack Services. EyeJack Services are provided “as available” and “as is”. We do not warrant that any portion of the EyeJack Services will meet your needs or requirements, will be secure, will operate without interruption or will be error free. No advice or information, whether oral or written, obtained by you from us or any of our affiliates, agents, partners, employees, successors, or assigns, will create any warranty not expressly stated in these Terms.
Limitation of Liability
To the extent permitted by law and subject to the rights you may have under the Australian Consumer Law (as enshrined within Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and any other applicable laws that cannot be excluded, in no event shall the Company, its officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages or loss whatsoever resulting from any
- errors, mistakes, omissions or inaccuracies of any content;
- personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the EyeJack Services, the EyeJack Services or products of the Company or advertisers on the EyeJackServices;
- any unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein;
- user submissions or the defamatory, offensive, or illegal conduct of any third party, including users;
- any interruption or cessation of transmission to or from the EyeJack Services, and/or
- any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the EyeJack Services, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Company is advised of the possibility of such damages.
While the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction, where conditions, warranties or other rights are implied into terms or otherwise conferred by law, and it is not lawful or possible to exclude them, then those conditions, warranties or other rights will (but only to the extent required by law) apply to these Terms.
Subject to the rights you may have under the Australian Consumer Law and any other applicable laws that cannot be excluded, at the option of the Company, our liability for breach of implied conditions or warranties is limited, to the extent permitted by law to, if the breach relates to goods, (i) the replacement of the goods or the supply of equivalent goods, (ii) the repair of the goods, (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods, or (iv) the payment of having the goods repaired and, if the breach relates to services, (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again. For clarity, nothing in these Terms purports to limit the application of any statutory consumer warranties or rights.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from or connected with: (i) your use of and access to the EyeJack Services, including the functionalities and services provided therein; (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any copyright, intellectual property, real property or privacy right; or (iv) any claim that one of your submissions to the EyeJack Services or content uploaded or otherwise supplied by you caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the EyeJack Services.
Except as expressly and unambiguously permitted hereunder, you agree to hold in confidence and not use or disclose any materials or information disclosed by us, our affiliates, or our licensors, that are confidential or proprietary or which may be reasonably regarded as the confidential information or notified to you to be confidential information (“Confidential Information“). You shall treat as confidential all Confidential Information provided to you and must not disclose it to any other person or in any way not authorised by us. Confidential Information will not include any materials or information that:
(i) is now, or later becomes, through no act or failure to act on your part, generally known or available to the public;
(ii) is known by you at the time of disclosure as evidenced by written record, without obligation of confidentiality;
(iii) is furnished to you by a third party, as a matter of right and without restriction on disclosure;
(iv) is independently developed by you without any breach of these Terms;
(v) is the subject of an express written permission to disclose provided by us; or
(vi) is disclosed in response to a valid order of a court or other governmental body or as required by law.
The EyeJack mobile application (“Application”) will be available via the Apple App Store and the Google Play Store, for download to compatible devices. When you download the Application, you are granted a non-transferable licence to use the Application on your device, in the way intended and provided for within the normal functionality of the Application only.
You acknowledge that we may from time to time issue upgraded versions of the Application, and may automatically electronically upgrade the version of the Application that you are using on your compatible device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades.
The following additional terms and conditions apply to any Application that is available and downloaded via an Apple iOS-powered mobile device (an “iOS App”):
- Your use of the iOS App must comply with Apple’s App Store Terms of Service.
- You acknowledge that these Terms are between you and the Company only, and not with Apple, Inc. (“Apple”). The Company, and not Apple, is responsible for the iOS App. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
- You agree that the Company, and not Apple, is responsible for addressing any claims by you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection laws or similar legislation, and all such claims are governed solely by these Terms and any law applicable to the Company as the provider of the iOS App.
- You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your download and use of the iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms and Conditions as they relate to your license and use of the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Application that the Company may provide to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms and Conditions are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Android App must comply with Google’s then-current Google Play Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. The Company, and not Google, is solely responsible for the Android App and the Services. Google has no obligation or liability to you with respect to the Android App or these Terms.
If you hold an Account and use the EyeJack Services via the EyeJack Creator iOS or Android App, you have the option to allow other users to view and download content that you create by purchasing a download pack which allows your content to be shared to a set number of downloads (“Download Pack”).
The following additional terms and conditions apply to users who purchase a Download Pack
- you must have an Apple iTunes account or a Google account and the EyeJack Creator iOS or Android App;
- payment is made solely via an Apple iTunes account or a Google account as applicable and in accordance with and governed by the Apple iTunes terms and conditions and the Google Play terms of service. The Company is not responsible for any purchases made via an Apple iTunes account or Google account and is not liable for any loss or damage you may suffer as a result of using the Apple iTunes or Google payment gateway;
- fees and charges for each Download Pack will be billed to you automatically via the set payment method specified in your iTunes or Google account;
- the full fees and charges for each Download Pack will apply regardless of whether or not users download your content and there is no reimbursement, credit or refund for any unused or remaining downloads;
- the fees and charges for each Download Pack are as set out in the EyeJack Creator App in Australian Dollars (AUD) and the Company reserves the right to vary the fees and charges for the Download Packs from time to time; and
- a Download Pack will expire when the number of downloads in the Download Pack has been exhausted. A subsequent Download Pack will need to be purchased to allow users to continue viewing your content.
These Terms and Conditions shall be governed by and construed in accordance with the laws of New South Wales, Australia. You irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia, and the courts that may hear appeals from them.
If you have any questions or complaints, you can contact us via email at email@example.com