TERMS AND CONDITIONS
1. SCOPE OF TERMS & CONDITIONS
Unless otherwise indicated, these terms and conditions of use (“Terms and Conditions”) apply to:
your use of and/or access to the DefeatDiabetes.com.au website and/or other websites (collectively, “Website”) which are owned or operated by Defeat Diabetes, Pty Ltd ACN 642 895 609. (“Defeat Diabetes”, “we,” “us,” or “our”), including any portions thereof available only to subscribers;
your use of and/or access to the mobile phone applications which we may own or operate currently or in the future (collectively, the “Mobile App”); and
your use of and/or access to any content or information and other online or mobile-enabled technology, digital tools and other services and products provided by us (together with the Website and the Mobile App, collectively, the “Services”).
If you are not willing to be or cannot be bound by all of these Terms and Conditions, then do not access, browse or otherwise use the Services. Moreover, Defeat Diabetes does not and will not grant you any right or license to access, browse or otherwise use the Services in any way, without your willingness and ability to be bound by all of these Terms and Conditions.
If you do not abide by the provisions of these Terms and Conditions, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and files in your user account and/or restrict any further access to such information and/or files, or our Services, with or without notice to you.
2. AGREEMENT AND ACKNOWLEDGEMENT
User Agreement. By using the Services, you accept these Terms and Conditions and agree to be legally bound and to abide by the terms, conditions, and notices contained or referenced herein.
Changes to Terms and Conditions. From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of these Terms and Conditions (“Additional Terms”). Such Additional Terms shall become effective upon posting by us on the Website, the Mobile App, via the Service or sending you an email or other similar notification. You will be deemed to have agreed to such Additional Terms by your decision to continue accessing the Mobile App or the Website or otherwise using any of the Services following the date in which such Additional Terms become effective.
Modification of Services. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services provided to you, including, but not limited to:
restricting the time the Services are available,
restricting the amount of use permitted,
restricting or terminating any user’s right to use the Services; and
changing any feature or functionality provided by the Services.
You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice to you. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Services.
Downloading Mobile App. You may access the Mobile App which can be downloaded from an applications store or applications distribution platform, such as the Apple Mobile App Store or Google Play, amongst others (the “Mobile App Provider”). You acknowledge and agree that:
these Terms and Conditions are entered into between you and us, and not with you and the Mobile App Provider, and that we are solely responsible for the Mobile App (not the Mobile App Provider);
the Mobile App Provider has no obligation to furnish any maintenance and support services with respect to the Mobile App;
the Mobile App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App, including, but not limited to:
product liability claims;
any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and
claims arising under consumer protection or similar legislation;
in the event of any third party claim that the Mobile App or your possession and use of that Mobile App infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions;
the Mobile App Provider and its subsidiaries are third party beneficiaries of these Terms and Conditions as it relates to your license of the Mobile App, and that, upon your acceptance of these Terms and Conditions, the Mobile App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions as related to your license of the Mobile App against you as a third party beneficiary thereof; and
you must also comply with all applicable third-party terms of service when using the Services.
We do not permit individuals under 18 years of age to become registered users of our Services. By using the Services, you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these Terms and Conditions and to abide by these Terms and Conditions.
Due to the physiological sensitivity that occurs with pregnancy we do not recommend that individuals who are pregnant access or use our Services.
If you currently have, or have a goal to be at, a Body Mass Index (“BMI”) below 18.5, we also do not recommend that you access or use our Services. According to the Australian Government’s Department of Health, a healthy BMI range is between 18.5-24.9, with a BMI falling below 18.5 to be considered underweight. Weight loss for underweight individuals is not recommended and should be supervised by an appropriately qualified medical professional.
4. SUBSCRIPTIONS; BECOMING A SERVICE USER
Our Services consist of a paid subscription Subscription fees are either paid:
by the user (“Personal Service”) or
by a third party on behalf of the user (“Business Service”).
Subscriptions are offered for durations and costs as set out in the Schedule.
We will only eliminate or modify the features or functionality of the Services by providing you with reasonable notice of such change either on our Website, Mobile App or in an email or other similar notification to you.
You are responsible for all charges and fees associated with connecting to and using the Website and/or Mobile App, including without limitation all telephone access lines (including mobile data and data roaming charges, when applicable), telephone and/or internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Website and/or Mobile App.
