Terms of Use - XRHealth

Welcome and thank you for visiting XRHealth.

We, XRHealth AU Pty Ltd (ACN 631 035 419) and our Related Entities shall be referred to collectively as “XRHealth”, “we”, “us”, or “our”. We provide a wide range of services through or accessible by the Sites related to virtual and augmented reality telehealth consultations, treatments and hardware (“Services”). This includes the Subscription Services.

The website located at https://www.xrhealth.com.au/ (“Website”) and other related platforms, including our website for patients and health professionals, mobile applications (including applications or other software that is used in conjunction with the Hardware) (“App”), web-portal (“Portal”) and digital properties made available on or via this website (collectively, “Sites”) are owned and operated by us.

In these terms, “you”, “your”, or, for the purposes of providing the informed consent in clause 1, “I”, shall refer to you as a visitor of our Site and/or a Patient who utilises our Services, of which these terms will be deemed to bind.

Please read these terms of use (“Terms”), any additional notices, disclaimers and our Privacy Policy carefully as they govern and apply to all and any use, access and availability of our Services. Please review our Privacy Policy to learn more about how we use any information you provide about yourself.

These Terms may be amended by us at any time, and by continuing to use the Sites and/or using the Services, you accept the Terms and our Privacy Policy as they apply from time to time. If you do not agree to the Terms or our Privacy Policy, please refrain from using the Sites.

This Privacy Collection Notice describes how XRHealth AU Pty Ltd (ABN 69 631 035 419) (we, us or our) collects and handles your personal information when you receive health services from us. We collect personal information from you and from third parties (such as your healthcare providers) so that we can provide health services to you and for related purposes set out in our Privacy Policy, available on our website (or on request).

We may disclose this personal information to third parties, including our personnel, related entities, your healthcare providers, any third parties engaged by us and acting on our behalf and as otherwise set out in our Privacy Policy.

We store personal information in Australia. Where we disclose your personal information to third parties, those third parties may store, transfer or access personal information outside of Australia.

If you do not provide your personal information to us, it may affect our ability to do business with you.

Please see our Privacy Policy for more information about how we collect, store, use and disclose your personal information, including details about overseas disclosure, access, correction, how you can make a privacy-related complaint and our complaint-handling process.

If you have questions about our privacy practices, please contact us by email at: officeau@xr.health. By providing your personal information to us, you agree to the collection, use, storage and disclosure of that information as described in this privacy collection notice

DEFINITIONS

For the purposes of these Terms:

“Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Business Day” means a day which is neither (i) a Saturday or Sunday, nor (ii) a public holiday in Victoria, Australia.

“Cancellation Fee” means fees charged for late cancellation.

“Completion Date” means the earlier of the following dates:

the date that XRHealth or its clinician notifies the Patient by email that the Patient has completed their treatment (being either the conclusion of the initial treatment period or the Subscription Period);

the date that the Patient decides to cancel or suspend the account; or

the date that the Services are terminated by you or by us for whatever reason.

“Consequential Loss” means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:

any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission; and/or

without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.

However, the parties agree that your obligation to pay us the Price or Purchase Fee under these Terms will not constitute “Consequential Loss”.

“Client” means a Private Patient or NDIS Participant (as applicable).

“Content” means any and all text, publications, artwork, photographs, pictures, images, written, audio and visual materials, motion pictures, software, graphic user interface design, design elements, source and object code, domain names, interactive features related graphics, logos, button icons, scripts, circuit layouts, other copyright works, trade marks, or intellectual property contained on our Sites.

“Hardware” means the non-medical hardware devices manufactured by Beijing Pico Technology Co. Ltd as well as each or any replacement, altered or substitute part and all appliances, parts, components, instruments, appurtenances, accessories and other equipment which may from time to time be incorporated or installed in or attached to the goods and, except where the context otherwise requires includes any part of the goods.

“Hardware Fee” means the relevant fee imposed by XRHealth from time to time for the use of the Hardware payable at the frequency specified by XRHealth as advised by us to you prior to the commencement of the Services or at the rate otherwise set out in these Terms.

“Interactive Areas” means online platform for registered users wherein they can interact with each other through private chat features and/or via social networks such as Facebook.

“NDIS Participants” means a Patient under the National Disability Insurance Scheme.

“Patient” means a Private Patient or NDIS Participant (as applicable).

“Personal Information” is given its meaning in the Privacy Act 1988 (Cth).

“Price” means the cost of our Services or for accessing and/or using our Sites, including but not limited to the out-of-pocket cost of each consultation you have with one of our clinicians during your treatment, and includes the Subscription Fees (if any), as advised by us to you prior to the commencement of the Services.

“Private Patient” means a Patient that is not a participant of the NDIS.

“Purchase Fee” means the purchase price for the Hardware, where you request to purchase the Hardware, or do not return the Hardware.

“Registration Data” means any information provided by you to us in connection with your use of the Sites and access to our Services, including but not limited to Personal Information such as your name, date of birth, contact details, password, and billing and payment information.

