(Updated 9th October 2021)
Supply and access of oVRcome’s Products
1. These terms (Terms) set out the commercial terms and conditions on which oVRcome Limited (oVRcome, our, us, we) provide access to our self-care programme and online and mobile virtual reality and program content in the health & wellness space (the Products) to you (the psychologist, you, your), for use by you and your registered patients to assist with overcoming phobias and anxieties.
2. If you do not agree to be bound by these Terms, then you must not access or use, or permit or request your patients to access and use the Products.
3. For so long as you continue to meet your obligations under these Terms, we will on receipt (and confirmation) of a valid request from you for the Products, sell and supply to you (and/or the patient directly as applicable) the Products in accordance with our standard terms and conditions.
4. We will use reasonable commercial endeavours to deliver access to the Products within a reasonable time, but we will not be liable in any way for any form of loss or damage incurred by you, your patient or any third party in the event that delivery is frustrated or delayed for any reason.
6. You will:
6.1. only request and supply access to the Products to your registered patients who you have undertaken a consultation with and determined that they are a suitable candidate for, and have the desired skill set to appropriately access and use, the Products;
6.2. not prescribe and/or request access to anyone under the age of 18 without first obtaining the permission of their parent or guardian;
6.3. not rely on our Products for diagnosing a patient;
6.4. (for the purposes of compliance with the Privacy Act) obtain consent from each of your patients to pass on to us their personal information (including where uploaded to the Product) for the purposes of that patient accessing and using the Product and for us to refine and improve our products and services;
6.5. provide us with all necessary co-operation in relation to these Terms, and all necessary access to such information as may be required by us to provide the Products to you and your patients;
6.6. wherever reasonably practicable, advise us of any suggestions or proposals for enhancing the Products to meet the particular needs of your patients;
6.7. keep us informed of any concerns and/or complaints in relation to our Products; and
6.8. comply with all applicable laws and regulations with respect to your activities under these Terms.
7. You agree that you will not, at any time:
7.1. do anything to damage our reputation; or
7.2. pledge our credit, make any warranties about the Products other than the warranties expressly set out in these Terms, in any way bind or attempt to bind us by contract or otherwise or represent that you are connected with us or our agent.
Intellectual Property Rights
8. Nothing in these Terms confers on a party any right or interest in, or licence to use, or permit to be used, any of the other party’s intellectual property except as specifically provided for in these Terms.
9. You acknowledge that all intellectual property rights in the Products are proprietary to oVRcome (or its licensors), and will remain owned exclusively by oVRcome, and any new intellectual property which is created in connection with the Products, will be owned solely by oVRcome.
10. You agree that you will not (and will not permit others to) copy, reproduce, translate, reverse-engineer, disassemble, adapt, vary or modify the Products, in whole or in part, nor communicate the same to any person, and will notify us immediately upon becoming aware of or obtaining knowledge of the existence of any circumstances which may suggest that any person may have unauthorised knowledge, possession or use of the Products or our intellectual property rights.
Disclaimers, warranties and liability
11. You acknowledge and agree that:
11.1. you are a registered psychologist and are suitably skilled, experienced and qualified;
11.2. we are not a healthcare or medical device provider and that you will not consider our Products to be medical advice;
11.3. our Products are intended for informational and skill development purposes only and are not intended to replace personal consultations with you;
11.4. while there is third party evidence from research demonstrating that virtual reality exposure therapy can assist in the prevention and recovery process for a wide array of phobias and anxieties, oVRcome makes no claims, representations or guarantees that the Products provide a physical or therapeutic benefit;
11.5. we have the right (if we deem it necessary) to contact the patient directly without needing to obtain your further consent, to resolve any outstanding issues in regards to access and/or use of the Products; and
11.6. we may update, modify or develop the Products from time to time in our sole discretion, and that in some instances, delays, errors or omissions may occur (Issues). If you become aware of any Issues, you agree to report it to us at email@example.com. We will correct any such Issues at the earliest possible opportunity, and you acknowledge that any such correction may involve us suspending access to the Products while any such Issues are corrected, and that we will not be liable to you (or your patients) if the Products are unavailable while this occurs;
12. We do not warrant:
12.1. or represent that the content, software, text, graphics, links or communications provided on or through the use of the Products will be accurate, reliable, complete, useful, adequate, sustainable, current or timely;
12.2. that your or your patients use of the Products will be uninterrupted, error free, or free from viruses; and
12.3. that the Products will meet your or your patient’s requirements,
and except as expressly set out in these Terms, the Products are provided on an “as is” basis and to the extent permitted by law, all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability, non-infringement of third parties’ rights, and fitness for a particular purpose) in respect of the Products are expressly excluded.