5. FEES, RENEWAL, CANCELLATIONS & REFUND POLICIES
If you are a subscriber to our Services, you further agree as follows:
Agreement to Pay. If you are a Services user, you will be responsible for all fixed and periodic charges and fees you selected at the time of subscription. You will also be responsible for all applicable taxes, and other charges and fees incurred in order to access the Services which may apply.
Auto-Renewal. Your Services subscription will automatically be extended for successive renewal periods of the same duration selected at the time of purchase, at the then-current non-promotional subscription rate as advertised on our Website or Mobile App. Until you cancel your subscription, we will charge or debit your payment method at the beginning of your subscription and at the commencement of any renewal period. Your non-cancellation of the Services or continued use of the paid subscription features of the Services will be taken to be your consent for us to charge you for the renewal of your subscription to the Services during the then-current renewal period. If your credit or debit account has been closed or your payment method is otherwise invalid, your subscription may not renew and your subscription will be automatically suspended effective as of the end of your then-current billing cycle. The renewal fees and charges will generally be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period of any change to our fees and charges. If you purchased a multiple-period prepayment plan or you were eligible for a promotional rate but are no longer eligible for that rate, then you will be offered to renew your subscription at our then-current non-promotional subscription rate at the start of the renewal period. If you wish to renew your subscription and we are currently offering promotional rates at such time, you must renew your subscription prior to the termination of your current plan. If you fail to renew your subscription for any Service before its scheduled expiration date, then the then-current non-promotional subscription rate will apply to any subsequent renewal.
Cancellation of Service Subscription. You can cancel your subscription for our Services at any time via the Apple Store or via Google Pay. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect on a pro-rata basis. If you terminate your paid subscription for Service, your subscription will remain active until the end of your then-current subscription period.
No Refund Policy. To the extent permitted by law, all fees and charges assessed by Defeat Diabetes are non-refundable.
Modifications. We reserve the right to revise the terms of the fee charge, cancellation and refund policies, upon reasonable advance notice communicated to you through a posting on the Website and/or Mobile App or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). Any changes made will apply to all memberships created or renewed after the date such change was implemented.
6. USER ACCOUNT AND SECURITY
In connection with your use of certain features of the Services, you will be required to complete a registration form. You represent and warrant that all user information you provide on the registration form or otherwise in connection with your use of the Services will be current, complete and accurate. As a registered user of the Services, you are entirely responsible for maintaining the confidentiality of your user account information, including your login details. You may not use the account or username of any other member at any time. You must notify us immediately in the event of any known or suspected unauthorised access to, or use of, your user account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of yours or anyone else’s user account information.
You are also entirely responsible for any and all activities which occur under your user account. We will not be liable for any loss that you incur as a result of someone else using your account, either with or without your knowledge. You may also be held liable for any losses incurred by Defeat Diabetes, its officers, directors, employees, consultants, agents and representatives due to someone else’s unauthorised access to, or use of, your account.
As a subscriber to our Service, you further agree as follows:
One Account Per User. You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Services. If your registration or subscription is revoked for any reason, you agree not to register or subscribe again with our Services using another username or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to suspend or terminate any new accounts you have registered without any notice to you, or to exercise any other remedies available to us under these Terms and Conditions or by law.
7. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM DEFEAT DIABETES & BUSINESS CUSTOMERS
Service Announcements. In using the Services, you may receive periodic electronic communications from Defeat Diabetes regarding the Services, such as information regarding the Website and/or the Mobile App, which are part of the Services and which you cannot opt out of receiving.
Promotional Communications. You may also receive periodic promotions and other offers or materials Defeat Diabetes believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by either (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in your account.
Withdrawing Your Consent. If you decide that you no longer want to receive future communications from us electronically, please send an email to support@DefeatDiabetes.com.au. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above, but no later than five business days after receiving notice of the withdrawal of your consent. Your withdrawal of consent will not affect the legal validity or enforceability of these Terms and Conditions provided to, and electronically signed by, you prior to the effective date of your withdrawal. If you withdraw your consent to receive communications electronically, we may terminate your account and/or access to the Service (or any part thereof). Withdrawal of your consent to receive electronic communications from us may also impact on your use of the Services as you may not receive information about important updates or changes to the Services.