“Related Entity” is given its meaning in the Corporations Act 2001 (Cth).

“Reports” means any content, reports, information or results collected by XRHealth or its nominated qualified health professionals or registered practitioners through your use of the Services and provided to you.

“Subscription Fee” means the then prevailing Price for the Subscription Services as advised by us to you at the commencement of the Subscription Period.

“Subscription Period” has the meaning given to that term in clause 3.17 of these Terms.

“Subscription Services” has the meaning given to that term in clause 3.17 of these Terms.

“Weekly Subscription” means a subscription to the Subscription Services on a weekly basis.

CONSENT AND CAPACITY

You represent and warrant to us as follows:

you have the legal capacity to understand and enter these Terms and our Privacy Policy; and

you are of at least 18 years of age; or

alternatively, you have permission from your parent(s) or legal guardian(s) to use the Sites.

The Services offered by the Sites are available only to individuals who have legal capacity in accordance with clause 1.1.

Subscription: XRHealth will provide you with access to the Site and the Services in accordance with these Terms, as purchased by you.

Consent to Treatment: Our telehealth-based Services are provided by healthcare professionals, including physiotherapists and occupational therapists retained by XRHealth (the “Telehealth Professionals”). Telehealth involves the real-time evaluation, diagnosis, consultation, and treatment of a health condition using advanced telecommunication technology, which often includes the use of interactive audio, video, or other electronic media. The use of telehealth technology allows the XRHealth provider to see and communicate with you, the Patient, in real-time from a remote or distant location. The services needed to support this treatment may include physiotherapy, occupational or other therapy. As a Patient utilising the Services, you confirm that you have had the opportunity to ask questions and have had these questions answered to your satisfaction. You have received an explanation and a copy of your rights and responsibilities as a Patient of XRHealth’s and understand those rights and responsibilities. You understand the benefits and risks of receiving treatment at home and hereby authorise XRHealth and its practitioners, associates, technical assistants and/or other professionals as XRHealth may deem necessary (the “Telehealth Providers”) to provide the treatment to you as set forth by and under the direction of your physician. By agreeing to these Terms, you are giving your informed consent for the provision of telehealth services by XRHealth Telehealth Professionals.

Benefits and Risks of Telehealth Services. Telehealth provides access to care in circumstances where it may be difficult to provide otherwise. The benefits of telehealth services may include improved and easier access to health care by enabling patients to remain in their own locations and more efficient health care evaluation and management, often at a lower cost compared to other alternatives. Yet, as with any type of health care service, there are potential risks associated with the use of telehealth services and, hence, the Services provided via this Sites. XRHealth Telehealth Providers: (a) may conduct their practice in a different location than the one where you may be physically present for such medical care; (b) may not have the opportunity to perform an in-person physical examination of you at the time my telehealth services are provided; and (c) may rely on information provided by you before and during your telehealth services encounter.

You understand that the XRHealth Telehealth Providers advice, recommendations, and/or decisions may be based on factors not within their control, such as incomplete or inaccurate data provided by you or distortions of diagnostic images or specimen that may result from electronic transmission issues. You understand that you must provide information about your medical history, condition(s), and current or previous medical care that is complete and accurate to the best of your knowledge and ability. You also understand that in the event the telehealth services are interrupted due to a technology problem or an equipment failure, alternative means of communication may be implemented and/or an in-person medical evaluation with your health care provider may be necessary.

You understand that the level of care provided by XRHealth Telehealth Providers is to be the same level of care that is available to you through an in-person medical visit; provided, however, if our XRHealth Telehealth Providers determine that the provision of telehealth services will not adequately address your medical needs, the treating XRHealth Telehealth Provider(s) may require you to schedule and attend an in-person medical examination with your health care provider.

If, after a telehealth services session, you experience any urgent medical symptoms or conditions, you should alert your treating physician or, in the case of an emergency, you must dial 000 or go directly to the nearest emergency department.

If required by law, XRHealth Telehealth Providers must share information regarding your telehealth services session with your primary care physician. You hereby authorise XRHealth and your XRHealth Telehealth Provider(s) to share such information, which may include but is not limited to copies of your medical records, a report containing an explanation of the telehealth services provided to you, and/or any evaluation, analysis, or diagnosis of my medical condition made by the XRHealth Telehealth Provider(s).

Primary Care Provider Relationship; No Medical Diagnosis: Our Services may include medical and/or non-medical applications. The Services you receive from healthcare professionals through the Site should not be used as a replacement for a primary care provider relationship. The Services you receive from healthcare professionals through the Site may not necessarily give rise to a provider-patient relationship or an ongoing treatment relationship. You are expected to seek follow-up or emergency care when recommended by a healthcare professionals or when otherwise needed, and you should continue to consult with your primary care provider and/or any other health care providers as needed or recommended. Additionally, the healthcare professionals who provide Services through the Site may make recommendations and/or arrangements for follow-up care, as appropriate, and you are welcome to access our Services for these follow-up visits. Our Services are intended to provide you with a wide range of immersive applications, games and content enhancing the physical and cognitive wellbeing (which includes the use of any Hardware). The design and function of the Hardware and its contents, such as information, questions, text, graphics, images, audio and video files, user help files, user interface, layout and presentation, and data relating to your use of the Services, and other material contained in the Hardware (“Content”) are not intended to function as medical diagnosis. Although certain Content has been prepared in consultation with healthcare professionals, the Content is not intended as medical diagnosis or treatment in lieu of consultation with a health care provider. Please consult your health care provider regarding any specific diagnosis, treatment or health questions. If you are experiencing an urgent medical condition, immediately call 000.

