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ASSORT PTY LTD AGREEMENT (INCLUDING SOFTWARE LICENSE)

ASSORT® (A.B.N. 40 006 888 697)
 Tel. (61.3) 9584 6966
 Fax. (61.3) 9585 0995
 
ASSORT PTY LTD AGREEMENT (INCLUDING SOFTWARE LICENSE)

 These terms are a legal agreement between you (as Licensee) and Assort Pty Ltd (ABN 40 006 888 697) ("Assort").

By ordering, reproducing, installing or using all or any part of any software product made available by Assort (whether as initially supplied, or supplied as part of any updates/upgrades) ("Software") or by requesting any other supply from Assort (or permitting any of these acts), you accept and agree to all of these terms (including in respect of that Software, any Software related material, any Software support and any other service which Assort may provide).

1. GRANT OF LICENSE - Upon payment of the applicable license fee (if any) and your registration under any registration procedure used or required, Assort grants you, subject to these terms, a personal, non-transferable license over one copy of the object code version of the Software ("license"). You agree that these terms are subject to any Assort registration processes relating to your license which are not inconsistent with these terms and is limited by all of the following, namely these terms permitting only (subject to the permissions under INTELLECTUAL PROPERTY below): 
• one copy only of the Software being installed on a non-networked single device (for example, computer server or, if applicable, corneal topography device);
• use of the licensed copy of the Software for no more than the authorized quantities and/or functions as stated in Assort’s registration notice to you (whether as to surgeries, patients, procedures, import/export functions or otherwise);
• use of the licensed copy of the Software by no more than the authorized number of individual users (as stated in Assort's registration notice to you) causing that copy to be run/executed by that device solely for the purpose of your surgical eye practise by qualified surgical eye practitioners engaged for that practise; and 
• users who are aware of these terms and agree to be bound by them as if named as you. You agree that Assort may treat the acts or omissions of anyone you permit to access or use the Software, or whose access to or use of the Software you are able to prevent, as your own acts and omissions.

2. INTELLECTUAL PROPERTY - These terms do not license any data. You agree not to make any use of any data generated using the Software to make any submission to any agency or any government or any organization that is responsible for or participates in relation to standards for eye treatment concerning laser technology, without Assort's prior written consent in each instance. You may (a) make one copy of the licensed copy of the Software solely for backup or archival purposes; (b) transfer the licensed copy of the Software to a single hard disk provided you keep the original solely for backup or archival purposes and (c) do any other act which is a defense to copyright infringement under any applicable laws pertaining to copyright provided any prohibition by Assort of such act would contravene such laws. You must not transfer or otherwise deal with any circumvention device (which includes any registration code) issued by Assort. You must not do or permit any act in relation to the Software or any Software related material made available by Assort which is not expressly authorised by these terms.

3. IMPORTANT WARNINGS & YOUR ACKNOWLEDGEMENTS – You acknowledge the following, including that they are very important warnings regarding your use of the Software (which, in this clause, includes any Software related material made available by Assort): (a) eye treatment is a highly skilled activity, to be undertaken only by appropriately qualified, experienced and trained eye surgeons; (b) you have had the opportunity to fully inspect and understand the functionality and performance of the Software prior to agreeing to these terms and that you accept the Software as it is provided; (c) by using the Software you accept that there are important limitations to the Software's ability to assist in the determination of optimum surgical parameters; (d) the Software cannot detect faulty or aberrant input data, cannot take into account all of the factors that should be considered before determining the treatment for any particular patient and may not be appropriate for use in any way connected with the treatment of some or all patients; (e) each medical situation should be considered unique to each patient, and all treatments individualized accordingly; (f) the Software is not a substitute for appropriate medical education and training or for the exercise of independent medical judgment; (g) you should not make any use or permit any use to be made of the Software other than as described in Assort's published Software-related material made available by Assort (including when you register your license of the Software under Assort's registration procedures); (h) there are no qualitative measures and no purposes or results, fitness for which or the achievement for which is expressly or impliedly required of the Software; (i) Assort does not practice medicine; (j) you have not relied on Assort (including on Assort's skill or judgement); (k) any results from the use of the Software may not be accurate or complete; (l) Assort does not endorse or recommend any particular techniques associated with21 March 2012 the Software and other techniques may be appropriate in any particular situation; (m) you will not make or permit any access to or use of the Software unless you have in place appropriate strategies to manage all risks associated with use of the Software, including ensuring that only eye surgeons who are appropriately qualified, experienced and trained are permitted to use the Software; (n) none of the Software and results obtained from use of the Software should ever be relied on in the place of the independent professional judgement of an appropriately qualified, experienced, trained and independent eye surgeon; (o) any medical procedure has associated complications and risks, and the practice of medicine and standards of care may change over time which may warrant a review of use of the Software; (p) up to date independent research literature should always be consulted; (q) if Assort provides any service to you (including training and responding to any requests for assistance), such provision is on the basis that you accept all risks that any such service may not meet your requirements or meet any particular results, may be inaccurate or incomplete and is also on the basis that no terms or rights or representations have been or are given in relation to that service; (r) you should not use the Software for personal, domestic or household use or consumption; (s) the availability of the Software may be delayed, interrupted or impeded for reasons which may include maintenance, telecommunications-related issues or viruses; and (t) any “free” or price discounted offering will be subject to these licence terms, and any additional restrictions referred to from time to time on Assort’s website, which restrictions may be greater than those for goods or services for which a fee or non-discounted charge applies.

