THE BORING STUFF

Terms and Conditions of Service

The following terms and conditions of service (Terms and Conditions) govern all of the Services that The Facial Physio Pty Ltd ACN 618 324 388 trading as “The Facial Physio” and “Physio Science” (The Facial Physio) agrees to provide to you (Client).

By using the Services, the Client agrees to become bound by these Terms and Conditions. If the Client does not agree to these Terms and Conditions, then the Client may not use the Services.

1. DEFINITIONS & INTERPRETATION

1.1 Definitions

In this document unless inconsistent with the context or subject matter:

(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));

(b) “Applicable Laws” means all legislation, orders, by-laws, regulations and codes made thereunder in any way governing or affecting the Services;

(i) relating to or arising from the Services;

(ii) that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature;

(iii) that a party claims as confidential and marks as confidential at the time of disclosure;

(iv) and includes these Terms and Conditions,

but does not include information that:

(i) is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or

(ii) becomes publicly available without breach of these Terms and Conditions; or

(iii) is disclosed under a statutory duty of disclosure or otherwise by law;

(d) “Content” includes verbal, written and visual content used in connection with the Services including any material, text, pictures, sound, image, artwork, computer code, graphics, video and other data;

(e) “Fees” means the fees payable by the Client in accordance with clause 5.1;

(f) “GST” has the same meaning as in the GST Act;

(g) “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(h) “Intellectual Property” means all intellectual property rights, including patents, copyright, trade marks, any right to have Confidential Information kept confidential and any application or right to apply for registration of any of these rights, and includes the following:

(i) the Services;

(ii) Content delivered by The Facial Physio in connection with the Services;

(iii) presentations, information or data, source codes and other information technology relating to or connected with the Services;

(iv) books and records relating to or connected with the Services;

(v) advices (including without limitation verbal advices), treatments and recommendations relating to or connected with the Services;

(vi) marketing information relating to or connected with the Services;

(vii) technical information, including trade secrets, drawings, plans, strategies, relating to or connected with the Services;

(viii) licences and authorisations relating to or connected with the Services;

(ix) ideas relating to the Services; and

(x) all intellectual property rights which are developed by The Facial Physio or acquired by The Facial Physio whether before, during or after the end of the parties mutual dealings;

(i) “Loss” means any loss, liability, cost (including legal costs on a solicitor own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);

(j) “Privacy Policy” means The Facial Physio’s privacy policy, as updated from time to time;

(k) “Services” means the services provided by The Facial Physio in accordance with clause 2;

(l) “Term” means the term of these Terms and Conditions, commencing on the date these Terms and Conditions are agreed to and continuing unless or until terminated earlier; and

(m) “Website” means the website of The Facial Physio.

1.2 INTERPRETATION

In this document, unless inconsistent with the context or subject matter:

(a) a reference to a person includes any other legal entity and vice versa;

(b) words importing the singular number include the plural number and vice versa;

(d) headings are for reference purposes only and must not be used in interpretation;

(e) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;

(f) a reference to a statute includes all regulations and subordinate legislation and amendments;

(g) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;

(h) a reference to a monetary amount is a reference to an Australian currency amount;

(i) an obligation of two or more parties binds them jointly and each of them severally;

(j) an obligation incurred in favour of two or more parties is enforceable by them severally;

(k) references to time are to local time in New South Wales;

(l) where time is to be reckoned from a day or event, the day or the day of the event must be excluded;

(m) a reference to a business day means any day on which trading banks are open for business in New South Wales;

(n) if any time period specified in this document expires on a day which is not a business day, the period shall expire at the end of the next business day;

(o) a reference to a month means a calendar month.

2. SERVICES

2.1 Supply of Services

In consideration for the payment of the Fees, The Facial Physio agrees to provide the Client with the Services in accordance with these Terms and Conditions. The Services are provided on a non-exclusive basis.

2.2 Provision of Services

The Facial Physio provides the following Services:

(a) in clinic services; and

(b) telehealth services, which are provided through an application/platform advised by The Facial Physio.

All Services provided are tailored to the Client, based on what The Facial Physio believes is likely to assist the Client and as such the Services must be used by the Client for their individual purposes only.

2.3 Scope of Services

The scope of the Services being provided by The Facial Physio will be as set out on the Website or as otherwise advised by The Facial Physio in person.

3. CLIENT OBLIGATIONS

3.1 Provide information

(a) The Client acknowledges that The Facial Physio will use reasonable endeavours to provide advice and treatment in the provision of the Services based on the information provided by the Client. As The Facial Physio is reliant upon the information provided by the Client, the Client agrees to:

(i) disclose to The Facial Physio before and during the Services in a true, up to date, accurate and complete manner all information that concerns:

A. any health concerns that the Client may have;

B. any medical conditions of the Client;

C. any symptoms of the Client;

D. any medications taken by the Client recently;

E. the Client’s medical history; and

F. any other health information that a reasonable person would consider necessary to provide to a professional providing similar services to those contemplated by these Terms and Conditions; and

(ii) answer truthfully any questions or follow up questions (including where provided in form or online questionnaire).