2. LICENCE TO USE OUR SITES

We grant you a non-exclusive, revocable and non-transferable licence to use the Sites in accordance with these Terms, such licence expiring immediately on termination or expiry of your subscription to our Services.

The Sites may contain links and other pointers to Internet websites or applications operated by third parties. We do not control these linked websites and are not responsible for the contents of any linked website. Your access to any such website is entirely at your own risk. You should contact the relevant third-party directly to make inquiries concerning the information prior to entering into a transaction in relation to the third-party products and services.

You may share and embed links from our Sites on third party websites however we wholly reserve the right to remove and/or to request the removal of any such links at our sole discretion.

Except as expressly permitted by these Terms, any:

modification or other use;

sale; or

redistribution in any form or medium

of the Content is prohibited without our prior written permission.

You acknowledge and agree that:

we retain complete editorial control over the Sites and may alter, amend or cease the operation of the Sites at any time in our sole discretion;

while we make every effort to operate the Sites on a continuous basis, they may be unavailable from time to time (including for maintenance purposes); and

to the extent you provide any feedback, comments or suggestions to XRHealth regarding the Services (“Feedback“), XRHealth shall have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any of XRHealth’s current or future products, technologies or services and use such Feedback for any purpose all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed non-confidential.

In exchange for the licence granted to you under this clause, you must not:

use the Sites in breach of any applicable laws or regulations;

use the Sites (or Content obtained from the Sites):

to transmit (or authorise the transmission of) “junk mail,” “chain letters,” unsolicited emails, instant messaging, “spimming,” or “spamming”;

to impersonate any person or entity;

to solicit money, passwords or personal information from any person; or

to harm, abuse, harass, stalk, threaten or otherwise offend others;

use any search robot, spider, or other device or process to retrieve, index, or in any way reproduce, modify or circumvent the navigational structure, security or presentation of the Sites and its Content;

transmit or otherwise make available in connection with the Sites any virus, worm, trojan horse, time bomb, spyware, or any other similar computer code, that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment;

use the Sites with the assistance of any automated scripting tool or software;

frame or mirror any part of the Sites and its Content without our prior written authorisation;

copy, reverse engineer, decipher, or otherwise disassemble any portion of the Sites or cause any other person to do so;

interfere with or disrupt the operation of the Services or the servers or networks that host them;

bypass any measures we may use to prevent or restrict access to the Services; and/or

delete any attributions or legal or proprietary notices on the Sites.

3. OUR SERVICES AND SUBSCRIPTIONS

Our Services are intended to provide you with a wide range of immersive applications, games and content enhancing the physical and cognitive wellbeing (which includes the use of the Hardware). While using the applications, performance data is collected, analysed and quantified, using advanced algorithms and providing the user with performance tracking insights. The Reports of the Services will be made available to you through our Portal. XRHealth will not share or distribute such Reports to others. Please refer to our Privacy Policy for more information about how we collect and use your information.

Please note that XRHealth clinicians will be providing you with your treatment plan and will remotely monitor your use and performance of the platform.

The Sites may also provide you with comprehensive information regarding, amongst other matters, XRHealth’s services, concept, sales, news and so forth, including any other Content related thereto.

The App may include the sending of push-notifications, messages, emails, alerts via various means of communication. You can deactivate the push-notifications at any time by changing the notification settings on your device.

Once you have been notified by XRHealth or its clinician by email that you have completed your treatment, but subject to clause 3.15, you will no longer have access to our Services, Sites or the continued use of the Hardware.

Termination of Treatment Program and Cancellation Fees

You can notify us at officeau@xr.health to cancel your treatment program by giving seven (7) days written notice in accordance with the requirements under the relevant agreement with XRHealth.

If you cancel services prior to completing your first four (4) sessions, you will still be charged for all 4 sessions, regardless of attendance.

Upon termination of your treatment program, you will no longer have access to the Services or the continued use of the Hardware and must return the Hardware in accordance with clause 10.

XRHealth reserves the right to suspend or cancel your treatment program at any time in its absolute discretion.

Subscription Services

Once you have completed your initial treatment program, we will offer you an opportunity to continue your treatment on a Subscription (Subscription Period) to enable you to continue to access our Services, Hardware (including applications or other software that is used in conjunction with the Hardware) and Sites after your initial treatment period has completed (Subscription Services).

If you wish to access the Subscription Services, you will be required to pay a monthly Subscription Fee in advance.