4. LIMITED ASSORT WARRANTY – You agree that all of Assort's obligations to you are fully discharged if Assort makes available one copy of the Software which performs substantially in accordance with the accompanying Software-related material made available by Assort. You agree that all causes of action against Assort in any way relating to the Software (whether to its supply, or to any services relating to the Software or otherwise, and whether for negligence, breach of duty or otherwise) are excluded other than for a contract action for breach of these terms. You agree that this applies regardless of any wilfulness of any Assort acts or omissions. Assort warrants only that the licensed copy of the Software will perform substantially in accordance with the Software-related material referred to in this clause for a period of 365 days from the earlier of your ability to access the Software and the date of any Assort registration notice to you; and any conditions or warranties on the Software are limited to such 365 day period. Any claim you may have against Assort must be made, along with proof of purchase, to Assort no later than such 365 day period. Further, and in any event, should you become aware of any possible defects in the Software or other possible claims against Assort, you must notify Assort in writing within seven (7) days of becoming aware of the same. Subject to RIGHTS UNDER STATUTE below, you agree that Assort shall have no liability to you if you do not provide such notice within such time.

5. CUSTOMER REMEDIES - Assort's entire liability and your exclusive remedy for Assort's breach of the above LIMITED ASSORT WARRANTY shall, at Assort's option, be either (a) return of any and all license fees paid by you for the period in force when your right to make a claim arose or (b) repair or replacement of any licensed copy of the Software that does not meet the above LIMITED ASSORT WARRANTY. The above LIMITED ASSORT WARRANTY shall not apply if accident, abuse, or misapplication has contributed to the relevant claim. You agree that Assort has no liability to you to the extent that your act or omission (whether negligent or otherwise) has contributed to any claim you may make. Any replacement Software will be warranted from the date of receipt for the remainder of the original 365 day warranty period or for a period of 30 days, whichever is longer.

7. EXCLUSIONS - EXCEPT ONLY AS PROVIDED IN 4 (LIMITED ASSORT WARRANTY) ABOVE AND 8 (RIGHTS UNDER STATUTE) BELOW: (A) ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH WOULD OTHERWISE BE IMPLIED IN THESE TERMS OR PROTECTED BY LAW (RELATING TO THE SOFTWARE, ANY SOFTWARE RELATED MATERIAL, ANY SOFTWARE SUPPORT OR ANY OTHER SERVICE WHICH ASSORT MAY PROVIDE) IS EXCLUDED AND (B) ALL RISKS IN RESPECT OF THE SOFTWARE, ANY RELATED MATERIAL, ANY SOFTWARE SUPPORT AND ANY OTHER SERVICE WHICH ASSORT MAY PROVIDE REMAINS WITH YOU AND YOU AGREE THAT ASSORT HAS NO DUTY TO INFORM YOU OF ANY RISKS ASSOCIATED WITH ANY SUCH MATTERS AND (C) IN NO EVENT SHALL ASSORT OR ANY RELATED COMPANY OF ASSORT OR ANYONE ASSOCIATED WITH EITHER OF THEM (INCLUDING ANY PERSON ACTING ON ITS BEHALF) BE LIABLE FOR ANY LOSS, INCLUDING CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE, ANY SOFTWARE RELATED MATERIAL, ANY SOFTWARE SUPPORT OR OTHER SERVICE WHICH ASSORT MAY PROVIDE, EVEN IF ASSORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE CAUSE OF ACTION IS NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE.

