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SMILEFAST ACCREDITATION TERMS & CONDITIONS

BACKGROUND

We have developed the orthodontic programs and procedures specified in Item 2 of the Schedule (Program) and have agreed to provide you with certain training in the use of the Program. Upon the completion of the training specified in Item 3 of the Schedule you will be granted accreditation to use and market the Program subject to the terms and conditions set out in this Agreement.

1. DEFINITIONS

In this Agreement the following terms have the following meanings unless the context provides otherwise:
“Agreement” means these terms and conditions which apply to the use of the Program and Smilefast Portal;
“Case” means an indirect bonding case referred to our accredited laboratory and “Cases” has a corresponding meaning;
“Course Materials” means the educational materials provided at or prior to a Training Course;
“Intellectual Property” means all present and future rights to intellectual property including any inventions and improvements, trade marks (whether registered or common law trade marks), designs, copyright, any corresponding property rights under the laws of any jurisdiction and any right in respect of an invention, discovery, trade secret, secret process, know-how, information process, data or formula;
“Materials” means the Course Materials and the Smilefast Materials;
“Program” means the Smilefast indirect bonding technique as taught in the Training Course, further details of which are outlined in Item 1 and Item 2 of the Schedule;
“Schedule” means the schedule that we provided to you setting out agreed particulars of the Agreement in the form annexed;
“Service Fees” means the fees charged in accordance with clause 6 and set out in Item 5 of the Schedule;
“Seminar Fees” means the fees set out in Item 3 of the Schedule;
“Smilefast Intellectual Property” means all Intellectual Property in the Program, the Course Materials, the Smilefast Materials, the Smilefast Trademarks and all other information provided to you pursuant to this Agreement;
“Smilefast Materials” means all marketing materials and other collateral provided by us to assist you in promoting the Program;
“Smilefast Portal” means the web based portal used by us to provide the Program;
“Smilefast Trademarks” means the trade marks set out in Item 5 of the Schedule;
“Term” means the term of this Agreement set out in clause 6; and
“Training Course” means the course detailed in Item 3 of the Schedule.

2. TRAINING PROGRAM

You agree to:
  1. attend and fully participate in the Training Course (as set out in Item 2 of the Schedule) to be provided by us, including reading all the Course Materials;
  2. pay to us, in consideration for the provision of the Training Course and the Course Materials, the Seminar Fees;
  3. otherwise comply with the terms and conditions of this Agreement and any notices and other provisions set out in the Materials.

3. CASE REFERRALS

Following completion of the Training Course, in order to maintain accreditation to use the Program you must:

  1. refer a minimum of five (5) Cases to our accredited laboratory for indirect bonding in the first 12 months of the Term; and
  2. refer a minimum of ten (10) Cases to our accredited laboratory for indirect bonding in each subsequent year of the Term.

4. ACCREDITATION AND INTELLECTUAL PROPERTY

  1. Subject to you fulfilling your obligations under clauses 3(a) and 3(b) above, we grant you the non-exclusive right to, during the Term:
    1. promote yourself as a “Smilefast Accredited Doctor”;
    2. use the Smilefast Trademarks; and
    3. use the Smilefast Materials;
    4. strictly in the manner set out in this Agreement.
  2. You acknowledge and agree that:
    1. we are the sole owners of the Smilefast Intellectual Property and that nothing in this Agreement constitutes a transfer of any rights in the Smilefast Intellectual Property to you;
    2. you must not seek to register or use any company or business name, domain name or trademark which includes the Smilefast, Magic Braces and/or Magic Aligner name or trade mark or closely resembles the same;
    3. you must use the Smilefast Intellectual Property solely in the manner set out in the Smilefast Materials and you will not alter, adapt or combine the Smilefast Materials with any other materials or information without our written approval;
    4. you will only produce marketing and promotional materials using the Smilefast Trademarks and/or Smilefast Materials which comply with the template documents provided by us;
    5. you must not, directly or indirectly, develop, produce, or promote any program or training course which is based on or adapted from the Program or the Smilefast Intellectual Property either during the Term or after the expiration or termination of this Agreement, either personally or in the capacity of director, shareholder, trustee, employee, partner, consultant or joint venturer of any entity;
    6. you will not use the Smilefast Trademarks or Smilefast Materials, or advertise your services (whether or not such advertising refers to the Program) in a manner which is misleading or deceptive, or otherwise in breach of the Australian Competition and Consumer Act 2010 (Cth) or any other applicable laws or regulations, or professional codes or guidelines, in the territories in which you operate;
    7. you will ensure that all versions of the Smilefast Materials distributed by you are produced to a high standard using quality print materials;
    8. you will ensure that all versions of the Smilefast Materials distributed by you include the copyright and trademark ownership notices included in the original Smilefast Materials provided by us; and
    9. you will immediately advise us in the event you become aware of any breach or threatened breach of our Intellectual Property rights and provide us with any necessary assistance to protect such rights.
  3. You indemnify us and shall keep us indemnified against any loss, damage, costs or expenses (including legal fees on a solicitor/client basis) arising from any breach by you of the obligations set out in this Agreement.