8. PUBLIC FORUM; INFORMATION PROVIDED BY MEMBERS
Defeat Diabetes Facebook Group. As a subscriber to our Service, you are automatically invited to join and participate in group discussions (“Defeat Diabetes Facebook Group”) with other users that may be designated as a Defeat Diabetes Facebook Group facilitator by Defeat Diabetes (such person or persons, collectively, the “Facilitators”) as well as personnel from an unaffiliated third party service provider. Defeat Diabetes Facebook Group is a Public Forum, and by using the Defeat Diabetes Facebook Group, you may receive electronic communications, including group chat messages and/or private messages from Facilitators and other Defeat Diabetes Group Facebook members who are members of the same Defeat Diabetes Facebook Group. Defeat Diabetes Facebook Group members can see your user ID and public profile, but will not see your email address. If you do not wish to receive messages from other members of your Defeat Diabetes Facebook Group, you can opt out of a Defeat Diabetes Group. Whether you transmit any User Content via private messaging or group chat feature, you agree to abide by our Community Standards and Conduct Guidelines at all times. You further acknowledge and agree that by providing you with the ability to distribute User Content in any Public Forum and the Defeat Diabetes Facebook Group, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or accept any liability relating to any User Content or activity in any Public Forum or the Defeat Diabetes Facebook Group, nor do we endorse any such User Content or activity. Although we reserve the right to monitor some, all, or no areas of the Services (including any Public Forum and Defeat Diabetes Group) for adherence to the community standards and conduct guidelines set forth above and to remove, without notice, any User Content for any reason, we have no obligation to review User Content prior to the User Content’s posting or to delete User Content that you may find objectionable or offensive. Defeat Diabetes disclaims any perceived, implied or actual duty to monitor Public Forums and the Defeat Diabetes Facebook Group and specifically disclaims any responsibility or liability for information provided therein.
Public Profile; Information Provided by Members. In order to join a Defeat Diabetes Facebook Group or access similar services that provide Public Forums or interactions with other members, you may be required to create a public profile, which may contain certain identifying information (such as your name, age, profile photos, location, etc.). In addition, you have the option to post photographs, messages, videos and other information on your public profile. Defeat Diabetes relies on you to provide current and accurate information, and Defeat Diabetes does not, and cannot, investigate information contained in any public profile. Accordingly, we must assume that information contained in each public profile is current and accurate. Defeat Diabetes does not represent, warrant or guarantee the currency or accuracy of public profile information, and hereby disclaims all responsibility and liability for any information provided by users of the Services by means of their public profiles or otherwise in connection with their use of the Services.
9. LIMITED LICENSE
Subject to your continued compliance with the Terms and Conditions, including without limitation the timely payment of all applicable fees, we grant you a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to access and use our Services (whether through the Website or by downloading and installing the Mobile App, including any updates and bug fixes). Your use is limited for your personal, non-commercial use only.
The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Defeat Diabetes. Furthermore, except for the limited rights granted in this clause 9, you agree that you will not (and will not attempt to, or encourage or assist any third party to):
modify, alter, tamper with, repair or otherwise create derivative works of the Services or any software or technology included in or used or distributed by Defeat Diabetes to provide the Services; or
reverse engineer, disassemble or decompile the Services, or attempt to discover or recreate the source code for the Services.
10. RESTRICTIONS ON USE OF CONTENT
You acknowledge that our Services contain content, information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials, including nutritional information contributed to the Recipe Database (hereinafter defined) (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or in the future. All Content is copyrighted under Australian Copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Services are trademarks of their respective owners. The Defeat Diabetes Marks (hereinafter defined) are the tradename and the registered trademark and service mark of Defeat Diabetes.
Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on our Services. You agree that you will not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, phone, tablet or any other mobile device, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other applications or networked computer environment is strictly prohibited unless with our prior written consent.
We may at any time suspend your use of the Services and/or remove or disable any Content as to which we reasonably and in good faith believe is in violation of any of these Terms and Conditions. We will provide you with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or in order to prevent imminent harm to the Services or any third party, in which case we will notify you to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable following such suspension or disablement.
11. FOOD DATABASE AND DISCLAIMER
As part of the Services, Defeat Diabetes maintains a food database that contains a combination of nutritional information entered directly by Defeat Diabetes (“Recipe Database”).
Defeat Diabetes does not:
guarantee the accuracy, completeness, or usefulness of any nutritional information in the Recipe Database; or
adopt, endorse or accept responsibility for the accuracy or reliability of any such nutritional information.
