Last modified: 22 APRIL 2020
INVISALIGN AUSTRALIA PTY LIMITED ACN 098 357 736 (“ALIGN”, “we”, “us” “our”) IS PLEASED TO
LICENSE THE MY INVISALIGN MOBILE APPLICATION SOFTWARE TO YOU (“YOU”) ONLY UPON THE
In these Terms, the "Application" means MY INVISALIGN MOBILE APPLICATION SOFTWARE and all updates to that software that Align may make available to you from time to time.
For some features of the Application, access to and use of the Application may require a valid Invisalign Patient ID as allocated to patients prescribed for an Invisalign treatment by a dentist or an orthodontic practitioner or a user name created while registering with the Application (“Invisalign ID”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APPLICATION, AS USING THE APPLICATION INDICATES THAT YOU ACCEPT AND AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE A LICENCE TO ACCESS OR USE THE APPLICATION AND YOU SHOULD NOT DOWNLOAD, INSTALL OR USE THE APPLICATION.
You and Align acknowledge that these Terms are concluded between you and Align only, and not with Apple, Inc. or any of its subsidiaries or affiliates (“Apple”), and Align, not Apple, is solely responsible for the Application and the content thereof. Align acknowledges that Align has had the opportunity to review the App Store Terms of Service.
Align may make changes to these Terms at any time, in its sole discretion and for any reason, as reflected by the “Last modified” date above. We will post the amended Terms within the Application or in the app store from which the Application may be downloaded. It is your responsibility to refer to these Terms periodically to familiarise yourself with any changes. By continuing to use the Application after Align publishes any modifications to these Terms, you are manifesting your acknowledgement of and agreement to those changes. If you do not agree to the changes, you may terminate this agreement by written notice having immediate effect or by deleting or removing the Application from all iOS Products owned or controlled by you, and you will no longer be able to use the Application.
The Application includes information on Align products and, for patients undergoing Invisalign treatment, the Application may be used to create a schedule to track when to change an aligner to the next aligner in a patient’s Invisalign treatment plan and to track their progress (the “Licensed Purpose”). In consideration of the mutual promises and covenants herein and subject to you complying with these Terms, Align grants you a non-exclusive, royalty-free, non-transferable, non-sublicensable, limited, and revocable licence to use the Application solely for the Licensed Purpose on any Apple-branded product that runs the iOS operating system software ("iOS Products") that you own or control and as permitted by the Usage Rules set forth in the Application Store Terms of Service.
You will be assumed to have obtained permission from the owners of iOS Products that are controlled but not owned by you to download or stream a copy of the Application onto such iOS Product(s). You and they may be charged by your and their service providers for internet access on those iOS Products.
5.1 You grant Align a perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, transferable right where applicable law allows to copy, translate, modify, distribute and use all digital images, photos, Your first and last name, Invisalign ID, birth date, e-mail address, Your Doctor’s name and contact information, data and other content that you upload or transmit through the Application (“Your Content”), and prepare derivative works from Your Content for the Licensed Purpose. The license granted by you to Align under this Term will survive termination of these Terms.
5.2 You agree and authorise Align to send Your Content to Your dentists or orthodontic practitioner (“Doctor”) and You allow Your Doctor to access Your Content to monitor Your Invisalign treatment or for any other purpose authorised by You.
5.3 You agree to indemnify, defend and hold harmless Align and, where applicable, its affiliates and each of their partners, principals, officers, directors, employees, subcontractors, representatives and agents from any and all third party all claims, actions, damages, liabilities, legal proceedings, losses, costs (including legal costs) and expenses, penalties and fines that Align suffers or incurs as a result of any claim by any third party that Align's use of Your Content in accordance with these Terms infringes the intellectual property or data privacy rights of any person.
6.1 Save as otherwise provided, you acknowledge that all intellectual property rights in the Application throughout the world belong to Align and Align's licensors, that the Application is licensed (not sold) to you, and that you have no rights in, or to, the Application other than the right to use the Application in accordance with these Terms. You must not remove or alter any copyright or other proprietary rights notices on any copies of the Application. These Terms do not grant you any rights in connection with any trademarks or service marks of Align. You must not use, copy, or distribute the Application except as expressly permitted by these Terms. Any rights not expressly granted to you under these Terms are reserved by Align and its licensors. Subject always to clause 7.5 of these Terms, you and Align acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Align, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You agree that you will not re-sell the Application or use the Application for any illegal purpose or in any unlawful manner.