By purchasing a Subscription, you agree and authorise us to deduct/invoice the Subscription Fee from your account in accordance with our Direct Debit Terms and Conditions. The authority will remain valid until you notify us to cancel your subscription in accordance with clause 3.20.

Your Subscription will automatically renew at the time of purchase until you notify us to stop. To find out how to cancel your Subscription, see clause 3.20.

Termination of Subscription Services

You can notify us at officeau@xr.health to cancel your:

Subscription by giving us 7 days written notice; or

XRHealth reserves the right to suspend or cancel your Subscription at any time in its absolute discretion. In the event that XRHealth cancels your Subscription, you will receive a pro-rata refund for the balance of the term outstanding on your Subscription from the date of suspension or cancellation subject to you returning the Hardware in its original condition save for fair wear and tear.

Upon termination of your Subscription, you will no longer have access to the Subscription Services or the continued use of the Hardware and must return the Hardware in accordance with clause 10.

4. ACCOUNT REGISTRATION

In order to use certain features of the Services from our Sites and the Interactive Areas, you will be required to provide us with Registration Data (“Account”). By registering for an Account or by continuing to browse our Site as a guest, you are taken to have accepted these Terms and our Privacy Policy.

As part of the registration process and as a condition of your access to the Sites, you may create one Account only and provide us with your current, complete and accurate Registration Data (some of which is not mandatory).

If your Registration Data changes, you must promptly update your Account to reflect those changes. You may do so by using the Profile Setting button.

As a user of the Sites, you agree that:

you will use the Sites only for purposes permitted by the Terms;

you are responsible for maintaining the confidentiality of your Registration Data at all times;

you are solely responsible for the use and maintenance of your Account;

we may deny anyone access to an Account or the Sites at any time and for any reason without notice; and

we are not obliged to confirm the identity of the Site users.

Each registration is for the personal use of the registered user only. You may not share your log-in details or password (if required) with any other person. XRHealth does not allow multiple users (networked or otherwise) to access the Sites through a single name and password and may cancel or suspend your access to the Sites if you do this, or breach any of these Terms, without further obligation to you.

You acknowledge that in the event that we believe that you have breached these Terms, we may, at our sole discretion terminate or suspend your Account with us, and you will not be entitled to a refund of any Services provided for the period up to and including the date of suspension or termination of your Account resulting from a breach of these Terms.

We will use your Registration Data and any other personal information provided by you to us in accordance with our Privacy Policy.

You may receive emails from us confirming the details of your registration, and providing you with necessary information relating to your access and use of the Sites.

If you wish to cancel and remove your Account, please send us an e-mail of your request to: officeau@xr.health. Your Account will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your Account (see further details in the Privacy Policy). Note that you will be able to edit or remove, at any time, any information contained in your personal Account.

Cancelling your account may cause the loss of certain information you provided us and XRHealth does not accept any liability for such loss. Please note that we are legally obligated to keep health information even if your account has been terminated, and such information will be deleted only when and if allowed according to applicable laws. Please refer to the Privacy Policy for further information.

5. INTELLECTUAL PROPERTY

You acknowledge and agree that, as between you and us, we own all intellectual property rights in the Sites. Nothing in these Terms constitutes a transfer of any intellectual property rights from us to you.

The Content of the Sites and any material e-mailed to you or otherwise supplied to you in conjunction with the Sites is copyright of XRHealth and our licensors, and is subject to Australian and international copyright and intellectual property laws. You may not use or reproduce or allow anyone to use or reproduce any Content (such as the “XRHealth” name and logo or other trade names appearing on the Sites) for any reason without prior written permission from us. The software that operates the Sites is proprietary software and you may not use it except as expressly allowed under these Terms.

You may retrieve and display the Services or Content from the Sites on a computer screen or mobile device, print individual pages on paper (but not photocopy them) and store such pages in electronic form on your computer or mobile device for your personal, non-commercial use.

Except as expressly permitted by this clause, you may not reproduce, modify or in any way commercially exploit our Services or Content on the Sites. In particular, but without limiting the general application of the restrictions in the previous sentence, you may not do any of the following without prior written permission from XRHealth:

reproduce or store in or transmit to any other website, newsgroup, mailing list, electronic bulletin board, server or other storage device connected to a network or regularly or systematically store in electronic or print form, all or any part of the Services or Content;

publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit all or any part of the Services or Content (including as part of any library, archive or similar service); or

remove the copyright or trade mark notice from any copies of the Content made under these Terms.

We retain all rights, title and interest in and to our Services and the Sites. Nothing you do on or in relation to our Services or the Sites will transfer any:

business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;

right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

thing, invention, design, system, work or process that is the subject of a patent, registered design or copyright or any other intellectual property right (or an adaptation, improvement, modification of such a thing, invention, design, system, work or process).

6. USER CONTENT

You are solely responsible for any material, opinion, content or data that you:

post, publish or otherwise transmit through the Sites or Interactive Areas, if available; or

obtain through accessing or using the Sites or Interactive Areas.