Under no circumstances will Defeat Diabetes be responsible for any loss or damage resulting from your reliance on nutritional information appearing in the Recipe Database.
You are solely responsible for ensuring that any nutritional information contained in the Recipe Database is appropriate for your particular circumstances, and is otherwise accurate, complete and useful.
Nutritional information in the Recipe Database may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Defeat Diabetes.
12. USER CONTENT
Definition. “User Content” is any content, materials or information (including without limitation, any text, information, graphics, messages, photos, images, nutritional information contributed to the our food database and works of authorship kind), data, questions, comments, suggestions or other content, including personally identifiable information that you upload, send, email, display, perform, distribute, post or otherwise transmit to us, at our request or on your own accord, on, or through the Services (such as on our closed Facebook group, message boards, or recipe logging for example), whether in connection with your use of the Services or through the use of any Third Party Websites or Third Party Services or otherwise, and whether publicly posted or privately transmitted.
Agreement. You represent and warrant that, when using the Services, you will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights, privacy, or in violation of any applicable law or regulation.
You are solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Services.
Grant of License. You hereby grant Defeat Diabetes, its directors, officers, employees, agents, representatives, service providers, partners, sublicensees, successors and assigns (collectively, the “Defeat Diabetes Parties”) a royalty-free, perpetual, irrevocable, sublicensable, assignable, non-exclusive right (including any moral rights) and license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, transmit, edit, reformat, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform, display and otherwise use any User Content (in whole or in part and with or without the use of your name) worldwide and/or to incorporate the User Content in other works in any form, media, or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights”) that may exist in such User Content.
You hereby represent and warrant that you own all rights, title and interest in and to User Content or are otherwise authorised to grant the rights provided to the Defeat Diabetes Parties under this clause. You also warrant that, to the extent you are not the exclusive holder of all Rights in any User Content, any third party holder of any Rights, including moral rights in such User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
You further acknowledge that we and our successors and assigns shall be entitled to unrestricted use of any of your User Content for any purpose whatsoever, commercial or otherwise, without compensation to you. You also permit any user to access, display, view, store and reproduce any User Content that you have made available in any Public Forum (including a Defeat Diabetes Group) for personal use.
We are not responsible for maintaining a copy of any material we remove from our Services, and we are not liable for any loss you incur in the event that User Content you post or transmit to our Services is removed.
Defeat Diabetes reserves the right to:
remove, suspend, edit or modify any User Content in its sole discretion at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if Defeat Diabetes is concerned that you may have violated these Terms and Conditions), or for no reason at all; and
remove, suspend or block any User Content.
Defeat Diabetes also reserves the right to access, read, preserve, and disclose any information as Defeat Diabetes reasonably believes is necessary to:
satisfy any applicable law, regulation, legal process or governmental request;
enforce these Terms and Conditions, including investigation of potential violations of these Terms and Conditions;
detect, prevent, or otherwise address fraud, security or technical issues;
respond to user support requests; or
protect the rights, property or safety of Defeat Diabetes, its users and the public.
You acknowledge that all User Content is the sole responsibility of the person who made such User Content. This means that you are entirely responsible for all User Content that you post, email or otherwise transmit to or on the Services. We do not control the User Content posted, emailed or otherwise transmitted to or on our Services by others and, as such, we do not guarantee the accuracy, integrity or quality of such User Content. Although we have adopted community standards and conduct guidelines for the users of the Services (as described below), you understand that by using the Services, you may be exposed to User Content that is offensive or objectionable.
Defeat Diabetes disclaims any perceived, implied or actual duty to monitor the User Content, and specifically disclaims any responsibility or liability for information provided in any such User Content. Under no circumstances will we be liable in any way for any User Content (other than for content developed by us), including, but not limited to, for any errors, omissions or any factual inaccuracies in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed or otherwise transmitted to, on or through the Services.
13. THIRD-PARTY WEBSITE CONTENT
Certain content published on the Website and/or Mobile App may include links to websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Defeat Diabetes and some of whom may have not. We do not have control over the content and performance of any such Third-Party Websites.
Defeat Diabetes has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through Third-Party Websites and does not endorse (and is not responsible or liable for) any content, advertising, products, or other materials on or available from such Third Party Websites. Accordingly, Defeat Diabetes does not represent, warrant or endorse any Third-Party Websites, or the accuracy, currency, content, fitness, lawfulness or quality of the information material, goods or services available through any Third-Party Websites.
