Last Updated Date: May 18, 2023
PLEASE BE AWARE THAT SECTION 1.4 (OPTHEA COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL.
1. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Opthea and its licensors reserve all right, title, and interest in and to the Services, and the information and content available on them, that are not expressly granted herein. Subject to the terms of this Agreement, Opthea grants you a non-transferable, non-exclusive, revocable, limited license to access and use the Website for your own personal use or internal business use.
1.1 Medical Disclaimer. THE CONTENT AND MATERIALS PROVIDED ON THE WEBSITE ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND DO NOT INCLUDE THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. ANY SUCH INFORMATION OR ANY ADVICE OR OTHER MATERIALS PROVIDED THROUGH THE WEBSITE SHOULD NOT BE CONSIDERED MEDICAL ADVICE. PLEASE CONSULT YOUR HEALTH CARE PROFESSIONALS FOR ADVICE REGARDING YOUR SPECIFIC MEDICAL CONDITIONS AND TO ANSWER YOUR QUESTIONS REGARDING YOUR HEALTH AND MEDICAL TREATMENT.
1.2Forward-Looking Statements. The Services may contain forward-looking statements and projections that are based on Opthea’s current beliefs and assumptions and on information currently available that we believe to be reasonable. However, such statements necessarily involve risks, uncertainties, and assumptions. Investments involve risk and unless otherwise stated, are not guaranteed. In considering any performance information contained herein, you should bear in mind that past or projected performance is not necessarily indicative of future results, and there can be no assurance that any entity referenced herein will achieve comparable results or that return objectives, if any, will be met. Current or future characteristics and other information may vary significantly from those provided herein. Opthea undertakes no obligation to notify anyone of such variances or update the information herein.
1.3Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Opthea’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Opthea, its suppliers and service providers reserve all rights not granted in the Agreement.
1.4Opthea Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Opthea and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2.RESPONSIBILITY FOR CONTENT. You acknowledge that all information, data, text, software, content, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Opthea, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services, including, without limitation, any resume and/or cover letter submitted in connection with a job opening through the Website (“Your Content”). OUR SERVICES ARE NOT DESIGNED TO PROCESS ANY HEALTH INFORMATION. PLEASE DO NOT SUBMIT ANY HEALTH INFORMATION TO OR THROUGH THE WEBSITE OR SERVICES. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY PROCESSING OF YOUR HEALTH INFORMATION THAT YOU SUBMIT IN VIOLATION OF THIS SECTION.
3.1 Services. Except with respect to Your Content, you agree that Opthea and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Opthea software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
3.2 Trademarks. and Opthea’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Opthea and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3.3 Your Content. Opthea does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
3.3 License to Your Content. You grant Opthea a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use Your Content (in whole or in part) for the purposes of operating and providing the Services to you, including to provide you with newsletters and updates regarding our products and services when you sign up for such updates. You agree that you, not Opthea, are responsible for all of Your Content.
3.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Opthea through its contact, suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that Opthea has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Opthea a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Opthea’s business.
4. USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Opthea’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Opthea; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
5. Third-Party Services. The Website may contain links to third-party websites, applications, and/or advertisements (collectively, “ Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left the Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Opthea. Opthea is not responsible for any Third-Party Services. Opthea provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
6. INDEMNIFICATION. You agree to indemnify and hold Opthea, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Opthea Party” and collectively, the “Opthea Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Opthea reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Opthea in asserting any available defenses. This provision does not require you to indemnify any of the Opthea Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS.
7.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES (INCLUDING ANY INFORMATION OR CONTENT AVAILABLE THEREON) IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. OPTHEA EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) OPTHEA MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OPTHEA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT OPTHEA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OPTHEA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
7.3 Materials Available through the Services. As a part of the Services, you may have access to materials that are owned, created, or otherwise made available by Opthea or another party. You agree that Opthea does not endorse, guarantee or recommend such materials and that you access these materials at your own risk. Opthea does not assume responsibility for the accuracy, efficacy, or veracity of any content posted by Opthea or by third parties or any of its users that are made available through the Services.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL OPTHEA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT OPTHEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF AN OPTHEA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN OPTHEA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN OPTHEA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, OPTHEA PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN OPTHEA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN OPTHEA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN OPTHEA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPTHEA AND YOU.
9. MONITORING AND ENFORCEMENT. Opthea reserves the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services and/or terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
If Opthea becomes aware of any possible violations by you of the Agreement, Opthea reserves the right to investigate such violations. If, as a result of the investigation, Opthea believes that criminal activity has occurred, Opthea reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Opthea is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Opthea’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Opthea or the public, and all enforcement or other government officials, as Opthea in its sole discretion believes to be necessary or appropriate.
10. TERM AND TERMINATION.
10.1 Term. The Agreement commences on the date when you accept its terms (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
10.2Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
10.3 Termination of Services by Opthea. If you have materially breached any provision of the Agreement or if Opthea is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Opthea has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Opthea’s sole discretion and that Opthea shall not be liable to you or any third party for any termination of your access to the Services or your rights under this Agreement.
10.4Termination of Services by You. You may terminate this Agreement at any time by ceasing your use of the Services.
10.5Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Opthea will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
10.6No Subsequent Access or Use. If this Agreement is terminated by Opthea due to your violation of any portion of the Agreement or for conduct otherwise inappropriate, then you agree that you shall not attempt to access or use the Services again. In the event that you violate the immediately preceding sentence, Opthea reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11.INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Opthea intends to announce such Services or Content in your country. Opthea makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
12.1 ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
12.2Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Opthea agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New Jersey.
12.3Electronic Communications. The communications between you and Opthea may take place via electronic means, whether you visit the Services or send Opthea e-mails, or whether Opthea posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Opthea in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Opthea provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
12.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Opthea’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.5Force Majeure. Opthea shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.6Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.7Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
12.8Notice. Where Opthea requires that you provide an e-mail address, you are responsible for providing Opthea with your most current e-mail address. In the event that the last e-mail address you provided to Opthea is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Opthea’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Opthea at the following address: Opthea Ltd. Suite 0403, Level 0034, 650 Chapel Street, South Yarra, Victoria 3141. Such notice shall be deemed given when received by Opthea by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
12.9Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.10 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.11 Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Opthea are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Opthea products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.