(b) Should the Client fail to provide any information in accordance with this clause they acknowledge and agree that the Services provided may not be suitable for them and releases The Facial Physio from any liability suffered by the Client as a result of or in any way connected with the Client’s failure.

3.2 Compliance

The Client’s use of the Services, and the information the Client provides to The Facial Physio, must not:

(a) be false, inaccurate or misleading;

(b) be fraudulent or deceptive;

(c) infringe any third party's copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy; or

(d) violate any Applicable Laws.

4. TREATMENTS

4.1 Informed Consent

(a) Prior to and during the Services, The Facial Physio will discuss the nature, options, purpose and risks related to the Services and provide explanations of the Services with the Client so that they are appropriately informed and can give an appropriately informed consent.

(b) Prior to and during the Services, The Facial Physio will request the Client’s express consent to any assessment, treatment, examinations, therapy and diagnostic procedures. As above noted, the information provided by The Facial Physio is given to the Client to ensure that the Client fully understands any risks involved. If the Client does not understand, it is the Client’s responsibility to request further clarification.

(c) There are risks related with certain treatments that can increase if The Facial Physio is not made aware of certain facts. The Client must ensure that they fully disclose that information that they obligated to provide in accordance with these Terms and Conditions to The Facial Physio.

(d) The Client may choose to consent or refuse any form of treatment for any reason. Consent may be withdrawn at any time.

(e)

4.2 Acknowledgements

(a) The Client acknowledges and agrees that they are solely responsible for making their own enquiries and ensuring that any treatment provided by The Facial Physio is appropriate for them. The Client understands that the nature, options, purpose and risks of the treatment will be explained prior to treatment and that they have an opportunity to discuss with The Facial Physio, the nature, options, purpose and risks of any treatment before participating.

(b) The Client acknowledges that:

(i) there are inherent risks associated with the Services;

(ii) they have been informed of the possible strenuous nature of the treatment provided as part of Services and the potential for undesirable physiological results including, but not limited to injury and/or death;

(iii) the Client is solely responsible for their own health and wellbeing during any type of treatment;

(iv) the Client is not obligated to perform nor participate in the Services;

(v) the Client is able to seek a further opinion;

(vi) once consent is given, the Client may expressly withdraw it and the Services will cease if consent is withdrawn (to the extent necessary);

(vii) the Client is solely responsible to refuse such participation or modify such participation in the Services;

(viii) the Client is solely responsible for following or not following, or making any assessment of any Services;

(ix) failure to follow any advice or treatment may affect the overall results achievable by the Services;

(x) the Client is solely responsible for the results they achieve in participating in the Services; and

(xi) while performing the Services they may be injured or die.

(c) If at any time the Client notices any unanticipated changes to their health (physical, mental or emotional including without limitation feeling lightheaded, faint, dizzy, nauseated or experience pain or discomfort) the Client will:

(i) immediately cease participation in any treatments;

(ii) seek medical attention immediately; and

(iii) notify The Facial Physio.

(d) The Client acknowledges and agrees that if at any time they do feel any unanticipated changes, they will obtain a medical clearance before embarking on any further treatment.

(e) If in the unlikely event the Client is in a life threatening position, the Client acknowledges they are solely responsible to immediately call the local emergency number.

5. PAYMENTS

5.1 Fees

In consideration of The Facial Physio providing the Services, the Client must pay to The Facial Physio the Fees in the amounts and on the terms as set out on the Website or as otherwise advised in person.

5.2 Late Payment

If the Client fails to pay any amount when due under these Terms and Conditions, the Client acknowledges that The Facial Physio may in its discretion:

(a) suspend the provision of the Services to the Client, and The Facial Physio will not be responsible for any Loss suffered by the Client because of this; and/or

(b) charge the Client interest calculated at 12% per annum which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.

5.3 GST

Unless otherwise indicated, amounts stated in the Schedule do not include GST. In relation to any GST payable for a taxable supply by The Facial Physio, the Client must pay the GST subject to The Facial Physio providing a tax invoice.

5.4 General

All Fees must be paid via EFT online into the bank account nominated by The Facial Physio or by any other means specified by The Facial Physio. If The Facial Physio permits the Client to pay by card, then The Facial Physio reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).

The Client must pay The Facial Physio all Fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.

The Client must pay to The Facial Physio immediately on demand payment of all costs incurred by The Facial Physio in collecting any outstanding amounts, including legal fees on a solicitor own client basis.