Defeat Diabetes disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of or reliance on, any content, advertisements, products or other resources available on any Third-Party Websites (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources).
You agree that, when linking to or otherwise accessing or using any Third-Party Websites, you are responsible for:
taking precautions as necessary to protect you and your computer systems from viruses, worms, trojan horses, malicious code and other harmful or destructive content;
any downloading, use or purchase of material that is obscene, indecent, offensive, or otherwise objectionable or unlawful, or that contains technical inaccuracies, typographical mistakes and other errors;
any downloading, use or purchase of material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights of third parties, or that is subject to additional terms and conditions, stated or unstated;
all financial charges or other liabilities to third parties resulting from transactions or other activities; and
14. COMMUNITY STANDARDS AND CONDUCT GUIDELINES
You agree that you will not (and/or will not use any part of our Services) to breach our community standards and conduct guidelines set out in this clause (“Community Standards and Conduct Guidelines”):
(a) Upload, post, email or otherwise transmit any User Content or other materials that:
are unlawful, harmful, threatening, abusive, harassing, inflammatory, tortious, defamatory, vulgar, libelous, slanderous, discriminatory, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
contain adult content, including obscene, pornographic, and/or sexual terms, descriptions and/or images, nudity, profanity or graphic violence;
incite or encourage criminal or terrorist activities or physical harm against another;
exploit political agendas or “hot button” issues for commercial use, or that contain hate speech based upon the race, sex, national original, religious affiliation, marital status, sexual orientation, gender identify, or language of an individual or group;
are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party or that are deceptive, misleading or fraudulent or that may otherwise be unlawful or give rise to civil or criminal liability;
are unauthorised advertising, promotional materials, “junk mail,” “spam,” “phishing,” “chain letters,” “pyramid schemes,” or any other form of solicitation, opinions or notices, commercial or otherwise;
contain software viruses, spyware, adware, worms, or any other computer malware or malicious code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(b) Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
(c) Advertise or otherwise solicit funds or constitute a solicitation for goods or services;
(d) Impersonate any person or entity, including, but not limited to any user of the Services, a director, officer, employee, shareholder, agent or representative of Defeat Diabetes, our Business Customers or any other person or entity, or falsely state or otherwise misrepresent your affiliation with Defeat Diabetes. our Business Customers or any other person or entity;
(e) Provide false, misleading or inaccurate information to Defeat Diabetes or any other member;
(f) Create more than one unique public profile or register for more than one account except as specifically permitted in these Terms and Conditions, create an account on behalf of someone else, or create a false or misleading identity on the Services;
(g) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or other materials transmitted to, on or through the Services;
(h) Attempt to probe, scan or test the vulnerability of the Services or any associated system or network, or breach security or authentication measures without proper authorisation;
(i) Use or affect the Services in any manner that could damage, disable, overburden or impair the Services or its functionality, or disrupt the normal flow of dialogue (including, without limitation, “flooding,” “mail bombing,” or “crashing”), or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Services;
(j) Interfere with, attempt to interfere with, disrupt, or attempt to disrupt the Services or servers or networks connected to the Services (including any security of such Services, servers or networks), or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(k) Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
(l) “Stalk”, intimidate or otherwise harass another user or employee of the Services;
(m) Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Services, including but not limited to usernames or passwords;
(n) Access or attempt to access another user’s account without his or her consent;
(o) Reverse engineer, disassemble or decompile any part of the Services, or attempt to discover or recreate the source code for any part of the Services; or
(p) Assign, transfer or sublicense your rights as a registered user of the Services.
Your privilege to use the Services (including your ability to contribute to discussions on the Public Forum or to other users in a Defeat Diabetes Facebook Group) depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of the Services and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any part of these Terms and Conditions, we may terminate, in our sole discretion, your use of, or participation in, any Public Forum, Defeat Diabetes Facebook Group or your access to and use of the Services. Any violation of this section may also subject you to civil and/or criminal liability.
You agree and understand that you may be held legally responsible for damages suffered by other users of the Services or other third parties as the result of your remarks, information, feedback or other content posted or made available to, on or transmitted through the Services (including in any Public Forum or Defeat Diabetes Facebook Group) that is deemed defamatory or otherwise legally actionable. Defeat Diabetes is not liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the services by you.