(collectively, “User Content”).

Your User Content must not:

infringe any law, third party intellectual property rights or any other contractual or proprietary rights of a third party;

contain, promote, or provide information about unlawful activities or conduct;

contain abusive, homophobic, defamatory, libellous, hateful, discriminatory, obscene, inflammatory or racist language;

harass, bully or intimidate any person;

contain viruses, or other computer codes, files or programs designed to interrupt, limit or destroy the functionality of other computer software or hardware; or

contain financial, legal, medical or other professional advice.

By posting or adding any User Content onto the Sites, you grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence and sub-licence to use that User Content in any way (including, without limitation, by reproducing, changing, translating, and communicating the User Content to the public) and permit us to authorise any other person to do the same thing. This licence will survive any termination of these Terms.

You represent and warrant to us that you have all necessary rights in respect of any User Content which you post or otherwise contribute to our Sites to grant the licences and consents set out in this clause. You waive any moral rights that you may have in regard to your User Content, and if you add any User Content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.

You acknowledge that the views expressed in User Content provided by you and other users do not necessarily reflect the views of XRHealth, and we do not support or endorse any user content. You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on our Sites. For the avoidance of doubt, we will not be taken to have uploaded, posted, transmitted or otherwise made User Content available on the Sites simply by facilitating others to post, transmit or otherwise make the User Content available. Furthermore, we do not endorse any opinion, advice or statement made by any person other than us.

Notwithstanding clause 6.5, we reserve the right to:

review, modify, reformat, reject or remove any User Content which you upload, post, transmit or otherwise make available (or attempt to upload, post, transmit or otherwise make available) that, in our opinion, violates these Terms or otherwise has the potential to harm, endanger or violate the rights of any person; and

monitor use of the Sites, and store or disclose any information that we collect, including in order to investigate compliance with these Terms or for the purposes of any police investigation or governmental request.

If you believe that any User Content infringes your legal rights, you should notify XRHealth immediately by contacting our customer service centre.

7. SERVICE AVAILABILITY

We use our best endeavours to try to ensure the Services provided on our Sites and by our clinicians are available. However, circumstances outside of our control (for example errors in our system or disruption to the communication network) may result in the Services being unavailable.

If a Service is unavailable we will notify you as soon as reasonably practicable. If your matched clinician is unable to provide you Services, we will make a reasonable effort to provide you the Services with a replacing clinician.

We shall not be liable for any compensation, loss or damage caused by any delay to the Services being provided to you.

8. PRICE AND PAYMENT

The relevant Prices for all Services and access to our Sites are in Australian dollars and GST-inclusive and you are required to pay such Prices as and when they fall due.

We accept payment via bank deposit, Visa Card or Master Card.

Payments made via the Sites may be processed via certain online payment service providers (“Online Payment Processors”). For more information regarding this matter, please refer to our Privacy Policy. We may add or change the Online Payment Processors in our sole discretion. The Online Payment Processors enable you to send payments securely online using a credit card, debit card or bank account. We do not control and are not affiliated with such Online Payment Processors. These Online Payment Processors are independent contractors and have no employment or agency relationship with us. XRHealth is not responsible in any way for the actions or performance (or lack thereof) of the Online Payment Processors. The use of the Online Payment Processors is at your own risk. It is your responsibility to abide by all the terms specified by the Online Payment Processors in their terms of use and privacy policies. You acknowledge that you are fully assuming the risks of conducting any transactions via the Online Payment Processors.

Your credit or debit card information is stored by our payment processor so that we can process your payments (if applicable).

Your details will be transmitted to our Online Payment Processor via Payment Card Industry Data Security Standards (PCI-DSS) compliant protocols. Our Online Payment Processor is responsible for protecting the security of credit or debit card details stored on their servers, and will take reasonable steps to protect your personal information from unauthorised access and accidental loss or modification.

Subject to clause 3.13, you understand and agree that for any Services provided on an appointment basis, you may be responsible for a missed appointment fee according to our then prevailing rates as published on our website or otherwise at the time if you do not cancel a scheduled appointment at least twenty-four (24) hours in advance of the scheduled appointment time.

We reserve the right to change the prices and fees at any time. In the event the Price or your Subscription Fee changes, you will be given 14 days notification prior to when you would need to make a decision to cancel and not be affected. The new fees will automatically take place from your next billing cycle.

9. YOUR USE OF THE HARDWARE

By using the Hardware, you agree and accept the Direct Debit Terms and Conditions and the terms and conditions of the use of the Hardware as set out in this clause 9.

If you purchase the Hardware in accordance with clause 11, XRHealth retains full title to the Hardware despite the delivery of the Hardware to you and the possession and use of the Hardware by you, subject only to the rights of you as a mere bailee of the Hardware with a right only to use them in accordance with, and under, these terms.

Where you are renting the Hardware you must at all times keep and maintain the Hardware in proper working order and condition and in good and substantial repair. XRHealth will make due allowance for normal wear and tear but the Hardware must at all times be capable of being operated fully and efficiently for the purpose, and to the capacity, for which the Hardware was intended at the date of their acquisition by XRHealth for the purposes of the Services.