To the extent permitted by law, all Fees are non-refundable under any circumstances.

6. RESCHEDULING AND CANCELLATIONS

6.1 It is the Client’s sole responsibility to ensure that they are available for, and attend, any scheduled Services (Appointments).

6.2 If the Client attends an Appointment late, but within the designated time slot, The Facial Physio reserves the right to provide the Client with a shorter Appointment (without offering a refund). If the Client arrives for an Appointment after the designated time or entirely misses the Appointment, the Client will not be entitled to reschedule the Appointment and is not entitled to a refund of any Fees paid with respect to that Appointment. The Facial Physio is not required to reschedule any Services at the Client’s request.

6.3 Rescheduling of any Appointments is at the sole discretion of The Facial Physio and subject to:

(a) the Client having made the request in writing to The Facial Physio at least 24 hours before the scheduled start time of the Appoint; and

(b) the Facial Physio confirming that the Appointment has been rescheduled.

6.4 The Facial Physio reserves the right to reschedule, amend or cancel the Services, and to change or revise Content as required. The Facial Physio will endeavour to provide an alternative arrangement where available, and where not, a pro-rata refund of the Fees that relate to the particular Services affected (as calculated by The Facial Physio) will be issued. If changes are made to the Services, The Facial Physio will use reasonable efforts to maintain equivalent standards.

7. PRIVACY

7.1 The Client consents to the collection, use and disclosure of the Client’s personal information by The Facial Physio in connection with these Terms and Conditions and in accordance with the Privacy Policy.

7.2 The Client consents to The Facial Physio providing the Client’s personal information (including health information) to third parties:

(a) for any purpose connected with the Services; and

(b) where necessary in order to provide the Client with the best level of care.

8. SUBCONTRACTING

8.1 The Facial Physio may subcontract its obligations under these Terms and Conditions in its sole discretion, including without limitation, providing the Services through third parties.

9. INTELLECTUAL PROPERTY

9.1 The Facial Physio (or the appropriate licensor) will retain the title and ownership of any Intellectual Property. The Client acknowledges and agrees that no Intellectual Property will be assigned to the Client.

9.2 The Facial Physio grants the Client a revocable, non-exclusive, non-assignable or transferable personal licence to use the Intellectual Property and/or Confidential Information solely for the purpose and to the extent necessary to partake in the Services during the Term.

9.3 The Client agrees not copy, reproduce, alter, modify, create derivative works, or publicly display any of the Intellectual Property unless with The Facial Physio’s prior written consent or the appropriate third party authorised to grant such permission.

9.4 Where the Client provides The Facial Physio with information, the Client grants The Facial Physio a worldwide, non-revocable, non-exclusive, royalty free licence to use that information solely for the purpose and to the extent necessary in the provision of the Services.

10. CONFIDENTIALITY

10.1 Other than where:

(a) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;

(b) expressly agreed by all parties in writing; or

the Client must at all times:

(d) treat and keep the Confidential Information confidential;

(e) not use, or allow the use, of the Confidential Information by any third party; and

(f) not disclose or allow the disclosure of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.

10.2 If requested by The Facial Physio, the Client must immediately return all Confidential Information, and any copies of the Confidential Information, to The Facial Physio.

10.3 In the event of a breach or threatened breach of the terms of this clause by the Client, The Facial Physio will, as between the parties, be entitled to an injunction restraining the Client from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by The Facial Physio.

10.4 This clause shall not merge on the expiry or earlier termination of the Term.

11. DISCLAIMER

11.1 The Facial Physio provides the Services and any Content on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause, The Facial Physio excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.

11.2 The Client acknowledges and agrees that:

(a) The Facial Physio does not make any representations in relation to the continuing availability of the Services and will not be liable for the Services being unavailable or discontinued;

(b) The Facial Physio does not promise that the Services will be error-free or uninterrupted;

(d) although every effort has been made to ensure the Content is complete and accurate, The Facial Physio makes no warranties or representations as to the accuracy, currency, suitability, reliability, availability and/or timeliness of the Content and assumes no liability or responsibility for any errors or omission in the Content; and

(e) the Client assumes total risk for their use of the Services.

11.3 This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms and Conditions or the Client’s use of the Services.

12. LIABILITY

12.1 Subject to the other terms of this clause, and to the extent permitted by law, The Facial Physio accepts no responsibility for any Loss however caused, which the Client may suffer in connection with or arising from:

(a) the Client’s use of the Services;

(b) the participation by the Client in any of the Services;

(d) the Client’s act’s, omissions and conduct;

(e) the Client’s reliance on any information.

12.2 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of The Facial Physio in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

12.3 Where any law (including the ACL) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, The Facial Physio’s liability for breach of that non-excludable condition, warranty or guarantee will, at The Facial Physio’s option, be limited to the supply of the Services again, or the payment of the cost of having them supplied again.