6.2 Align similarly does not own software in the Application developed by MIT (“MIT Software Code”) and which is Copyright © 2015-2016 Tim Oliver and subject to the following terms: THE MIT SOFTWARE CODE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT WILL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE MIT SOFTWARE CODE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
7.1 No Transfer. You must not rent, lease, lend, sublicense or in any way distribute or transfer any rights granted to you under these Terms or the Application to any person.
7.2 No Reverse-Engineering. You agree that, unless this limitation is prohibited by applicable law, you will not and will not attempt to, or allow any third party to (or make the Application available to any third party so that such party is able to), reverse engineer, decompile, defeat license encryption mechanisms, or disassemble the Application or otherwise derive source code of the Application ("Reverse Engineer the Application”). If applicable law grants you the right to Reverse Engineer the Application notwithstanding this limitation and to the extent that the following is permitted by applicable law, you must provide Align with:
and you must afford Align a reasonable period of time before initiating such activity in order for Align to evaluate the activity and take steps to obviate the need for you to Reverse Engineer the Application in accordance with applicable law or challenge the Reverse Engineering activity with the appropriate legal authorities. Steps that Align might take to obviate the need for you to Reverse Engineer the Application could include, at Align's option, providing you with information essential to achieve inter-operability of the Application with another software program (“Interoperability Information”) for a reasonable fee (which in any event will not exceed the actual costs incurred by such reverse engineering activities) and on reasonable terms. You must refrain from such Reverse Engineering activity until such time as any legal challenge is resolved in your favor. If we provide you with Interoperability Information:
7.3 No modifications: You must not modify, adapt, translate, or create derivative works of the Application (except and only to the extent that the foregoing restriction is prohibited by applicable law, and then only in accordance with applicable law).
7.4 Unlawful use. You must not use the Application for any unlawful purpose or in any way that interrupts damages or impairs the Application. You must not use the Application to transmit or upload any material that is infringing, obscene, defamatory, threatening or unlawful or that may harm Align or any other person. You must not use the Application maliciously or for any malicious purpose, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Application or any operating system or platform.
7.5 You agree to indemnify and hold harmless Align and, where applicable, its affiliates and each of their partners, principals, officers, directors, employees, subcontractors, representatives and agents from any and all claims, actions, legal proceedings, losses, costs (including legal costs) and expenses, penalties and fines that Align suffers or incurs as a result of your breach(es) of these Terms.
Unless required by applicable law, Align is not required to provide any updates, maintenance or support services with respect to the Application. However, from time to time, Align may make available a new version, updates, patches, upgrades, modifications, extensions, functional improvements, error corrections, enhancements, revisions, or changes to the Application (collectively “Updates”). You acknowledge that Updates may be installed onto your iOS Product automatically in the background at any time (depending on your mobile device or the app store settings as chosen by you – please check your settings and determine if you would like automatic updates). You also acknowledge that Updates will require a data exchange via the internet and the provision of Updates may result in you or the device owner incurring additional data charges from the provider of the broadband or data access solution you use when connecting to the internet. Updates may add, remove or change features. You understand that Updates are necessary to maintain compatibility with Align services and may be required for security reasons or as a result of the rights agreements Align has with third parties. By agreeing to these Terms, you consent to receive such Updates to the extent that they are downloaded and installed automatically and agree that if any automatic update does not take place that you will check for updates from the App store and manually download it. You acknowledge that if you decline an Update, you may not be able to continue to access or use the Application. You and Align acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. Align is solely responsible for providing any maintenance and support services with respect to the Application required under applicable law.
You and Align acknowledge that Align, not Apple, is responsible for addressing any claims of yours or of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Questions, complaints or claims with respect to the Application should be directed to Align Technology, Inc., Invisalign Customer Advocacy, 2560 Orchard Parkway, San Jose, CA 95131; (888) 822- 5446; email@example.com.
You or Align may terminate these Terms effective immediately upon written notice (on or reasonable notice if applicable law requires). Upon termination, all rights granted by Align to you in these Terms will immediately cease and you must immediately discontinue all use of the Application, and delete or remove the Application from all iOS Products owned or controlled by you, and immediately destroy any and all copies of the Application within your possession or control, and certify to Align that you have done so.
11.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE THAT THE APPLICATION HAS NOT BEEN PREPARED TO MEET YOUR INDIVIDUAL REQUIREMENTS AND IS PROVIDED FREE OF CHARGE AND ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OF ANY KIND. IN ANY EVENT, ANY IMPLIED WARRANTY WHICH CANNOT BY APPLICABLE LAW BE EXCLUDED WILL COME TO AN END AT THE EXPIRY OF THE TECHNICAL VALIDITY TERM, WHICH IS ONE YEAR FROM THE DATE OF FIRST DOWNLOAD OF THE APPLICATION.