Violations of our Community Guidelines may result in criminal and/or civil penalties against you. Defeat Diabetes will investigate any alleged or suspected violations and if a violation of criminal law is reasonably suspected, we may contact and/or cooperate with law enforcement agencies in order to investigate the matter.
15. HEALTH AND MEDICAL SERVICE DISCLAIMER
We do not provide professional medical services or medical advice. The Services provided by us (including any User Content you see on our Services) do not contain or constitute, and should not be interpreted as, medical advice or opinion. No doctor-patient relationship is created between you and us. Use of the services is not for medical emergencies. If you think you have a medical emergency, call 000.
No Doctor-Patient Relationship. Any and all services provided by, in and/or through the Services are for informational purposes only. Defeat Diabetes is not a medical professional, and Defeat Diabetes does not provide medical services or render medical advice. Nothing contained in the Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for professional medical consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition.
Your use of the Services does not create a doctor-patient relationship between you and any of the Defeat Diabetes Parties (including, without limitation, coaches) or any other users of Defeat Diabetes’ Services).
You are urged and advised to seek the advice of an appropriately qualified medical professional with any questions you may have regarding your health before beginning any weight loss program, physical activities or any other plans that may be referenced, discussed or offered under the Services. If you are being treated for an illness, taking any prescription medication or following a therapeutic diet to treat a disease or condition, you are especially urged to consult with an appropriately qualified medical profession before using the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for the purpose of seeking medical attention or advice. You further agree that, before using the Services, you have consulted an appropriately qualified medical professional, particularly if you are at risk for problems resulting from exercise or changes in your diet. If any information you receive or obtain from using the Services that is inconsistent with the medical advice from an appropriately qualified medical professional, you should follow the advice of the appropriately qualified medical professional.
16. RISK ASSUMPTION; YOUR INTERACTIONS WITH OTHERS ON THE WEBSITES, THE WEBSITES SOCIAL CHANNELS AND/OR MOBILE APPS
Defeat Diabetes expressly disclaims any and all liability that may arise from or in connection with your use of the Services and participation in any other activities offered in the Services, including, without limitation, your participation in any Defeat Diabetes Facebook Group or your interactions with any facilitator or coaches or other users of the Services. You knowingly and freely assume all risk when using the Services.
You are solely responsible for your interactions with other users of the Services. You acknowledge and understand that Defeat Diabetes is not obliged in any way to screen its users, inquire into the backgrounds of its users, or review or verify the statements of its users, including without limitation information or representations contained in public profiles. You hereby agree to exercise reasonable precaution in all interactions with other users of the Services, particularly if you decide to meet another user in person. Defeat Diabetes does not represent, warrant, endorse or guarantee the conduct of its users or their compatibility with you.
17. DISCLAIMERS OF WARRANTIES
Defeat Diabetes, on behalf of itself and any of its Third-Party Service Providers, licensors and suppliers, hereby disclaims all warranties. The products, offerings, content and materials provided in the Services are provided “as is” and without warranties of any kind, either express or implied. To the fullest extent permitted by law, Defeat Diabetes, on behalf of itself, and any of its Third-Party Service Providers, licensors and suppliers, disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement. Neither Defeat Diabetes, nor any of its licensors, licensees, service providers or suppliers warrant that the applications or any function contained in the Services will be uninterrupted or error-free, that defects will be corrected, or that the applications or the servers that make the applications available are free of viruses or other harmful components.
Any product, offering, content and material downloaded or otherwise obtained through the use of the Services is done at your sole risk and you will be solely responsible for any damage to your computer system or devices or loss of data that results from the download of any such product, offering, content or material.
Neither Defeat Diabetes, nor any of its licensors, licensees, business customers, service providers or suppliers warrant or make any representations regarding the use or the results of the use of the products, offerings, content and materials in the services in terms of their correctness, accuracy, reliability, or otherwise.
No advice or information obtained by you from our personnel or through the services shall create any warranty not expressly provided for in these Terms and Conditions.
18. AUSTRALIAN CONSUMER LAW
The Services come with guarantees that cannot be excluded under the Australian Consumer Law (“ACL”). For major failures with the Services, you are entitled to:
cancel your subscription with us; and
obtain a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel your subscription and obtain a refund for the unused portion of your subscription.
If the ACL applies to you as a consumer, nothing in these Terms and Conditions excludes your statutory rights as a consumer under the ACL. You agree that our liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms and Conditions.