8. RIGHTS UNDER STATUTE – Nothing in these terms excludes, restricts or modifies any condition, warranty or right implied in these terms or protected by law to the extent that such exclusion, restriction or modification would render these terms or any provision of these terms void, illegal or unenforceable. In respect of any such condition, warranty or right as relates to any of the goods or services supplied under these terms which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Assort's liability is limited to the "statutory remedy" to the extent Assort is lawfully able to rely on such limitation. Under the preceding sentence, the "statutory remedy" is (a) in the case of goods, to any one or more of the following as determined by Assort: * the replacement of the goods or the supply of equivalent goods; or * the repair of the goods; or * the payment of the cost of replacing the goods or of acquiring equivalent goods; or * the payment of the cost of having the goods repaired; (b) in the case of services, to any one or more of the following as determined by Assort: * the supplying of the services again; or * the payment of the cost of having the services supplied again.

9. ENTIRE AGREEMENT - These express terms set forth the entire agreement and understanding between you and Assort relating to the Software, any related material or any Software support or other service and supersede all prior agreements, discussions and understandings, whether oral or written.

10. GOVERNING LAW - These terms are governed by, and shall be construed in accordance with the laws of the state of Victoria, Australia and you agree to submit to the exclusive jurisdiction of the courts of that state. Such choice of law and forum shall not, however, exclude, restrict or modify, or be taken as having the effect of excluding, restricting or modifying any rights you may have which may not lawfully be excluded from these terms. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods are excluded, regardless of any statutory provisions which give that Convention the force of law.

11. INDEMNITY - You agree to release, indemnify, hold harmless and defend Assort, and Assort's related companies and their respective officers, employees and agents ("indemnified") from and against any loss (including legal costs and expenses) or liability incurred or suffered by those indemnified, arising from any claim, suit, action or proceeding against any of those indemnified where such loss or liability arises in connection with any actual or alleged injury, death or damage to any person or property as a result (directly or indirectly) of any supply by Assort (including as a result of any use of the Software (whether by you, or any other user referred to in these terms)), or which is caused by, or contributed to by, your negligence, representation, misconduct, breach of contract, breach of duty or fraud.

12. PRIVACY - You agree with any privacy terms published by Assort from time to time on its website. Without limiting INTELLECTUAL PROPERTY above, you agree to be solely responsible in relation to all privacy-related circumstances, including obtaining all consents in relation to the collection, use, storage and disclosure of personal information relevant to your use of the Software and including as to any privacy-related costs and expenses.

13. TAXES - You agree to pay, and indemnify Assort against, all taxes, duties, levies and charges which are payable on, or in respect of these terms (other than Assort's income taxes).

14. TERMINATION - These terms commence upon the later of payment of the fees due for any Assort supplies (including any license fees in respect of the Software) and the date of any Assort registration notice to you, and continues until the earlier of or the occurrence of any of the following, namely (a) the expiry of your permitted access to the Software (as notified as part of Assort's registration procedures) and (b) any termination by Assort (communicated by any means determined by Assort) if a termination event referred to in §17 below occurs and (c) if you are in breach of any of these terms and (d) you become the subject of any form of insolvency administration (e) you are dissolved (f) you destroy the Software or associated documents for any reason and (g) in the case of any goods or services made available on a “free” basis, after the expiry of 30 days’ termination notice given on Assort’s website. You agree that on termination of these terms, you will destroy any remaining copies of the Software and associated documentation or otherwise deal with it in the manner directed by Assort. Termination will not affect any other rights that Assort may have against you under these terms.

15. WAIVER & SEVERANCE - Failure by Assort to enforce any of the provisions of these terms will not be construed or deemed to be a waiver of Assort's rights under these terms. If any provision in these terms is illegal, void or unenforceable, that term shall be read down or (if that is not possible) severed to the extent necessary to remove that effect.

16. INFORMATION - You agree to give Assort such information and access to facilities and records as Assort requests from time to time in order to satisfy Assort regarding compliance with these terms.

 17. CHANGES TO TERMS AND TERMINATION - Assort reserves the right to change, suspend or terminate the terms of these terms and the functionality or performance of the Software at any time. Assort will give advance notice of any such circumstance on its website (or you can obtain such details by calling Assort via the contact details given on Assort's website), allowing you to cancel your license within the period of that advance notice. You may do this by emailing or calling Assort via those contact details. Where Assort makes any of these changes, the details will be available via Assort's website. Continuing to make any use of Assort's supplies (including the Software) after the period of advance notice has expired will be deemed acceptance of the relevant change.