You will be fully responsible to XRHealth for any loss of or damage to the Hardware (however occasioned). Please refer to our Direct Debit Terms and Conditions for more information about how XRHealth deals with lost, stolen or damaged Hardware. You must immediately notify XRHealth in writing of any such loss or damage or malfunction of the Hardware.

By using the Hardware and related Services, you agree to the manufacturers Terms of Service and Privacy Policy found at https://www.pico-interactive.com/us/terms/privacy.html.

Your use of the Hardware must be in accordance with the Safety Manual found at https://www.pico-interactive.com/us/terms/user_safety.html. Please read and follow the warnings and information contained in the Safety Manual carefully before using the Hardware and follow all guidelines on safety and operation. Failure to follow such warnings and instructions could result in serious injury, property damage or death.

You agree to use, operate and possess the Hardware at your own risk and you must not part with possession of the Hardware without our consent, and if you do part with possession of the Hardware or deal in any way with the Hardware in breach of these Terms you acknowledge that we have not authorised such dealing or agreed that such dealing would extinguish the Security Interest created by these Terms under clause 9.8. You agree that XRHealth will have no responsibility or liability for any loss or damage to any of your property arising from or in connection with your use of the Hardware.

You acknowledge and agree that:

these Terms constitute a ‘security agreement’ as defined under the PPS Law and creates a Security Interest in the Hardware that is irrevocably granted by you to secure the punctual payment of all amounts owing by you under these Terms and the performance of all your other obligations under these Terms. You agree that the Security Interest created by these Terms attaches or otherwise takes eﬀect immediately upon you obtaining possession of the Hardware. The Security Interest created by these Terms extends not only to the Hardware but also to all and any Proceeds from any sale, disposal or any other matter arising from any dealings with the Hardware;

we are a secured party in relation to the Hardware and any proceeds in respect of any sale or disposal of the Hardware, and we are entitled to register our interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’, and you must do all things necessary to assist us in effecting the registration;

you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Hardware and the proceeds is enforceable, and to be perfect, or better secure our position under these Terms, or ensure our priority over all other security interests.

To the extent the law permits, you waive your right to receive any notice (including notice of a verification statement) that is required under PPS Law, including but not limited to notices under sections 157, 95, 118, 121, 130, 132 or 135. However, this does not prevent us from giving a notice under PPS Law.

To the extent permitted by law, unless we otherwise notify you, sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPS Law will not apply to enforcement of our security interest.

If there is any inconsistency between our rights under this clause 9 and your rights under Chapter 4 of PPS Law, this clause prevails.

You must not disclose any information of the kind referred to in section 275 of the PPS Law, to the extent permitted under that section.

Nothing in this clause 9 is intended as an agreement to subordinate a security interest arising under these Terms in favour of any person under section 61 of the PPS Law.

For the purposes of these Terms:

PPS Law means the Personal Property Securities Act 2009 (Cth) and the regulations made under such Act as amended from time to time;

Proceeds has the meaning given to that term under the PPS Law;

Security Interest means a security interest under the PPS Law and/or any other mortgage, pledge, lien, encumbrance, or charge and/or any other interest or arrangement that secures payment of money or performance of an obligation.

Terms used in this clause but not defined have the same meaning as provided under PPS Law.

10. DELIVERY, SHIPPING, RETURN AND NON-RETURN OF HARDWARE

We try to ensure that the Hardware is delivered within the timeframe of 2 to 15 Business Days after a request to rent the Hardware is placed, provided you have been approved for virtual reality use. However due to Hardware availability, processing, the delivery destination and other circumstances outside of our control, delays may occur.

If you have not received the Hardware after 2 weeks please contact us.

If the Hardware arrives damaged please contact us immediately and we will arrange for the damaged Product to be returned to us.

In the instance that you provide an incorrect delivery address we will not be responsible or loss or damage suffered by you, if the Hardware is delivered to the incorrect address that you have supplied.

Please note that all delivery/shipping fees are non-refundable unless the Hardware fails to comply with the Australian Consumer Law consumer guarantee provisions.

You must lodge the return of the Hardware at an Australian Post outlet no more than five (5) Business Days after the Completion Date. The Hardware must be placed in the original hardware box (and then placed inside a suitable outer carton/box) and properly sealed. The return label must be attached to the box and then dropped off at the nearest post office. If you have lost or cannot find the return label, please contact us.

Full payment of headset(s) will be invoiced/charged to the participants NDIS plan/clients credit card if hardware is not returned to XRHealth ten (10) business days from date of services ceasing. Failure to pay will result in engagement of our debt collection agency. All fees and charges incurred will be payable by the participant/client.

11. OPTION TO PURCAHSE HARDWARE

We may, in our absolute discretion, notify you of your option to purchase the Hardware if:

you have paid us the total or partial Price due and payable for the Services; and

you have paid us any other amounts due and payable under these Terms.

