EyeJack Services Terms of Use

These Terms of Use (“Terms“) constitute a binding legal agreement the licensees and end users (referred to in these Terms by “you”, “your”, “yours”, and their derivatives), and EYEJACK PTY LTD  ABN 8061 5617 135 (referred to in these Terms as “Company“, “we”, “us”, “our”, “ours”, and their derivatives). These Terms govern your right to download, obtain, access, and make use of the EyeJack Creator desktop app and/or EyeJack mobile app, and any Company content, code, algorithms and other proprietary material and software contained in or made available via the EyeJack Creator desktop app and/or EyeJack mobile app (“EyeJack Services”), providing any content, including information, text, images, audio, video, and other materials and data for the purposes of setting up a user account, or for use or display by or to you or other parties, and/or accessing, using, or displaying any content or information provided by or via the EyeJack services. By downloading and/or using the EyeJack Services, you agree to be bound by these Terms. If you do not agree to these Terms, do not download or use the EyeJack Services and do not create an account. If the application or account has already been downloaded/created, you should permanently remove and delete the mobile application from your mobile device, deactivate any account you might have created and do not access or attempt to access the EyeJack Services.

  1.    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 applications.

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.

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, treatises 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. To the maximum extent permitted by law, you agree to defend, indemnify, and hold the Company (including our affiliated companies, officers, directors, employees and agents, successors and assigns), wholly and completely harmless from and against any claims, liabilities, damages, losses, and expenses (including attorneys’ fees), arising out of or in any way connected with your access to or use of the EyeJack Services or your violation of these Terms.

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.

  1.    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;
  •    make any features or functionalities of the EyeJack Services available to any other user or multiple users through any means; 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.
  1.    User Accounts

We may, in our discretion, require you to register and create an account (“Account“) in order to make use of or access EyeJack Services. 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 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.

While access to the EyeJack Services will be free initially, EyeJack reserves the right to introduce a subscription fee in the future. The timing, cost and terms applicable to such a subscription will be made available prior to the subscription coming into effect.

  1.    Privacy

Any personal information that you provide us (including any provided by you in connection with setting up your Account) shall be governed by and subject to our Privacy Policy, which governs our collection and use of your personal information. Our Privacy Policy is available at http://eyejackapp.com/pages/privacy

  1. 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 commercial 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 or violates the privacy 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);

(ii) You must not and will not publish lies, falsehoods or misrepresentations 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 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 Eye Jack Services and in accordance with these Terms of Use.

The Company does not endorse any content, and we express no opinion, recommendation, or advice regarding the content housed within the EyeJack Services.

To the maximum extent permitted by law, we expressly disclaim any and all liability in connection with, and you agree to indemnify and hold us harmless from and against any claim, liability, obligation, damages, or fees (including reasonable attorneys’ fees) resulting from any content uploaded or otherwise supplied by you. We have absolute discretion to determine whether your content is appropriate for use in EyeJack Services and any user guidelines published by us and these Terms of Use. We may remove any content and/or terminate your access for uploading objectionable content, without prior notice and at our sole discretion. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting, publishing or otherwise making available content or other materials that are believed to violate these Terms.

  1.    Ownership of Your Content and License to Use Your Content

You retain copyright in any content you submit, 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 agree to waive your right to enforce any such 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.

  1.    Our 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:

  1. the registered and unregistered trademarks, service marks and logos contained therein;
  2. 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.

  1.    Infringements

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.

  1.    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.

  1.  Termination

We may suspend, disable or terminate your access to EyeJack Services or any part of the same, at our sole discretion and without prior notice to you, should 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.

  1.  No Warranty

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.

  1.  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) 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 (i) errors, mistakes, or inaccuracies of content (ii) 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 services (iii) any unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (iv) any interruption or cessation of transmission to or from the EyeJack services, and/or (v) any errors or omissions in any content or for 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 and conditions. 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)) 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.

You specifically acknowledge that the company shall not be liable for user submissions or the defamatory, offensive, or illegal conduct of any third party, including users, and that the risk of harm or damage from the foregoing rests entirely with you.

  1.  Indemnity

To the extent permitted by law, you agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, 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: (i) your use of and access to the EyeJack Services, including the functionalities and services provided therein; (ii) your violation of any term 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 caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the EyeJack Services.

  1.  Confidentiality

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.

  1.  Mobile Application

The EyeJack application (“Application”) will be available via the Apple App Store and the Google Play Store, for download to compatible devices. When you download an 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 Applications, 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.

  1.  Governing Law

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.

  1.  General

Access to EyeJack Services require 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.

These Terms, together with the Privacy Policy and any other terms and conditions and legal notices published by the Company on the EyeJack Services, shall constitute the entire agreement between you and the Company concerning the EyeJack Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and the Company's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. The Company reserves the right to amend these Terms at any time and without notice, and it is your responsibility to review these Terms for any changes. Your use of the EyeJack Services following any amendment of these Terms will signify your assent to and acceptance of its revised terms. The Company reserves the right to take appropriate legal action, where it deems necessary, against any person that breaches these Terms.

  1.  Contact

If you have any questions or complaints, you can contact us via email at support@eyejackapp.com

Beta Phase – Additional Terms

If you are invited and become a beta user of EyeJack Services, you will be supplied  with a link to access EyeJack Services and will be periodically asked about new planned features and your opinion towards them. This account will be at your disposal, allowing you to access, test and use any new features.

In this regard, you agree to the following:

  • Only you can use the EyeJack Services and your rights to do so are not transferable. You must not allow access to third parties (private or business) to your account, unless the Company provides you with prior written consent to do so.
  • The Company has absolute control over the EyeJack Services and the content thereon. The Company can, at its discretion, remove any content it deems to be inappropriate, not in line with its branding principles  or that it deems to be commercial content aimed at advertising campaigns without any artistic input, and block any person who posts such content via EyeJack Services.
  • You confirm that for all content uploaded via your account, you own the intellectual property rights or you have secured the intellectual property owner’s written confirmation prior to uploading said content.
  • You are solely responsible for the content uploaded via your account and such content must not be in breach of any applicable laws in Australia or in any other relevant jurisdiction.
  • You grant and license the Company the right to use your content, in its original form and in the resulting integration (with animation and other effects, in its AR form) for marketing and branding purposes of the Company and the EyeJack Services only, in any and all media, worldwide, without remuneration or royalties, for an indefinite period and for internal business purposes. The Company will never reproduce and sell copies of your content, without your prior consent.
  • You must not reverse engineer, copy and/or parallel develop the technology of the Company, including as contained and integrated in the EyeJack Services.
  • You agree that you may receive periodic emails, newsletters and marketing materials from the Company and to take part in market research as required by the Company.
  •  The Company will not be liable or responsible for any alterations of content or any errors or mistakes that might occur in any beta version of the EyeJack Services.
  • You agree that the servers and services will be in continual development and subject to interruptions.

Any breach of these terms can trigger termination of your access, resulting in suspending or termination of the account. This termination does not affect any of the rights of the Company, including to seek penalties and compensation for any losses it suffers.

Users of the beta version of the EyeJack Services are also subject to the remainder of these Terms.