13. You agree to indemnify us against all claims made by third parties (including your patients) against us regarding the use of the Products by you and/or your patients.
14. Notwithstanding anything else in these Terms, and to the maximum extent permitted by law we will not be liable (whether in contract, tort, negligence or otherwise) for any direct, consequential, incidental, punitive, exemplary, indirect or special loss or damage of any kind (including without limitation, any personal injury, wrongful death, lost profits, damages resulting from business interruption, lost data or inability to use the Products or content) arising out of or in connection with these Terms or use of the Products by you and/or your patients.
15. To the extent that we may have any liability to you or your patients, our liability arising out of all claims is limited to either re-supplying the affected service or content, or refunding the relevant subscription fee that has been paid for the affected service, provided that any claims are brought within thirty (30) days of the date such action occurred.
Suspension and Termination
16. We may, at our discretion, suspend or cancel your access to, or use of, our Products if you fail to comply with these Terms, or if we cease to make the Products available. If we cancel your access to or use of the Products, then these Terms will terminate.
17. On termination for any reason:
17.1. you will cease to have any further rights under these Terms and will stop using our Products; and
17.2. the obligations in respect of intellectual property, confidentiality, indemnities and liability will survive termination
18. You agree that, as between you and oVRcome, all data and information we collect or otherwise receive in connection with the Products (including that which is uploaded to the Products or shared by you) shall be owned by oVRcome.
19. You agree that oVRcome may use in our promotional material from time to time your name, your business name and your logo to identify you as a user of our Products. You grant to us a non-exclusive, perpetual, royalty-free, irrevocable licence to use your name(s) and logo(s) for this purpose.
20. Any notice or communication given under these Terms, must be in writing and delivered by personal delivery, tracked courier or email to the address of the relevant party and marked for the attention of the relevant party’s contact person. A notice or communication will be deemed to be received in the case of personal delivery and tracked courier, when delivered, and in the case of email on the business day which it was sent if sent between the hours of 9am and 5pm (in the place of receipt) or, if sent after 5pm on the next business day (in the place of receipt) after the date it was sent.
21. The parties agree that these Terms will remain absolutely confidential between the parties and their legal advisers, and that they will treat as confidential all information obtained from the other pursuant to these Terms which is marked or identified as confidential or which by its nature is clearly confidential, and not divulge any such information to any person without the other party’s prior written consent.
22. If any paragraph of these Terms (or part thereof) is unenforceable, invalid, or illegal, the remaining terms will continue in full force and effect (subject to any amendments necessary to address the part that is no longer enforceable).
23. We reserve the right to change these Terms at any time and will provide you with reasonable notice if we do. Your continued access and use of our Products following notification of any changes will constitute acceptance of those changes. If you do not agree with any aspect of the updated Terms, you must immediately cease all use of our Products.
24. Neither party can assign or transfer any of their rights or obligations under these Terms without the prior written consent of the other party.
25. No waiver of any breach of, or failure to enforce these Terms (or any part thereof) will limit either party’s right to enforce strict compliance with other terms at any time.
26. The laws of New Zealand will govern the validity of these Terms and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.