If we notify you of your option to purchase the Hardware and you notify us in writing of your acceptance of the option to purchase the Hardware:

a separate contract is created between the parties for your purchase of the Hardware from us;

you agree to pay us the Purchase Fee in accordance with the payment terms in clause 8; and

you agree to pay for the costs of transferring the title of the Hardware to you within a reasonable time from us receiving your written notice.

We will set out the details of the purchase and the Purchase Fee in respect of your Hardware in our invoice to you (including the delivery fees or other applicable charges and taxes). When you purchase the Hardware, and your payment has been validated, we will send you written confirmation of your purchase.

You agree that if you purchase the Hardware under this clause 11:

title to the Hardware will pass to you on our receipt of the Purchase Fee, and all other amounts due and payable under these Terms, in full and on our issue of any relevant title or registration documentation to you;

the transfer of title in the Hardware will be subject to your full payment of the Purchase Fee and any amounts due and payable under these Terms;

subject to Australian Consumer Law, you purchase and accept the Hardware “as is”, and we will not be liable for any damage, defect or any other liability in the Hardware after title in the Hardware transfers from us to you; and

risk in the Hardware will remain with you, being from the date the Hardware is delivered to you in accordance with clause 10.

12. CONSUMER GUARANTEES

Our Hardware come with guarantees that cannot be excluded under the Australian Consumer Law.

Any rights or remedies which you are entitled to under Australian Consumer Law arises independently to these Terms and nothing in these Terms limits any claim you may have under Australian Consumer Law. You may be entitled to remedies that cannot be excluded under Australian Consumer Law if the Hardware supplied by us to you fails to meet a consumer guarantee under Australian Consumer Law.

To the fullest extent permitted by law (including the Australian Consumer Law), XRHealth does not guarantee that it will not try to repossess or take back the Hardware rented by you on completion of your treatment, or earlier if you are in breach of the Terms. We give you undisturbed possession of the Hardware until the end of your treatment as notified by your clinician, at which point you must return the Hardware to XRHealth, unless you have purchased the Hardware in accordance with clause 11.

13. RECALLS

For the purposes of this clause, “Adverse Event” means any untoward medical occurrence in a person that occurs with use of the Hardware.

In the instance an Adverse Event occurs regarding the Hardware that come to your attention, you agree to provide XRHealth a written report within one (1) Business Day of becoming aware of such an event.

You agree that, unless otherwise required by law or applicable regulatory authority, XRHealth shall be solely responsible for determining if any Hardware recall should occur. Stockists and wholesalers agree to co-operate to the fullest extent possible to diminish any risk to the public from an Adverse Event, including taking the following actions (as directed by XRHealth):

removing Hardware that may be affected from offer for rent to the public;

recalling Hardware that may be affected where they have been rented;

complying with all laws, regulations and notice requirements in relation to product recalls;

disseminating information that has been approved by XRHealth and which in XRHealth’s opinion is necessary or desirable to limit any harm, loss or damage that maybe caused in any way in relation to the matter; and

complying with any other directions and corrective action required by XRHealth in relation to the matter.

14. LIABILITY & INDEMNITY

To the fullest extent permitted by law (including the Australian Consumer Law), we exclude all other rights, remedies, guarantees, conditions and warranties in respect of your use and access of our Sites, access to our Content (whether they are through our Sites or in hard copy form), use of our Services or Hardware, whether based in statute, common law or otherwise to the extent permitted by law. Subject to the Australian Consumer Law and to the fullest extent permitted by law:

Despite anything to the contrary but subject to Australian Consumer Law, to the maximum extent permitted by law:

neither party will be liable for Consequential Loss;

a party’s liability for any liability under these Terms will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party (or any of its personnel), including any failure by that other party to mitigate its loss; and

we exclude all liability in respect to any glitches, bugs, viruses, trojan horses, or the like, which may be transmitted to or through our Sites by any third party.

Content included in the Sites is prepared as general information only. It is not advice and should not be substituted for personal advice which takes into account your individual health, financial or other circumstances. We take no responsibility and disclaim all liability with respect to the accuracy of the Content contained in our Sites;

you warrant that any information you have provided to us (including the Registration Data) is true and correct and we disclaim all liability for any loss or damage that you may suffer or incur in the event of incorrect or incomplete Registration Data having been supplied, including (without limitation) sending the Hardware to the address as notified by you;

you acknowledge that we control all of the Content on our Sites and that such Content may be changed at our absolute discretion in accordance with clause 16; and

in addition to and not in derogation of clause 14.1(a), you acknowledge that, if you elect to use the Subscription Services without the consultation of our clinicians, XRHealth, to the maximum extent permitted by law, excludes all liability for any direct, indirect, special, and/or consequential loss or damages arising from such use of the Subscription Services.

To the extent that our liability for breach of any implied warranty or condition cannot be excluded at law, our liability will be limited in relation to the Hardware, at our option, to:

the replacement of the Hardware or the supply of an equivalent product to the Hardware;

the repair of the Hardware;

the payment of the cost of having the Hardware replaced; or

the payment of the cost of having the Hardware repaired.