12.4 Subject to the other terms of this clause, The Facial Physio’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms and Conditions:

(a) is excluded for:

(i) any indirect, incidental, special, consequential or exemplary damages that may be incurred by the Client, howsoever caused and under any theory of liability including but not limited to loss of profit, loss of goodwill or business reputation, loss of data, costs of procurement of substitute goods or services, or other intangible losses;

(ii) any reliance placed on the Services; or

(iii) any changes made by The Facial Physio to the Services;

(b) is limited, insofar as concerns other liability, to the greater of:

(i) the lowest amount permitted by law; or

(ii) the total money paid to The Facial Physio under these Terms and Conditions in the one month period preceding the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

13. INDEMNITY

13.1 The Client indemnifies The Facial Physio from and against all Losses, claims, expenses, damages and liabilities (including any direct, indirect, special or consequential losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses which arise out of:

(a) any breach of these Terms and Conditions by the Client, including any failure to pay any Fees on time;

(b) the Client’s use of the Services;

(d) the use or reliance on any information provided by The Facial Physio to the Client;

(e) any claims made by third parties against The Facial Physio arising directly or indirectly out of the provision of the Services;

(f) the Client’s violation of any law (including intellectual property rights);

(g) the enforcement of these Terms and Conditions;

(h) any claim made against The Facial Physio by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by the Client; and

(i) any negligent, fraudulent or criminal act or omission of the Client or its personnel.

14. TERMINATION

14.1 Termination by The Facial Physio

The Facial Physio may terminate these Terms and Conditions, immediately, at any time by written notice to the Client if:

(a) The Client fails to pay any fees due under these Terms and Conditions on time;

(b) The Facial Physio reasonably believes that the Client’s actions may cause legal liability for The Facial Physio or for other clients of the business; or

(c) The Facial Physio reasonably believes that the conduct, acts or omissions of the Client threaten, interfere or impact upon the integrity or credibility of the Services or The Facial Physio.

14.2 Effect of termination

Upon termination of these Terms and Conditions, all amounts payable by the Client to The Facial Physio become immediately due and owing. For the avoidance of doubt, no refunds of the Fees will be provided in the event of the early termination of these Terms and Conditions.

14.3 Survival

(a) Any provision of these Terms and Conditions which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.

(b) Termination of these Terms and Conditions shall be without prejudice to the rights and liabilities of the parties which arose prior to the termination.

15. GENERAL PROVISIONS

15.1 No Reliance

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.

15.2 Binding on Successors

These Terms and Conditions shall be binding on the parties and their heirs, executors, successors and permitted assigns.

15.3 Governing Law

(a) These Terms and Conditions is governed by the laws of New South Wales and the Commonwealth of Australia which are in force in New South Wales.

(b) The parties submit to the jurisdiction of the Courts of New South Wales, relevant Federal Courts and Courts competent to hear appeals from them.

15.4 Further Assurances

The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms and Conditions.

15.5 Entire Understanding

(a) These Terms and Conditions contains the entire understanding and agreement between the parties as to the subject matter of these Terms and Conditions.

(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this document are merged in this document and are of no further effect.

(c) No oral explanation or information provided by a party to another affects the meaning or interpretation of this document or constitutes any collateral agreement, warranty or understanding.

15.6 Waiver

No waiver by a party of a provision of these Terms and Conditions is binding unless made in writing.

15.7 Severance

If a provision of these Terms and Conditions is void or unenforceable it must be severed from or read down to the extent necessary from this document and the provisions that are not void or unenforceable are unaffected by the severance.

15.8 Cumulative Rights

The rights and remedies of a party to these Terms and Conditions are in addition to the rights or remedies conferred on the party at law or in equity.

15.9 Counterparts and Email

These Terms and Conditions may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

15.10 Attorneys

Where these Terms and Conditions is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

15.11 Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms and Conditions.

15.12 Legal Rules of Interpretation

The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

15.13 Time of the Essence

Time is in all cases and in every respect of the essence of these Terms and Conditions.

15.14 Dispute Resolution

(a) If a dispute arises in connection with these Terms and Conditions then a party may only deal with that dispute in the manner set out in this clause.

(b) A party to a dispute which arises in connection with these Terms and Conditions may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.

(c) Within 14 days after a notice is given under sub-clause (b) of this clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.

(d) If despite the parties’ best efforts a dispute not resolved within 14 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Mediation Rules of The Institute of Arbitrators and Mediators Australia. The mediation will be conducted by a mediator to be appointed by agreement of the parties or in default of agreement to be appointed by the then Chair (or his or her designated representative) of the Resolution Institute (ACN 008 651 232).

(e) If the dispute is not resolved within 14 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.

The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.