19. THIRD-PARTY PRODUCTS, SERVICES AND DATA COLLECTION
Certain features, aspects, software products and services offered through the Services may be provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, you may be required to enter into additional terms and conditions with Third-Party Service Providers. Our Terms and Conditions apply only to the Services, and not to the apps of any other person or entity, and your right to use such Third Party Services as part of the Services is subject to and governed by the terms and conditions of the third party license applicable to such Third-Party Services. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products or other materials on or available from such Third Party Service Providers. In the event of a conflict between the terms of these Terms and Conditions and the terms of such third party licenses, the terms of the third party licenses shall control with regard to your use of the relevant Third Party Service.
Defeat Diabetes disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from:
your use of or reliance on, any content, advertisements, products or other resources available on any such Third Party Services or resources (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources); or
(your information collected or used by Third-Party Service providers.
20. LIMITATION OF LIABILITY
You expressly understand and agree that in no event shall Defeat Diabetes, or any of its Third-Party Service Providers, licensors and suppliers be liable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, or any other damages whatsoever, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), arising out of, or resulting from:
the use or the inability to use the Services;
the use of any content or other material on the Services or applications linked to our Services;
the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Services;
unauthorised access to or alteration of your transmissions or data;
statements or conduct of any third party on our Services; or
any other matter relating to the Services.
You, on behalf of yourself, your personal representatives and your heirs and assigns, hereby agree to release, waive, discharge, hold harmless, defend and indemnify Defeat Diabetes and any of Defeat Diabetes’ officers, directors, shareholders, employees, agents, representatives, sublicensees, successors and assigns from any and all claims, actions or losses for bodily injury, property damage, wrongful death, emotional distress, loss of services or other damages or harm, whether to you or to third parties, which may result from your use of the Services.
You understand and agree that the cancellation or termination of your subscription is your sole right and remedy with respect to any dispute with us including, without limitation, any dispute related to, or arising out of:
these Terms and Conditions or our enforcement or application thereof;
the content available on or through the Services or any change in content provided through the Services;
your ability to access and/or use our Services; or
the amount or types of our fees or charges, surcharges, applicable taxes, or billing methods, or any change to our fees or charges, applicable taxes, or billing methods.
The maximum liability of Defeat Diabetes and its Third-Party Service Providers, licensors and suppliers to you under all circumstances for all damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence), or otherwise) shall not exceed the amount paid by you, if any, for accessing our Services. If any portion of this limitation of liability is found to be invalid, liability is limited to the fullest extent permitted by law. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Defeat Diabetes and you. The Services would not be provided without such limitations.
All actions shall be subject to the limitations set forth in these Terms and Conditions.
21. INTELLECTUAL PROPERTY
Software. You acknowledge and agree that the Services and all intellectual property rights associated with the Services are, and shall remain, the property of Defeat Diabetes (and, where applicable, its licensors). Furthermore, you acknowledge and agree that the source and object code of the Website and/or Mobile App and the format, directories, queries, algorithms, structure and organization of the Website and/or Mobile App are the intellectual property and proprietary and confidential information of Defeat Diabetes and its licensors and suppliers. Except as expressly stated in these Terms and Conditions, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in these Terms and Conditions are hereby reserved and retained by Defeat Diabetes.
Trademarks. Defeat Diabetes, defeatdiabetes.com.au and the Defeat Diabetes logo (collectively, the “Defeat Diabetes Marks”) are trademarks or registered trademarks of Defeat Diabetes. Other trademarks, service marks, graphics, logos and domain names appearing on the Website, Mobile App or in other content provided to you during or relating to your use of the Services may be the trademarks of third-parties. Neither your use of the Services, nor these Terms and Conditions, grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Defeat Diabetes Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Defeat Diabetes Marks generated as a result of your use of the Services will inure to the benefit of Defeat Diabetes and you agree to assign, and hereby do assign, all such goodwill to Defeat Diabetes. You shall not at any time, nor shall you assist others to, challenge Defeat Diabetes’ right, title, or interest in or to, or the validity of, the Defeat Diabetes Marks.
Copyrighted Materials; Copyright Notice. All content and other materials available on or through the Services, including without limitation the Defeat Diabetes Marks, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Defeat Diabetes or are the property of Defeat Diabetes’ licensors and suppliers. Except as explicitly provided, neither your use of the Services nor these Terms and Conditions grant you any right, title or interest in or to any such content or materials.