5. TECHNIQUE

You agree that you must only practice the techniques taught during the Training Course in the manner set out in the Materials and Training Course, and not vary from or alter such techniques in any way.

6. SERVICE FEES

In consideration for the ongoing rights granted under this Agreement you agree to pay to us the Service Fees. You acknowledge that we may change such fees from time to time, on thirty (30) days written notice to you.

7. TERM

The initial term of this Agreement will be twelve (12) months from the completion of the Training Course, and will be automatically extended for further periods of one (1) year each, subject to you:

  1. after the initial 12 month term completing the required minimum number of Cases per annum in accordance with clause 3;
  2. attending refresher training seminars as reasonably advised by us from time to time; and
  3. otherwise complying with your obligations under this Agreement.

8. LICENSES AND INSURANCE

You warrant to us that you will, throughout the Term, maintain all necessary licenses to practice as a dentist in the State(s) in which you practice and obtain and keep current all usual professional indemnity insurances. You will, upon request by us, provide us with copies of such licenses and policies of insurance. You must notify us immediately in writing in the event that you cease to hold the relevant licenses and policies of insurance.

9. TERMINATION AND WITHDRAWAL OF ACCREDITATION

  1. Either party may terminate this Agreement at the end of each 12 month period during the Term, by providing notice in writing to the other party of not less than four (4) weeks prior to the end of the Term.
  2. In the event that you breach this Agreement, including but not limited to a breach of clause 4 (Accreditation and Intellectual Property), failing to pay Seminar Fees or Service Fees, or by using the Smilefast Materials or Smilefast Trademarks other than in accordance with the terms of this Agreement, and fail to cure such breach within fourteen (14) days of notice in writing from us of such breach, we may terminate this Agreement immediately upon notice in writing to you.
  3. Upon the expiration or earlier termination of this Agreement for any reason, you must immediately:
    1. remove the Smilefast Trademarks from display in your business and in all your materials, letterhead, websites and email signatures;
    2. cease to hold yourself as being accredited to provide the Program or user of the Smilefast Materials;
    3. pay all Service Fees then due to us; and
    4. return to us, at your own cost, all hard copies of the Smilefast Materials you then hold, and delete from your systems all electronic copies.

10. TRAINING COURSE CANCELLATION

  1. If a Training Course is cancelled or rescheduled and you are unable to attend, we will refund you 100% of the full payment.
  2. If you cancel by providing written notice 30 or more days prior to commencement of the Training Course, we will refund to you the cost of the Training Course in full.
  3. If you cancel by providing less than 30 days written notice, the cost of the Training Course will not be refundable however we will issue you a credit to attend another scheduled Training Course.