In relation to any express warranty or condition set out in these Terms in connection with Services supplied or offered by us or any of our related entities, or to the extent that our liability for breach of any implied warranty or condition cannot be excluded at law, our liability shall be limited to the total amount paid by you for our Services.

15. THIRD PARTY COMPONENTS

The App may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“).

Your right to use such Third Party Components as part of, or in connection with, the App is subject to any applicable acknowledgments and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components.

You acknowledge that XRHealth makes no warranties or representations, express or implied, with respect to such Third Party Components. Under no circumstances shall the App or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source“ or “publicly available“ software.

A list of Third Party Components that their licenses require certain notification, is available in the App or its documentation and will be updated from time to time.

Since you may be downloading the App from a third-party platform, service provider or distributor (“Platform Provider“) your use of the App may also be governed by usage rules which the Platform Provider may have established and which relate to your use of the App (“Usage Rules“). It is your responsibility to determine what Usage Rules are applicable to your use of the App. You undertake to comply with all the applicable Platform Provider’s Usage Rules. In the event of a conflict between the Terms and the terms of any applicable Usage Rules, which relates solely to the Platform Provider’s representations, warranties, restrictions on use of the App, obligations, limitation of liability (to the extent applicable to the Platform Provider) and/or other provisions that impose any responsibility on the Platform Provider, the terms of the applicable Platform Provider’s Usage Rules shall prevail. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.

16. UPDATES TO THE SITES AND SERVICES

XRHealth reserves the right to modify, improve, make any other changes to, or discontinue, temporarily or permanently the Services, Sites and the Content. If we change what is available as part of the Services, Sites or Content, we will provide you with notice of the changes within a reasonable period. After that reasonable period has lapsed, we will apply the changes to the Services, Sites or Content. If the changes adversely affect your enjoyment of the Services, you may terminate these Terms in accordance with clause 18.1.

If XRHealth supplies to you any updates, upgrades and any new versions of the App or the Sites (“Updates“) according to its then current policies, it may include automatic updating or upgrading of the Sites with or without any additional notice to you and the Terms will govern any such Updates unless these are accompanied by a separate license agreement which will prevail, and all references herein to the Sites shall include such Updates. For clarity, XRHealth has no obligation to provide Updates.

17. STORAGE OF YOUR DETAILS

Your Personal Information is transmitted via an encrypted connection and stored by XRHealth. Please see our Privacy Policy for more details.

18. TERMINATION

If you object to any of these Terms, as may be amended from time to time, or become dissatisfied with the Service, you may terminate these Terms at any time by stopping your use thereof and this will be you sole remedy in such circumstances.

If you are in breach of these Terms, or any ancillary terms (such as our Privacy Policy or Direct Debit Terms and Conditions), we may terminate the Services upon seven (7) days’ written notice.

In such circumstance and upon termination of these Terms for whatever reason:

the license and all other rights granted to you hereunder will automatically terminate, and we will take immediate steps to discontinue your access to the Services and the Sites;

you must comply with these terms relating to the Hardware, including returning the Hardware immediately, unless it has been purchased by you in accordance with clause 11;

you must immediately cease all use of the Services, delete and destroy all copies of the App in your possession or control and so certify to XRHealth if required by it; and

the provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Please note that failure to comply with any of use restrictions set forth in these Terms may result (at XRHealth’s sole discretion) in the termination of your use of the Service and may also expose you to civil and/or criminal liability.

We note that we can suspend or terminate your Account if we believe, in our sole discretion, that one (or more) of the following events have occurred:

there is risk to the security or privacy of your Account;

there is a threat to the security or integrity of our network or our servers;

suspension is needed to protect the rights, property or safety of XRHealth, its users or the public;

there is a basis for termination of your Account;

you have violated these Terms or our Direct Debit Terms and Conditions; and/or

we are required to by law.

In addition to clause 3.16 and clause 3.23, XRHealth may, at any time, terminate your Account for whatever reason.

19. PRIVACY

XRHealth and our Related Entities are collecting your Personal Information for the purpose of providing the Services and getting a better understanding of our target market. We will otherwise handle your Personal Information in accordance with our Privacy Policy which is available on our Sites.

By providing your Personal Information, you agree to the terms of our Privacy Policy.

20. GENERAL

If a provision of these Terms are invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

Other than as expressly set out in these Terms, no party has relied on any representation made by or on behalf of the other.

Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right of XRHealth.

These Terms are governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the state and federal courts located in Melbourne, Victoria.

21. FORCE MAJEURE

XRHealth, its affiliates and information providers will not be liable or deemed to be in default for any delay or failure in performance or interruption of the provision of any Services that may result directly or indirectly from any cause or circumstance beyond its or their reasonable control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, transportation embargo, computer viruses, epidemics or pandemics, unauthorised access, theft, operator errors, severe weather, earthquakes or natural disasters, strikes or other labour problems, wars, or governmental restrictions.

These Terms were last updated on 3 May 2024.