Copyright Complaints. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate the rights of any user to access or use our Services (or any part thereof) who infringe upon the intellectual property rights of us or others. If you have evidence, know, or have a good faith belief that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information:
a physical or electronic signature of the owner of the copyright or a person authorised to act on behalf of the owner;
identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website and/or Mobile App are covered by a single notification, a representative list of such works);
identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website and/or Mobile App;
your name, mailing address, telephone number and email address;
a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
a statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact us. Any notification to us under this clause should be sent to us via email at support@DefeatDiabetes.com.au.
Without limiting any indemnification provisions of these Terms and Conditions, you agree to indemnify, hold harmless and, at our option, defend Defeat Diabetes and its officers, directors, members, employees, stockholders, managers, agents and representatives (collectively, “Defeat Diabetes Indemnified Parties”) from any and all third party claims, actions, demands, causes of action, liability, damages and/or costs (including, but not limited to, reasonable legal costs and expenses) (collectively, “Claims”) arising from:
your improper use of the Services or our products or offerings;
your violation of these Terms and Conditions;
your provision to Defeat Diabetes or any of the Indemnified Parties of information or other data;
your infringement or alleged infringement, or the infringement or use (or alleged infringement or alleged use) by any other user of your account, of any intellectual property or other right of any person or entity; or
your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
The Defeat Diabetes Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the Defeat Diabetes Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Defeat Diabetes Indemnified Parties.
23. GOVERNING LAW AND JURISDICTION
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Victoria, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the Services or these Terms and Conditions shall be commenced only in the state or federal courts located in Victoria and each party irrevocably and unconditionally submits to the -exclusive jurisdiction of such courts and any courts entitled to hear appeals from those courts for the purposes of litigating any such action, and waives any right to object to proceedings being brought in those courts.
24. TERM AND TERMINATION
Termination. These Terms and Conditions will remain in full force and effect while you use our Services, until the Terms and Conditions expire or are otherwise terminated. We may terminate your use of, or access to, the Service in accordance with these Terms and Conditions, where stated.
Effect of Termination; Survival. Termination of these Terms and Conditions automatically terminates all rights and licenses granted to you under these Terms and Conditions, including all rights to use the Services, except that all terms that by their nature may survive termination shall be deemed to survive such termination (including, without limitation, intellectual property (clause 21), any disclaimers, limitations of liability (clause 20), User Content license (clause 12), governing law and jurisdiction (clause 23)).
Subsequent to termination, Defeat Diabetes reserves the right to exercise whatever means it deems necessary to prevent your unauthorised use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
Legal Action. If we, in our sole discretion, take legal action against you in connection with any actual or suspected breach of these Terms and Conditions, we will be entitled to recover from you as part of such legal action, and you agree to pay, our reasonable legal costs incurred as a result of such legal action. You agree that the Defeat Diabetes Parties will have no legal obligation or other liability to you or to any third-party Claim against you arising out of or relating to any termination of these Terms and Conditions.
25. MISCELLANEOUS TERMS
Amendment. These Terms and Conditions may be amended by us at any time. We will post any amendment to these Terms and Conditions on our Website, Mobile App or will email you to give notice of any such amendment. Your continued use of the Services after notice of any such amendment has been provided by us, constitutes your acceptance of any such amendment to the Terms and Conditions.
Severability. If any provision of these terms shall be found by a court of competent jurisdiction to be unlawful, invalid, void or voidable, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
Entire Agreement. These Terms & Conditions are the entire agreement between you and us relating to the subject matter herein.
Assignment. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees.
Waiver. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
Relationship of Parties. These Terms and Conditions do not intend to create a partnership, joint venture or agency relationship between the parties.
Privacy. We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
Force Majeure. A party will not be liable for any delay or failure to perform its obligations under these Terms and Conditions if such delay is due to any circumstance beyond its reasonable control (“Force Majeure”). Force Majeure means an unforeseeable event beyond the control of a party which occurs without fault or negligence of the affected party, including acts of God, war, riot, insurrection, vandalism, sabotage, strike, lockout, ban, limitation of work or other industrial disturbance, law, rule or regulation of any government or governmental agency and executive or administrative order or act of general or particular application, and the consequences of epidemics and pandemics (including COVID-19).
Email. The parties agree to sending and receiving electronic mail. Each party releases the other from any liability it may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.