11. LIMITATION OF LIABILITY

    You acknowledge and agree:
  1. that we are not responsible for the learning outcomes of the education resources provided in the Course Materials and you acknowledge that the results of implementing the techniques set out in the Course Materials may vary from patient to patient and business to business;
  2. that the Australian Competition and Consumer Act 2010 (Cth) as amended from time to time and other similar Australian State and Territory legislation may provide you with certain rights and remedies in respect of goods and services provided to you by us which cannot be excluded, restricted or modified (“statutory rights”). We do not exclude any such statutory rights, but exclude all other conditions and warranties specified or implied by custom, law or statue;
  3. that to the fullest extent permitted by law:
    1. all information and materials contained in the Materials is provided “as is” and without warranty of any kind, express or implied;
    2. all implied warranties as to merchantability and fitness for a particular use or purpose are excluded; and
    3. we make no warranty as to the reliability, accuracy, timeliness, usefulness or completeness of any information in the Materials;
  4. that our liability for the breach of any warranty or condition which cannot by law be excluded will, at our option, be limited to the following:
    1. in the case of services supplied by us:
      1. the supply of the services again; or
      2. the payment of the cost of having the services supplied again; and
    2. In the case of goods supplied by us:
      1. the replacement of the goods or the supply of equivalent goods;
      2. the payment of the cost of replacing the goods or the supply of equivalent goods; or
      3. the payment of the cost of having the goods repaired;
  5. that under no circumstances (including but not limited to any act or omission on our part, our servants or agents) will we or our employees, directors, officers or associated companies be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever which result from any use of the Materials or any part thereof.

12. GENERAL

  1. This Agreement is personal to you, and may not be assigned, transferred or notated by you to any other party. This Agreement may be assigned by us to another party upon written notice to you provided that the terms of the Agreement remain the same or substantially the same.
  2. This Agreement is governed by the laws of the State of Victoria, Australia, and the parties submit themselves to the non-exclusive jurisdiction of the Courts of that State.
  3. In the event of the invalidity or any part or provision of this Agreement that invalidity shall not affect the enforceability of any other part or provision of this Agreement. The conditions and every part of the conditions contained in this Agreement shall be construed so as not to infringe the provisions of any legislative enactment (“Act”) whether State or Federal. If any condition on its true interpretation does infringe any Act or if any provision of this Agreement is invalid, that condition or part of the condition shall be read down to such extent as may be necessary to ensure that it does not infringe the Act so as to give it a valid operation of a partial character. Should a condition to be read down pursuant to this clause not be capable of reading down it should be deemed to be void and severable from this Agreement.
  4. This Agreement constitutes the entire agreement between the parties in regard to the Program and supersedes any prior representations, understandings or arrangements given or made by the parties whether orally or in writing.
  5. This Agreement may not be altered or modified other than by a subsequent written agreement signed by the parties.
  6. Nothing in this Agreement will be deemed to constitute a partnership or joint venture between the parties.
  7. Any waiver of any provision or condition of this Agreement must be in writing and is effective only to the extent in such writing specifically set forth. A waiver by either party of a breach of the other party of any covenant obligation or provision in this Agreement contained or implied will not operate as a waiver of another or continuing breach of the same or of any other covenant obligation or provision in this Agreement contained or implied.
  8. You acknowledge and agree that in addition to being subject to copyright, the Materials and all parts thereof constitute our trade secrets and confidential information and you agree not to disclose any such information or Materials to any third party other than as expressly provided for in the Materials or authorised in writing by us.

SCHEDULE

Item Description
Item 1: Program Smilefast Pro course, using the Smilefast digital indirect bonding technique and Smilefast web based portal
Item 2: Training Course Two day didactic course including 3.5 hours hands on course, known as the “Smilefast Pro Course”
Item 3: Seminar Fees The normal fee for the Smilefast Pro Course is AUD$2,800 plus GST---some promotional offers apply at various times
Item 4: Smilefast Trademarks Smilefast, Magic Braces and Magic Aligner logos.
Item 5: Service Fees
  • Digital Indirect Bonding fee: $1299 per patient for 2 arches ($900 for 1 arch)
    Includes digital setup, brackets, indirect bonding trays, archwires, and miscellaneous supplies.

    Digital set up fee: $600. If indirect bonding is later purchased for the patient, this fee is fully credited against the Digital Indirect Bonding Fee (being either the 2 arch $1299 fee or $900 1 arch fee).
  • Treatment assessment for suitability – $20 per case
    Free for the first 3 cases in the 12 months following accreditation
  • Clinical guidance
    • $50 per query
    • $250 per case
    Free for the first 3 cases in the 12 months following accreditation
  • Lateral Ceph analysis - $60
  • OR, after the first year, an unlimited option of a 12 month service agreement of $1950. Includes treatment suitability treatment planning, and clinical guidance.
Disclaimer: Fees are subject to change. Please see website for current fees. We will endeavour to provide you with prior notice of any fee changes.

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