11.2 ALIGN AND ITS SUCCESSORS AND ASSIGNEES CANNOT GUARANTEE COMPATIBILITY OR FUNCTIONALITY WITH ANY SPECIFIC BROWSERS OR INTERNET SERVICE PROVIDERS. ALIGN DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION OR YOUR DOWNLOAD OR USE OF THE APPLICATION OR ANY INFORMATION, SOFTWARE OR OTHER MATERIAL DOWNLOADED FROM THE APPLICATION OR FROM ANY OTHER SOFTWARE LINKED TO THE APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR HARMFUL COMPONENTS.
11.3 UNLESS APPLICABLE LAW PROVIDES OTHERWISE, IF YOU DETECT ANY DEFECTS OR DEFICIENCIES IN THE APPLICATION AND NOTIFY ALIGN OF THESE IN WRITING, THEN SUBJECT TO CLAUSE 11.7 OF THESE TERMS, ALIGN MAY, AT ITS SOLE DISCRETION, REPLACE THE APPLICATION OR PROVIDE A PATCH OR WORKAROUND IN THE NEXT SCHEDULED RELEASE OF THE APPLICATION, BUT ALIGN WILL NOT BE UNDER ANY OBLIGATION TO REPLACE THE APPLICATION OR TO PROVIDE A PATCH OR WORKAROUND. IF ALIGN DOES SO, HOWEVER, THIS WILL CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY FOR THE RELEVANT DEFECT OR DEFICIENCY. WHERE APPLICABLE LAW PROHIBITS THE RESTRICTION OF THE REMEDIES OFFERED IN THIS CLAUSE 11.3, ALIGN EXCLUDES ALL SUCH REPRESENTATIONS AND WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
11.4 ALL WARRANTIES, TERMS, CONDITIONS, PROMISES REPRESENTATIONS AND UNDERTAKINGS THAT WOULD BE IMPLIED BY LAW, TRADE, CUSTOM, PRACTICE, COURSE OF DEALING, STATUTE OR OTHERWISE ("IMPLIED TERMS") AND WHICH ALIGN MAY BY APPLICABLE LAW EXCLUDE, ARE EXCLUDED FROM THESE TERMS.
11.5 OTHER THAN THE PROVISIONS SET OUT IN THESE TERMS AND IMPLIED TERMS THAT CANNOT BY LAW BE EXCLUDED BY ALIGN, THERE ARE NO OTHER WARRANTIES, TERMS, CONDITIONS, PROMISES, REPRESENTATIONS OR UNDERTAKINGS INCLUDED OR GIVEN BY ALIGN IN THESE TERMS OR IN RELATION TO THE APPLICATION OR ITS USE.
11.6 ANY STATEMENTS, PROMISES, REPRESENTATIONS, ASSURANCES OR WARRANTIES MADE BY ALIGN EMPLOYEES OR REPRESENTATIVES OR IN ANY DOCUMENTS PRODUCED BY ALIGN ARE NOT PART OF THESE TERMS UNLESS EXPRESSLY SET OUT IN THESE TERMS AND YOU AGREE THAT YOU HAVE NOT RELIED UPON ANY SUCH STATEMENT, PROMISES, REPRESENTATIONS, ASSURANCES OR WARRANTIES WHEN ENTERING INTO THESE TERMS AND YOU WILL NOT HAVE ANY REMEDY IN RESPECT OF ANY STATEMENT, PROMISE, REPRESENTATION OR WARRANTY (WHETHER NEGLIGENTLY OR INNOCENTLY MADE) OF ANY PERSON OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS. NOTHING IN THIS CLAUSE WILL HOWEVER OPERATE TO LIMIT OR EXCLUDE ANY LIABILITY FOR FRAUD.
11.7 SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, AND IN SUCH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
12.1 NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT IN ANY WAY ALIGN'S, ITS SUPPLIERS' OR ITS LICENSORS' LIABILITY FOR: DEATH OR PERSONAL INJURY CAUSED BY ANY OF THEIR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, ANY BREACH OF OBLIGATIONS IMPLIED BY APPLICABLE LAW AND IN RESPECT OF WHICH OBLIGATIONS THE LAW PROHIBITS ALIGN OR ITS SUPPLIERS OR LICENSORS FROM SO LIMITING OR EXCLUDING ITS LIABILITY FOR THOSE LOSSES OR ANY OTHER MATTER FOR WHICH IT WOULD BE ILLEGAL OR UNLAWFUL FOR ALIGN OR ITS SUPPLIERS OR LICENSORS TO SO LIMIT OR EXCLUDE OR ATTEMPT TO SO LIMIT OR EXCLUDE THEIR LIABILITY.
12.2 SUBJECT TO CLAUSE 12.1 OF THESE TERMS AND TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL ALIGN OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU IN CONNECTION WITH THESE TERMS AND/OR THE APPLICATION FOR THE FOLLOWING LOSSES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE: INDIRECT LOSSES, CONSEQUENTIAL LOSSES, SPECIAL LOSS OR DAMAGE, LOSS OF INCOME OR REVENUE, LOSS OF PROFIT, THIRD PARTY CLAIMS, LOSS OF BUSINESS, LOSS OF DATA(INCLUDING PATIENT DATA – ALIGN EXPECTS THAT YOU WILL HAVE BACK-UP COPIES OR ORIGINALS OF ANY PATIENT DATA PROVIDED OR RECEIVED THROUGH THE APPLICATION), LOSS OF ANTICIPATED SAVINGS, OR LOSS OF ANY OPPORTUNITY, AND IN EACH CASE THE LOSSES HAVING THE CLOSEST EQUIVALENT MEANING IN LOCAL APPLICABLE LAW OF THESE ENGLISH LAW TERMS.
12.3 SUBJECT TO CLAUSE 12.1 OF THESE TERMS, THE TOTAL AND AGGREGATE LIABILITY OF ALIGN AND ITS SUPPLIERS AND LICENSORS TO YOU IN CONNECTION WITH THESE TERMS AND/OR THE APPLICATION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE WILL NOT EXCEED FIFTY AUSTRALIAN DOLLARS.
12.4 SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties. You must not, directly or indirectly, export or re-export, or authorise the export or re-export of either the Application or any copy or direct product thereof, in violation of any applicable United States export laws, restrictions or regulations, including without limitation those of the U.S. Department of Commerce and the U.S. Department of Treasury. Without limiting the foregoing, you must not export the Application to Cuba, Iran, Iraq, Libya, North Korea, Rwanda or to any Group D:1 or E:2 country (or any national of such country) specified in the then-current Supplement No. 1 to Part 740 or in the Commerce Control List in the thencurrent Supplement No. 1 to Part 738, or in violation of the embargo provisions in Part 746 of the U.S. Export Administration Regulations (or any successor regulations or supplement).
You agree that Align may collect anonymous statistics, such as the sequence of features used, to analyse use patterns and/or user trends to support its efforts to improve the Application. By using the Application, you agree to such data collection and further agree to allow log files of the statistics, of a relatively small and reasonable size, to be stored on your computer as a sequence of numbers, for a reasonable length of time.
The Application collects certain personal information about you. Our collection, use and sharing of that information is set out in our Privacy Statement, which is incorporated into these Terms and available at https://www.invisalign.com.au/privacy-policy.
Your Invisalign Provider may choose to enroll you in the “Virtual Care” functions of the MyInvisalign App. After you approve this enrolment, the MyInvisalign app may send additional treatment information and personal information to your Invisalign Providerto allow them to better serve you as part of your Invisalign treatment experience. This additional treatment information and personal information may include: your first and last name, your email address, telephone number, date of birth, Invisalign Patient ID Number (PID), your current aligner stage, photographs and/or videos that you have taken, appointment and/or scheduling information, aligner-wear data, and the progress of your treatment.
To unenroll in the Virtual Care functions of the App, please contact your Invisalign Provider or send an email to firstname.lastname@example.org.
You must comply with applicable third party terms of agreement when using Application. You and Align acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary. From time to time, Align may provide links to Internet sites maintained and owned by Third Parties. Align does not operate nor control, in any respect, information, products or services on these third party sites. Certain links provided through this Application may lead to information or resources maintained by third parties over whom Align has no control. Consequently, Align makes no express or implied warranties as to the accuracy or any other aspect of such information or resources. Align retains the right to modify this disclaimer, as well as the operational practices and functionality of the Application at any time and at its sole discretion. The Parties expressly agree that other than Apple and the parties owning copyright in the MIT Software Code and copyright in the OpenCV2 Software Code, no other third party will have the right to enforce any of the provisions of this Agreement against either party.
If any provision of these Terms is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, the remaining conditions will remain in full force and effect.
There Terms are governed by the law of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
Align, Invisalign and the Invisalign logo, among others, are trademarks and/or service marks of Align Technology, Inc. or one of its subsidiaries or affiliated companies and may be registered in the U.S. and/or other countries.
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